[Congressional Record Volume 166, Number 12 (Tuesday, January 21, 2020)]
[Senate]
[Pages S289-S377]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES

  The CHIEF JUSTICE. The Senate will convene as a Court of Impeachment.


                              The Journal

  The CHIEF JUSTICE. If there is no objection, the Journal of 
proceedings of the trial are approved to date.
  The CHIEF JUSTICE. I am aware of one Senator present who was unable 
to take the impeachment oath last Thursday.

[[Page S290]]

  Will he please rise and raise his right hand and be sworn.
  Do you solemnly swear that in all things pertaining to the trial of 
the impeachment of Donald John Trump, President of the United States, 
now pending, you will do impartial justice according to the 
Constitution and laws, so help you God?
  Mr. INHOFE. I do.
  The CHIEF JUSTICE. The Secretary will note the name of the Senator 
who has just taken the oath and will present the oath book to him for 
signature.


 =========================== NOTE =========================== 

  
  On page S290, January 21, 2020, first column, the following 
appears: The CHIEF JUSTICE. The Secretary will note the name of 
the Senator who has just taken the oath and will present the oath 
to him for signature.
  
  The online Record has been corrected to read: The CHIEF JUSTICE. 
The Secretary will note the name of the Senator who has just taken 
the oath and will present the oath book to him for signature.


 ========================= END NOTE ========================= 


  The CHIEF JUSTICE. The Sergeant at Arms will make the proclamation.
  The Sergeant at Arms, Michael C. Stenger, made proclamation as 
follows:

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

  The CHIEF JUSTICE. The majority leader is recognized.
  Mr. McCONNELL. Mr. Chief Justice, I would like to state that, for the 
information of all Senators, the trial briefs filed yesterday by the 
parties have been printed and are now at each Senator's desk.


    Unanimous Consent Agreement--Authority to Print Senate Documents

  The CHIEF JUSTICE. The following documents will be submitted to the 
Senate for printing in the Senate Journal: the precept, issued January 
16, 2020; the writ of summons, issued on January 16, 2020; and the 
receipt of summons, dated January 16, 2020.
  The following documents, which were received by the Secretary of the 
Senate, will be submitted to the Senate for printing in the Senate 
Journal, pursuant to the order of January 16, 2020: the answer of 
Donald John Trump, President of the United States, to the Articles of 
Impeachment exhibited by the House of Representatives against him on 
January 16, 2020, received by the Secretary of the Senate on January 
18, 2020; the trial brief filed by the House of Representatives, 
received by the Secretary of the Senate on January 18, 2020; the trial 
brief filed by the President, received by the Secretary of the Senate 
on January 20, 2020; the replication of the House of Representatives, 
received by the Secretary of the Senate on January 20, 2020; and the 
rebuttal brief filed by the House of Representatives, received by the 
Secretary of the Senate on January 21, 2020.
  Without objection, the foregoing documents will be printed in the 
Congressional Record.
  The documents follow:

            [In Proceedings Before the United States Senate]

                  Answer of President Donald J. Trump

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

       The Articles of Impeachment submitted by House Democrats 
     are a dangerous attack on the right of the American people to 
     freely choose their President. This is a brazen and unlawful 
     attempt to overturn the results of the 2016 election and 
     interfere with the 2020 election--now just months away. The 
     highly partisan and reckless obsession with impeaching the 
     President began the day he was inaugurated and continues to 
     this day.
       The Articles of Impeachment are constitutionally invalid on 
     their face. They fail to allege any crime or violation of law 
     whatsoever, let alone ``high Crimes and Misdemeanors,'' as 
     required by the Constitution. They are the result of a 
     lawless process that violated basic due process and 
     fundamental fairness. Nothing in these Articles could permit 
     even beginning to consider removing a duly elected President 
     or warrant nullifying an election and subverting the will of 
     the American people.
       The Articles of Impeachment now before the Senate are an 
     affront to the Constitution of the United States, our 
     democratic institutions, and the American people. The 
     Articles themselves--and the rigged process that brought them 
     here--are a transparently political act by House Democrats. 
     They debase the grave power of impeachment and the solemn 
     responsibility that power entails. They must be rejected. The 
     House process violated every precedent and every principle of 
     fairness governing impeachment inquiries for more than 150 
     years. Even so, all that House Democrats have succeeded in 
     proving is that the President did absolutely nothing wrong.
       President Trump categorically and unequivocally denies each 
     and every allegation in both Articles of Impeachment. The 
     President reserves all rights and all available defenses to 
     the Articles of Impeachment. For the reasons set forth in 
     this Answer and in the forthcoming Trial Brief, the Senate 
     must reject the Articles of Impeachment.


          I. the first article of impeachment must be rejected

       The first Article fails on its face to state an impeachable 
     offense. It alleges no crimes at all, let alone ``high Crimes 
     and Misdemeanors,'' as required by the Constitution. In fact, 
     it alleges no violation of law whatsoever. House Democrats' 
     ``abuse of power'' claim would do lasting damage to the 
     separation of powers under the Constitution.
       The first Article also fails on the facts, because 
     President Trump has not in any way ``abused the powers of the 
     Presidency.'' At all times, the President has faithfully and 
     effectively executed the duties of his Office on behalf of 
     the American people. The President's actions on the July 25, 
     2019, telephone call with President Volodymyr Zelensky of 
     Ukraine (the ``July 25 call''), as well as on the earlier 
     April 21, 2019, telephone call (the ``April 21 call''), and 
     in all surrounding and related events, were constitutional, 
     perfectly legal, completely appropriate, and taken in 
     furtherance of our national interest.
       President Trump raised the important issue of burden 
     sharing on the July 25 call, noting that other European 
     countries such as Germany were not carrying their fair share. 
     President Trump also raised the important issue of Ukrainian 
     corruption. President Zelensky acknowledged these concerns on 
     that same call.
       Despite House Democrats having run an entirely illegitimate 
     and one-sided process, several simple facts were established 
     that prove the President did nothing wrong:
       First, the transcripts of both the April 21 call and the 
     July 25 call make absolutely clear that the President did 
     nothing wrong.
       Second, President Zelensky and other Ukrainian officials 
     have repeatedly confirmed that the call was ``good'' and 
     ``normal,'' that there was no quid pro quo, and that no one 
     pressured them on anything.
       Third, the two individuals who have stated for the record 
     that they spoke to the President about the subject actually 
     exonerate him. Ambassador to the European Union Gordon 
     Sondland stated that when he asked the President what he 
     wanted from Ukraine, the President said: ``I want nothing. I 
     want nothing. I want no quid pro quo.'' Senator Ron Johnson 
     reported that, when he asked the President whether there was 
     any connection between security assistance and 
     investigations, the President responded: ``No way. I would 
     never do that.'' House Democrats ignore these facts and 
     instead rely entirely on assumptions, presumptions, and 
     speculation from witnesses with no first-hand knowledge. 
     Their accusations are founded exclusively on inherently 
     unreliable hearsay that would never be accepted in any court 
     in our country.
       Fourth, the bilateral presidential meeting took place in 
     the ordinary course, and the security assistance was sent, 
     all without the Ukrainian government announcing any 
     investigations.
       Not only does the evidence collected by House Democrats 
     refute each and every one of the factual predicates 
     underlying the first Article, the transcripts of the April 21 
     call and the July 25 call disprove what the Article alleges. 
     When the House Democrats realized this, Mr. Schiff created a 
     fraudulent version of the July 25 call and read it to the 
     American people at a congressional hearing, without 
     disclosing that he was simply making it all up. The fact that 
     Mr. Schiff felt the need to fabricate a false version of the 
     July 25 call proves that he and his colleagues knew there was 
     absolutely nothing wrong with that call.
       House Democrats ran a fundamentally flawed and illegitimate 
     process that denied the President every basic right, 
     including the right to have counsel present, the right to 
     cross-examine witnesses, and the right to present evidence. 
     Despite all this, the information House Democrats assembled 
     actually disproves their claims against the President. The 
     President acted at all times with full constitutional and 
     legal authority and in our national interest. He continued 
     his Administration's policy of unprecedented support for 
     Ulaaine, including the delivery of lethal military aid that 
     was denied to the Ukrainians by the prior administration.
       The first Article is therefore constitutionally invalid, 
     founded on falsehoods, and must be rejected.


         II. the second article of impeachment must be rejected

       The second Article also fails on its face to state an 
     impeachable offense. It does not allege any crime or 
     violation of law whatsoever. To the contrary, the President's 
     assertion of legitimate Executive Branch confidentiality 
     interests grounded in the separation of powers cannot 
     constitute obstruction of Congress.
       Furthermore, the notion that President Trump obstructed 
     Congress is absurd. President Trump acted with extraordinary 
     and unprecedented transparency by declassifying and releasing 
     the transcript of the July 25 call that is at the heart of 
     this matter.
       Following the President's disclosure of the July 25 call 
     transcript, House Democrats issued a series of 
     unconstitutional subpoenas for documents and testimony. They 
     issued their subpoenas without a congressional vote and, 
     therefore, without constitutional authority. They sought 
     testimony from a number of the President's closest advisors 
     despite the fact that, under longstanding, bipartisan 
     practice of prior administrations of both political parties 
     and similarly longstanding guidance from the Department of 
     Justice, those advisors are absolutely immune from compelled 
     testimony before Congress related to their official duties. 
     And

[[Page S291]]

     they sought testimony disclosing the Executive Branch's 
     confidential communications and internal decision-making 
     processes on matters of foreign relations and national 
     security, despite the well-established constitutional 
     privileges and immunities protecting such information. As the 
     Supreme Court has recognized, the President's constitutional 
     authority to protect the confidentiality of Executive Branch 
     information is at its apex in the field of foreign relations 
     and national security. House Democrats also barred the 
     attendance of Executive Branch counsel at witness 
     proceedings, thereby preventing the President from protecting 
     important Executive Branch confidentiality interests.
       Notwithstanding these abuses, the Trump Administration 
     replied appropriately to these subpoenas and identified their 
     constitutional defects. Tellingly, House Democrats did not 
     seek to enforce these constitutionally defective subpoenas in 
     court. To the contrary, when one subpoena recipient sought a 
     declaratory judgment as to the validity of the subpoena he 
     had received, House Democrats quickly withdrew the subpoena 
     to prevent the court from issuing a ruling.
       The House may not usurp Executive Branch authority and may 
     not bypass our Constitution's system of checks and balances. 
     Asserting valid constitutional privileges and immunities 
     cannot be an impeachable offense. The second Article is 
     therefore invalid and must be rejected.


                            III. conclusion

       The Articles of Impeachment violate the Constitution. They 
     are defective in their entirety. They are the product of 
     invalid proceedings that flagrantly denied the President any 
     due process rights. They rest on dangerous distortions of the 
     Constitution that would do lasting damage to our structure of 
     government.
       In the the first Article, the House attempts to seize the 
     President's power under Article II of the Constitution to 
     determine foreign policy. In the second Article, the House 
     attempts to control and penalize the assertion of the 
     Executive Branch's constitutional privileges, while 
     simultaneously seeking to destroy the Framers' system of 
     checks and balances. By approving the Articles, the House 
     violated our constitutional order, illegally abused its power 
     of impeachment, and attempted to obstruct President Trump's 
     ability to faithfully execute the duties of his Office. They 
     sought to undermine his authority under Article II of the 
     Constitution, which vests the entirety of ``[t]he executive 
     Power'' in ``a President of the United States of America.''
       In order to preserve our constitutional structure of 
     government, to reject the poisonous partisanship that the 
     Framers warned against, to ensure one-party political 
     impeachment vendettas do not become the ``new normal,'' and 
     to vindicate the will of the American people, the Senate must 
     reject both Articles of Impeachment. In the end, this entire 
     process is nothing more than a dangerous attack on the 
     American people themselves and their fundamental right to 
     vote.

                                             Jay Alan Sekulow,

                             Counsel to President Donald J. Trump,
                                                   Washington, DC.
                                                 Pat A. Cipollone,
                        Counsel to the President, The White House.
       Dated this 18th day of January, 2020.
                                  ____


 [In the Senate of the United States Sitting as a Court of Impeachment]

             In re Impeachment of President Donald J. Trump

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


                              INTRODUCTION

       President Donald J. Trump used his official powers to 
     pressure a foreign government to interfere in a United States 
     election for his personal political gain, and then attempted 
     to cover up his scheme by obstructing Congress's 
     investigation into his misconduct. The Constitution provides 
     a remedy when the President commits such serious abuses of 
     his office: impeachment and removal. The Senate must use that 
     remedy now to safeguard the 2020 U.S. election, protect our 
     constitutional form of government, and eliminate the threat 
     that the President poses to America's national security.
       The House adopted two Articles of Impeachment against 
     President Trump: the first for abuse of power, and the second 
     for obstruction of Congress.\1\ The evidence overwhelmingly 
     establishes that he is guilty of both. The only remaining 
     question is whether the members of the Senate will accept and 
     carry out the responsibility placed on them by the Framers of 
     our Constitution and their constitutional Oaths.


                             Abuse of Power

       President Trump abused the power of his office by 
     pressuring the government of Ukraine to interfere in the 2020 
     U.S. Presidential election for his own benefit. In order to 
     pressure the recently elected Ukrainian President, Volodymyr 
     Zelensky, to announce investigations that would advance 
     President Trump's political interests and his 2020 reelection 
     bid, the President exercised his official power to withhold 
     from Ukraine critical U.S. government support--$391 million 
     of vital military aid and a coveted White House meeting.\2\
       During a July 25, 2019 phone call, after President Zelensky 
     expressed gratitude to President Trump for American military 
     assistance, President Trump immediately responded by asking 
     President Zelensky to ``do us a favor though.'' \3\ The 
     ``favor'' he sought was for Ukraine to publicly announce two 
     investigations that President Trump believed would improve 
     his domestic political prospects.\4\ One investigation 
     concerned former Vice President Joseph Biden, Jr.--a 
     political rival in the upcoming 2020 election--and the false 
     claim that, in seeking the removal of a corrupt Ukrainian 
     prosecutor four years earlier, then-Vice President Biden had 
     acted to protect a company where his son was a board 
     member.\5\ The second investigation concerned a debunked 
     conspiracy theory that Russia did not interfere in the 2016 
     Presidential election to aid President Trump, but instead 
     that Ukraine interfered in that election to aid President 
     Trump's opponent, Hillary Clinton.\6\
       These theories were baseless. There is no credible evidence 
     to support the allegation that the former Vice President 
     acted improperly in encouraging Ukraine to remove an 
     incompetent and corrupt prosecutor in 2016.\7\ And the U.S. 
     Intelligence Community, the Senate Select Committee on 
     Intelligence, and Special Counsel Robert S. Mueller, III 
     unanimously determined that Russia, not Ukraine, interfered 
     in the 2016 U.S. Presidential election ``in sweeping and 
     systematic fashion'' to help President Trump's campaign.\8\ 
     In fact, the theory that Ukraine, rather than Russia, 
     interfered in the 2016 election has been advanced by Russia's 
     intelligence services as part of Russia's propaganda 
     campaign.\9\
       Although these theories were groundless, President Trump 
     sought a public announcement by Ukraine of investigations 
     into them in order to help his 2020 reelection campaign.\10\ 
     An announcement of a Ukrainian investigation into one of his 
     key political rivals would be enormously valuable to 
     President Trump in his efforts to win reelection in 2020--
     just as the FBI's investigation into Hillary Clinton's emails 
     had helped him in 2016. And an investigation suggesting that 
     President Trump did not benefit from Russian interference in 
     the 2016 election would give him a basis to assert--falsely--
     that he was the victim, rather than the beneficiary, of 
     foreign meddling in the last election. Ukraine's announcement 
     of that investigation would bolster the perceived legitimacy 
     of his Presidency and, therefore, his political standing 
     going into the 2020 race.
       Overwhelming evidence shows that President Trump solicited 
     these two investigations in order to obtain a personal 
     political benefit, not because the investigations served the 
     national interest.\11\ The President's own National Security 
     Advisor characterized the efforts to pressure Ukraine to 
     announce investigations in exchange for official acts as a 
     ``drug deal.'' \12\ His Acting Chief of Staff candidly 
     confessed that President Trump's decision to withhold 
     security assistance was tied to his desire for an 
     investigation into alleged Ukrainian interference in the 2020 
     election, stated that there ``is going to be political 
     influence in foreign policy,'' and told the American people 
     to ``get over it.'' \13\ Another one of President Trump's key 
     national security advisors testified that the agents pursuing 
     the President's bidding were ``involved in a domestic 
     political errand,'' not national security policy.\14\ And, 
     immediately after speaking to President Trump by phone about 
     the investigations, one of President Trump's ambassadors 
     involved in carrying out the President's agenda in Ukraine 
     said that President Trump ``did not give a [expletive] about 
     Ukraine,'' and instead cared only about ``big stuff'' that 
     benefitted him personally, like ``the Biden investigation.'' 
     \15\
       To execute his scheme, President Trump assigned his 
     personal attorney, Rudy Giuliani, the task of securing the 
     Ukrainian investigations.\16\ Mr. Giuliani repeatedly and 
     publicly emphasized that he was not engaged in foreign policy 
     but was instead seeking a personal benefit for his client, 
     Donald Trump.\17\
       President Trump used the vast powers of his office as 
     President to pressure Ukraine into announcing these 
     investigations. President Trump illegally withheld $391 
     million in taxpayer-funded military assistance to Ukraine 
     that Congress had appropriated for expenditure in fiscal year 
     2019.\18\ That assistance was a critical part of long-running 
     bipartisan efforts to advance the security interests of the 
     United States by ensuring that Ukraine is properly equipped 
     to defend itself against Russian aggression.\19\ Every 
     relevant Executive Branch agency agreed that continued 
     American support for Ukraine was in America's national 
     security interests, but President Trump ignored that view and 
     personally ordered the assistance held back, even after 
     serious concerns--now confirmed by the Government 
     Accountability Office (GAO) \20\--were raised within his 
     Administration about the legality of withholding funding that 
     Congress had already appropriated.\21\ President Trump 
     released the funding only after he got caught trying to use 
     the security assistance as leverage to obtain foreign 
     interference in his reelection campaign. When news of his 
     scheme to withhold the funding broke, and shortly after 
     investigative committees in the House opened an 
     investigation, President Trump relented and released the 
     aid.\22\

[[Page S292]]

       As part of the same pressure campaign, President Trump 
     withheld a crucial White House meeting with President 
     Zelensky--a meeting that he had previously promised and that 
     was a shared goal of both the United States and Ukraine.\23\ 
     Such face-to-face Oval Office meetings with a U.S. President 
     are immensely important for international credibility.\24\ In 
     this case, an Oval Office meeting with President Trump was 
     critical to the newly elected Ukrainian President because it 
     would signal to Russia--which had invaded Ukraine in 2014 and 
     still occupied Ukrainian territory--that Ukraine could count 
     on American support.\25\ That meeting still has not occurred, 
     even though President Trump has met with over a dozen world 
     leaders at the White House since President Zelensky's 
     election--including an Oval Office meeting with Russia's top 
     diplomat.\26\
       President Trump's solicitation of foreign interference in 
     our elections to secure his own political success is 
     precisely why the Framers of our Constitution provided 
     Congress with the power to impeach a corrupt President and 
     remove him from office. One of the Founding generation's 
     principal fears was that foreign governments would seek to 
     manipulate American elections--the defining feature of our 
     self-government. Thomas Jefferson and John Adams warned of 
     ``foreign Interference, Intrigue, Influence'' and predicted 
     that, ``as often as Elections happen, the danger of foreign 
     Influence recurs.'' \27\ The Framers therefore would have 
     considered a President's attempt to corrupt America's 
     democratic processes by demanding political favors from 
     foreign powers to be a singularly pernicious act. They 
     designed impeachment as the remedy for such misconduct 
     because a President who manipulates U.S. elections to his 
     advantage can avoid being held accountable by the voters 
     through those same elections. And they would have viewed a 
     President's efforts to encourage foreign election 
     interference as all the more dangerous where, as here, those 
     efforts are part of an ongoing pattern of misconduct for 
     which the President is unrepentant.
       The House of Representatives gathered overwhelming evidence 
     of President Trump's misconduct, which is summarized in the 
     attached Statement of Material Facts and in the comprehensive 
     reports prepared by the House Permanent Select Committee on 
     Intelligence and the Committee on the Judiciary.\28\ On the 
     strength of that evidence, the House approved the First 
     Article of Impeachment against President Trump for abuse of 
     power.\29\ The Senate should now convict him on that Article. 
     President Trump's continuing presence in office undermines 
     the integrity of our democratic processes and endangers our 
     national security.


                        Obstruction of Congress

       President Trump obstructed Congress by undertaking an 
     unprecedented campaign to prevent House Committees from 
     investigating his misconduct. The Constitution entrusts the 
     House with the ``sole Power of Impeachment.'' \30\ The 
     Framers thus ensured what common sense requires--that the 
     House, and not the President, determines the existence, 
     scope, and procedures of an impeachment investigation into 
     the President's conduct. The House cannot conduct such an 
     investigation effectively if it cannot obtain information 
     from the President or the Executive Branch about the 
     Presidential misconduct it is investigating. Under our 
     constitutional system of divided powers, a President cannot 
     be permitted to hide his offenses from view by refusing to 
     comply with a Congressional impeachment inquiry and ordering 
     Executive Branch agencies to do the same. That conclusion is 
     particularly important given the Department of Justice's 
     position that the President cannot be indicted. If the 
     President could both avoid accountability under the criminal 
     laws and preclude an effective impeachment investigation, he 
     would truly be above the law.
       But that is what President Trump has attempted to do, and 
     why President Trump's conduct is the Framers' worst 
     nightmare. He directed his Administration to defy every 
     subpoena issued in the House's impeachment investigation.\31\ 
     At his direction, the White House, Department of State, 
     Department of Defense, Department of Energy, and Office of 
     Management and Budget (OMB) refused to produce a single 
     document in response to those subpoenas.\32\ Several 
     witnesses also followed President Trump's orders, defying 
     requests for voluntary appearances and lawful subpoenas, and 
     refusing to testify.\33\ And President Trump's interference 
     in the House's impeachment inquiry was not an isolated 
     incident--it was consistent with his past efforts to obstruct 
     the Special Counsel's investigation into Russian interference 
     in the 2016 election.\34\
       By categorically obstructing the House's impeachment 
     inquiry, President Trump claimed the House's sole impeachment 
     power for himself and sought to shield his misconduct from 
     Congress and the American people. Although his sweeping 
     cover-up effort ultimately failed--seventeen public officials 
     courageously upheld their duty, testified, and provided 
     documentary evidence of the President's wrongdoing \35\--his 
     obstruction will do long-lasting and potentially irreparable 
     damage to our constitutional system of divided powers if it 
     goes unchecked.
       Based on the overwhelming evidence of the President's 
     misconduct in attempting to thwart the impeachment inquiry, 
     the House approved the Second Article of Impeachment, for 
     obstruction of Congress.\36\ The Senate should now convict 
     President Trump on that Article. If it does not, future 
     Presidents will feel empowered to resist any investigation 
     into their own wrongdoing, effectively nullifying Congress's 
     power to exercise the Constitution's most important safeguard 
     against Presidential misconduct. That outcome would not only 
     embolden this President to continue seeking foreign 
     interference in our elections but would telegraph to future 
     Presidents that they are free to engage in serious misconduct 
     without accountability or repercussions.
       The Constitution entrusts Congress with the solemn task of 
     impeaching and removing from office a President who engages 
     in ``Treason, Bribery, or other high Crimes and 
     Misdemeanors.'' \37\ The impeachment power is an essential 
     check on the authority of the President, and Congress must 
     exercise this power when the President places his personal 
     and political interests above those of the Nation. President 
     Trump has done exactly that. His misconduct challenges the 
     fundamental principle that Americans should decide American 
     elections, and that a divided system of government, in which 
     no single branch operates without the check and balance of 
     the others, preserves the liberty we all hold dear.
       The country is watching to see how the Senate responds. 
     History will judge each Senator's willingness to rise above 
     partisan differences, view the facts honestly, and defend the 
     Constitution. The outcome of these proceedings will determine 
     whether generations to come will enjoy a safe and secure 
     democracy in which the President is not a king, and in which 
     no one, particularly the President, is above the law.


                               BACKGROUND

     I. Constitutional Grounds for Presidential Impeachment
       To understand why President Trump must be removed from 
     office now, it is necessary to understand why the Framers of 
     our Constitution included the impeachment power as an 
     essential part of the republic they created.
       The Constitution entrusts Congress with the exclusive power 
     to impeach the President and to convict and remove him from 
     office. Article I vests the House with the ``sole Power of 
     Impeachment,'' \38\ and the Senate with the ``sole Power to 
     try all Impeachments'' and to ``convict[]'' upon a vote of 
     two thirds of its Members.\39\ The Constitution specifies 
     that the President ``shall be removed from Office on 
     Impeachment for, and Conviction of, Treason, Bribery, or 
     other high Crimes and Misdemeanors.'' \40\ The Constitution 
     further provides that the Senate may vote to permanently 
     ``disqualif[y]'' an impeached President from government 
     service.\41\
       The President takes an oath to ``faithfully execute the 
     Office of the President of the United States.'' \42\ 
     Impeachment imposes a check on a President who violates that 
     oath by using the powers of the office to advance his own 
     interests at the expense of the national interest. Fresh from 
     their experience under British rule by a king, the Framers 
     were concerned that corruption posed a grave threat to their 
     new republic. As George Mason warned the other delegates to 
     the Constitutional Convention, ``if we do not provide against 
     corruption, our government will soon be at an end.'' \43\ The 
     Framers stressed that a President who ``act[s] from some 
     corrupt motive or other'' or ``willfully abus[es] his trust'' 
     must be impeached,\44\ because the President ``will have 
     great opportunitys of abusing his power.'' \45\
       The Framers recognized that a President who abuses his 
     power to manipulate the democratic process cannot properly be 
     held accountable by means of the very elections that he has 
     rigged to his advantage.\46\ The Framers specifically feared 
     a President who abused his office by sparing ``no efforts or 
     means whatever to get himself re-elected.'' \47\ Mason asked: 
     ``Shall the man who has practised corruption & by that means 
     procured his appointment in the first instance, be suffered 
     to escape punishment, by repeating his guilt?'' \48\
       Thus, the Framers resolved to hold the President 
     ``impeachable whilst in office'' as ``an essential security 
     for the good behaviour of the Executive.'' \49\ By empowering 
     Congress to immediately remove a President when his 
     misconduct warrants it, the Framers established the people's 
     elected representatives as the ultimate check on a President 
     whose corruption threatened our democracy and the Nation's 
     core interests.\50\
       The Framers particularly feared that foreign influence 
     could undermine our new system of self-government.\51\ In his 
     farewell address to the Nation, President George Washington 
     warned Americans ``to be constantly awake, since history and 
     experience prove that foreign influence is one of the most 
     baneful foes of republican government.'' \52\ Alexander 
     Hamilton cautioned that the ``most deadly adversaries of 
     republican government'' may come ``chiefly from the desire in 
     foreign powers to gain an improper ascendant in our 
     councils.'' \53\ James Madison worried that a future 
     President could ``betray his trust to foreign powers,'' which 
     ``might be fatal to the Republic.'' \54\ And, of particular 
     relevance now, in their personal correspondence about 
     ``foreign Interference,'' Thomas Jefferson and John Adams 
     discussed their apprehension that ``as often as Elections 
     happen, the danger of foreign Influence recurs.'' \55\
       Guided by these concerns, the Framers included within the 
     Constitution various

[[Page S293]]

     mechanisms to ensure the President's accountability and 
     protect against foreign influence--including a requirement 
     that Presidents be natural-born citizens of the United 
     States,\56\ prohibitions on the President's receipt of gifts, 
     emoluments, or titles from foreign states,\57\ prohibitions 
     on profiting from the Presidency,\58\ and, of course, the 
     requirement that the President face reelection after a four-
     year Term.\59\ But the Framers provided for impeachment as a 
     final check on a President who sought foreign interference to 
     serve his personal interests, particularly to secure his own 
     reelection.
       In drafting the Impeachment Clause, the Framers adopted a 
     standard flexible enough to reach the full range of potential 
     Presidential misconduct: ``Treason, Bribery, or other high 
     Crimes and Misdemeanors.'' \60\ The decision to denote 
     ``Treason'' and ``Bribery'' as impeachable conduct reflects 
     the Founding-era concerns over foreign influence and 
     corruption. But the Framers also recognized that ``many great 
     and dangerous offenses'' could warrant impeachment and 
     immediate removal of a President from office.\61\ These 
     ``other high Crimes and Misdemeanors'' provided for by the 
     Constitution need not be indictable criminal offenses. 
     Rather, as Hamilton explained, impeachable offenses involve 
     an ``abuse or violation of some public trust'' and are of ``a 
     nature which may with peculiar propriety be denominated 
     political, as they relate chiefly to injuries done 
     immediately to the society itself.'' \62\ The Framers thus 
     understood that ``high crimes and misdemeanors'' would 
     encompass acts committed by public officials that inflict 
     severe harm on the constitutional order.\63\
     II. The House's Impeachment of President Donald J. Trump and 
         Presentation of This Matter to the Senate
       Committees of the House have undertaken investigations into 
     allegations of misconduct by President Trump and his 
     Administration. On September 9, 2019, after evidence surfaced 
     that the President and his associates were seeking Ukraine's 
     assistance in the President's reelection, the House Permanent 
     Select Committee on Intelligence, together with the 
     Committees on Oversight and Reform and Foreign Affairs, 
     announced a joint investigation into the President's conduct 
     and issued document requests to the White House and State 
     Department.\64\
       On September 24, 2019, Speaker Nancy Pelosi announced that 
     the House was ``moving forward with an official impeachment 
     inquiry'' and directed the Committees to ``proceed with their 
     investigations under that umbrella of [an] impeachment 
     inquiry.'' \65\ They subsequently issued multiple subpoenas 
     for documents as well as requests and subpoenas for 
     witness interviews and testimony.\66\ On October 31, 2019, 
     the House approved a resolution adopting procedures to 
     govern the impeachment inquiry.\67\
       Both before and after Speaker Pelosi's announcement, 
     President Trump categorically refused to provide any 
     information in response to the House's inquiry. He stated 
     that ``we're fighting all the subpoenas,'' and that ``I have 
     an Article II, where I have the right to do whatever I want 
     as president.'' \68\ Through his White House Counsel, the 
     President later directed his Administration not to 
     cooperate.\69\ Heeding the President's directive, the 
     Executive Branch did not produce any documents in response to 
     subpoenas issued by the three investigating Committees,\70\ 
     and nine current or former Administration officials, 
     including the President's top aides, continue to refuse to 
     comply with subpoenas for testimony.\71\
       Notwithstanding the President's attempted cover-up, 
     seventeen current and former government officials 
     courageously complied with their legal obligations and 
     testified before the three investigating Committees in 
     depositions or transcribed interviews that all Members of the 
     Committees--as well as staff from the Majority and Minority--
     were permitted to attend.\72\ Some witnesses produced 
     documentary evidence in their possession. In late November 
     2019, twelve of these witnesses, including three requested by 
     the Minority, testified in public hearings convened by the 
     Intelligence Committee.\73\
       Stressing the ``overwhelming'' evidence of misconduct 
     already uncovered by the investigation, on December 3, 2019, 
     the Intelligence Committee released a detailed nearly 300-
     page report documenting its findings, which it transmitted to 
     the Judiciary Committee.\74\ The Judiciary Committee held 
     public hearings evaluating the constitutional standard for 
     impeachment and the evidence against President Trump--in 
     which the President's counsel was invited, but declined, to 
     participate--and then reported two Articles of Impeachment to 
     the House.\75\
       On December 18, 2019, the House voted to impeach President 
     Trump and adopted two Articles of Impeachment.\76\ The First 
     Article for Abuse of Power states that President Trump 
     ``abused the powers of the Presidency'' by ``soliciting the 
     Government of Ukraine to publicly announce investigations 
     that would benefit his reelection, harm the election 
     prospects of a political opponent, and influence the 2020 
     United States Presidential election to his advantage.'' \77\ 
     President Trump sought to ``pressure the Government of 
     Ukraine to take these steps by conditioning official United 
     States Government acts of significant value to Ukraine on its 
     public announcement of the investigations.'' \78\ President 
     Trump undertook these acts ``for corrupt purposes in pursuit 
     of personal political benefit'' \79\ and ``used the powers of 
     the Presidency in a manner that compromised the national 
     security of the United States and undermined the integrity of 
     the United States democratic process.'' \80\ These actions 
     were ``consistent'' with President Trump's ``previous 
     invitations of foreign interference in United States 
     elections,'' \81\ and demonstrated that President Trump 
     ``will remain a threat to national security and the 
     Constitution if allowed to remain in office.'' \82\
       The Second Article for Obstruction of Congress states that 
     President Trump ``abused the powers of the Presidency in a 
     manner offensive to, and subversive of, the Constitution'' 
     when he ``directed the unprecedented, categorical, and 
     indiscriminate defiance of subpoenas issued by the House of 
     Representatives pursuant to its `sole Power of Impeachment.' 
     '' \83\ Without ``lawful cause or excuse, President Trump 
     directed Executive Branch agencies, offices, and officials 
     not to comply with those subpoenas'' and ``thus interposed 
     the powers of the Presidency against the lawful subpoenas of 
     the House of Representatives, and assumed to himself 
     functions and judgments necessary to the exercise of the 
     `sole Power of Impeachment' vested by the Constitution in the 
     House of Representatives.'' \84\ The President's ``complete 
     defiance of an impeachment inquiry . . . served to cover up 
     the President's own repeated misconduct and to seize and 
     control the power of impeachment.'' \85\ President Trump's 
     misconduct was ``consistent'' with his ``previous efforts to 
     undermine United States Government investigations into 
     foreign interference in United States elections,'' \86\ 
     demonstrated that he has ``acted in a manner grossly 
     incompatible with self-governance,'' and established that he 
     ``will remain a threat to the Constitution if allowed to 
     remain in office.'' \87\


                                ARGUMENT

     I. The Senate Should Convict President Trump of Abuse of 
         Power
       President Trump abused the power of the Presidency by 
     pressuring a foreign government to interfere in an American 
     election on his behalf.\88\ He solicited this foreign 
     interference to advance his reelection prospects at the 
     expense of America's national security and the security of 
     Ukraine, a vulnerable American ally at war with Russia, an 
     American adversary.\89\ His effort to gain a personal 
     political benefit by encouraging a foreign government to 
     undermine America's democratic process strikes at the core of 
     misconduct that the Framers designed impeachment to protect 
     against. President Trump's abuse of power requires his 
     conviction and removal from office.
       An officer abuses his power if he exercises his official 
     power to obtain an improper personal benefit while ignoring 
     or undermining the national interest.\90\ An abuse that 
     involves an effort to solicit foreign interference in an 
     American election is uniquely dangerous. President Trump's 
     misconduct is an impeachable abuse of power.\91\

  A. President Trump Exercised His Official Power to Pressure Ukraine 
                       into Aiding His Reelection

       After President Zelensky won a landslide victory in Ukraine 
     in April 2019, President Trump pressured the new Ukrainian 
     President to help him win his own reelection by announcing 
     investigations that were politically favorable for President 
     Trump and designed to harm his political rival.\92\
       First, President Trump sought to pressure President 
     Zelensky publicly to announce an investigation into former 
     Vice President Biden and a Ukrainian gas company, Burisma 
     Holdings, on whose board Biden's son sat.\93\ As Vice 
     President, Biden had in late 2015 encouraged the government 
     of Ukraine to remove a Ukrainian prosecutor general who had 
     failed to combat corruption.\94\ The Ukrainian parliament 
     removed the prosecutor in March 2016.\95\ President Trump and 
     his allies have asserted that the former Vice President acted 
     in order to stop an investigation of Burisma and thereby 
     protect his son.\96\ This is false. There is no evidence that 
     Vice President Biden acted improperly.\97\ He was carrying 
     out official United States policy--with the backing of the 
     international community and bipartisan support in Congress--
     when he sought the removal of the prosecutor, who was himself 
     corrupt.\98\ In addition, the prosecutor's removal made it 
     more likely that the investigation into Burisma would be 
     pursued.\99\ President Trump nevertheless sought an official 
     Ukrainian announcement of an investigation into this 
     theory.\100\
       Second, President Trump sought to pressure President 
     Zelensky publicly to announce an investigation into a 
     conspiracy theory that Ukraine had colluded with the 
     Democratic National Committee to interfere in the 2016 U.S. 
     Presidential election in order to help the campaign of 
     Hillary Clinton against then-candidate Donald Trump.\101\ 
     This theory was not only pure fiction, but malign Russian 
     propaganda.\102\ In the words of one of President Trump's own 
     top National Security Council officials, President Trump's 
     theory of Ukrainian election interference is ``a fictional 
     narrative that is being perpetrated and propagated by the 
     Russian security services themselves'' to deflect from 
     Russia's culpability and to drive a wedge between the United 
     States and Ukraine.\103\ President Trump's own FBI Director 
     confirmed that American law enforcement has ``no information 
     that indicates that Ukraine interfered with the 2016 
     presidential election.'' \104\ The Senate Select Committee on

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     Intelligence similarly concluded that Russia, not Ukraine, 
     interfered in the 2016 U.S. Presidential election.\105\ 
     President Trump nevertheless seized on the false theory and 
     sought an announcement of an investigation that would give 
     him a basis to assert that Ukraine rather than Russia 
     interfered in the 2016 election. Such an investigation would 
     eliminate a perceived threat to his own legitimacy and boost 
     his political standing in advance of the 2020 election.\106\
       In furtherance of the corrupt scheme, President Trump 
     exercised his official power to remove a perceived obstacle 
     to Ukraine's pursuit of the two sham investigations. On April 
     24, 2019--one day after the media reported that former Vice 
     President Biden would formally enter the 2020 U.S. 
     Presidential race \107\--the State Department executed 
     President Trump's order to recall the U.S. ambassador to 
     Ukraine, a well-regarded career diplomat and anti-corruption 
     crusader.\108\ President Trump needed her ``out of the way'' 
     because ``she was going to make the investigations difficult 
     for everybody.'' \109\ President Trump then proceeded to 
     exercise his official power to pressure Ukraine into 
     announcing his desired investigations by withholding valuable 
     support that Ukraine desperately needed and that he could 
     leverage only by virtue of his office: $391 million in 
     security assistance and a White House meeting.


                      Withheld Security Assistance

       President Trump illegally ordered the Office of Management 
     and Budget to withhold $391 million in taxpayer-funded 
     military and other security assistance to Ukraine.\110\ This 
     assistance would provide Ukraine with sniper rifles, rocket-
     propelled grenade launchers, counter-artillery radars, 
     electronic warfare detection and secure communications, and 
     night vision equipment, among other military equipment, to 
     defend itself against Russian forces that occupied part of 
     eastern Ukraine since 2014.\111\ The new and vulnerable 
     government headed by President Zelensky urgently needed this 
     assistance--both because the funding itself was critically 
     important to defend against Russia, and because the funding 
     was a highly visible sign of American support for President 
     Zelensky in his efforts to negotiate an end to the conflict 
     from a position of strength.\112\
       Every relevant Executive Branch agency supported the 
     assistance, which also had broad bipartisan support in 
     Congress.\113\ President Trump, however, personally ordered 
     OMB to withhold the assistance after the bulk of it had been 
     appropriated by Congress and all of the Congressionally 
     mandated conditions on assistance--including anti-corruption 
     reforms--had been met.\114\ The Government Accountability 
     Office has determined that the President's hold was illegal 
     and violated the Impoundment Control Act, which limits the 
     President's authority to withhold funds that Congress has 
     appropriated.\115\
       The evidence is clear that President Trump conditioned 
     release of the vital military assistance on Ukraine's 
     announcement of the sham investigations. During a telephone 
     conversation between the two Presidents on July 25, 
     immediately after President Zelensky raised the issue of U.S. 
     military support for Ukraine, President Trump replied: ``I 
     would like you to do us a favor though.'' \116\ President 
     Trump then explained that the ``favor'' he wanted President 
     Zelensky to perform was to begin the investigations, and 
     President Zelensky confirmed his understanding that the 
     investigations should be done ``openly.'' \117\ In describing 
     whom he wanted Ukraine to investigate, President Trump 
     mentioned only two people: former Vice President Biden and 
     his son.\118\ And in describing the claim of foreign 
     interference in the 2016 election, President Trump declared 
     that ``they say a lot of it started with Ukraine,'' and that 
     ``[w]hatever you can do, it's very important that you do it 
     if that's possible.'' \119\ Absent from the discussion was 
     any mention by President Trump of anti-corruption reforms in 
     Ukraine.
       One of President Trump's chief agents for carrying out the 
     President's agenda in Ukraine, Ambassador Gordon Sondland, 
     testified that President Trump's effort to condition release 
     of the much-needed security assistance on an announcement of 
     the investigations was as clear as ``two plus two equals 
     four.'' \120\ Sondland communicated to President Zelensky's 
     advisor that Ukraine would likely not receive assistance 
     unless President Zelensky publicly announced the 
     investigations.\121\ And President Trump later confirmed to 
     Ambassador Sondland that President Zelensky ``must announce 
     the opening of the investigations and he should want to do 
     it.'' \122\
       President Trump ultimately released the military 
     assistance, but only after the press publicly reported the 
     hold, after the President learned that a whistleblower within 
     the Intelligence Community had filed a complaint about his 
     misconduct, and after the House publicly announced an 
     investigation of the President's scheme. In short, President 
     Trump released the security assistance for Ukraine only after 
     he got caught.\123\


                      Withheld White House Meeting

       On April 21, 2019, the day President Zelensky was elected, 
     President Trump invited him to a meeting at the White 
     House.\124\ The meeting would have signaled American support 
     for the new Ukrainian administration, its strong anti-
     corruption reform agenda, and its efforts to defend against 
     Russian aggression and to make peace.\125\ President Trump, 
     however, exercised his official power to withhold the meeting 
     as leverage in his scheme to pressure President Zelensky into 
     announcing the investigations to help his reelection 
     campaign.
       The evidence is unambiguous that President Trump and his 
     agents conditioned the White House meeting on Ukraine's 
     announcement of the investigations. Ambassador Sondland 
     testified that President Trump wanted ``a public statement 
     from President Zelensky'' committing to the investigations as 
     a ``prerequisite[]'' for the White House meeting.\126\ 
     Ambassador Sondland further testified: ``I know that members 
     of this committee frequently frame these complicated issues 
     in the form of a simple question: Was there a quid pro quo? 
     As I testified previously with regard to the requested White 
     House call and the White House meeting, the answer is yes.'' 
     \127\
       To this day, President Trump maintains leverage over 
     President Zelensky. A White House meeting has still not taken 
     place,\128\ and President Trump continues publicly to urge 
     Ukraine to conduct these investigations.\129\

    B. President Trump Exercised Official Power to Benefit Himself 
                               Personally

       Overwhelming evidence demonstrates that the announcement of 
     investigations on which President Trump conditioned the 
     official acts had no legitimate policy rationale, and instead 
     were corruptly intended to assist his 2020 reelection 
     campaign.\130\
       First, although there was no basis for the two conspiracy 
     theories that President Trump advanced,\131\ public 
     announcements that these theories were being investigated 
     would be of immense political value to him--and him alone. 
     The public announcement of an investigation of former Vice 
     President Biden would yield enormous political benefits for 
     President Trump, who viewed the former Vice President as a 
     serious political rival in the 2020 U.S. Presidential 
     election. Unsurprisingly, President Trump's efforts to 
     advance the conspiracy theory accelerated after news broke 
     that Vice President Biden would run for President in 
     2020.\132\ President Trump benefited from such an 
     announcement of a criminal investigation into his 
     Presidential opponent in 2016.\133\ An announcement of a 
     criminal investigation regarding a 2020 rival would likewise 
     be extremely helpful to his reelection prospects.
       President Trump would similarly have viewed an 
     investigation into Ukrainian interference in the 2016 
     election as helpful in undermining the conclusion that he had 
     benefitted from Russian election interference in 2016, and 
     that he was the preferred candidate of President Putin--both 
     of which President Trump viewed as calling into question the 
     legitimacy of his Presidency. An announcement that Ukraine 
     was investigating its own alleged 2016 election 
     interference would have turned these facts on their head. 
     President Trump would have grounds to claim--falsely--that 
     he was elected President in 2016 not because he was the 
     beneficiary of Russian election interference, but in spite 
     of Ukrainian election interference aimed at helping his 
     opponent.
       Second, agents and associates of President Trump who helped 
     carry out his agenda in Ukraine confirmed that his efforts to 
     pressure President Zelensky into announcing the desired 
     investigations were intended for his personal political 
     benefit rather than for a legitimate policy purpose. For 
     example, after speaking with President Trump, Ambassador 
     Sondland told a colleague that President Trump ``did not give 
     a [expletive] about Ukraine,'' and instead cared only about 
     ``big stuff'' that benefitted him personally ``like the Biden 
     investigation that Mr. Giuliani was pushing.'' \134\ And Mick 
     Mulvaney, President Trump's Acting Chief of Staff, 
     acknowledged to a reporter that there was a quid pro quo with 
     Ukraine involving the military aid, conceded that ``[t]here 
     is going to be political influence in foreign policy,'' and 
     stated, ``I have news for everybody: get over it.'' \135\
       Third, the involvement of President Trump's personal 
     attorney, Mr. Giuliani--who has professional obligations to 
     the President but not the Nation--underscores that President 
     Trump sought the investigations for personal and political 
     reasons rather than legitimate foreign policy reasons. Mr. 
     Giuliani openly and repeatedly acknowledged that he was 
     pursuing the Ukrainian investigations to advance the 
     President's interests, stating: ``this isn't foreign 
     policy.'' \136\ Instead, Mr. Giuliani said that he was 
     seeking information that ``will be very, very helpful to my 
     client.'' \137\ Mr. Giuliani made similar representations to 
     the Ukrainian government. In a letter to President-elect 
     Zelensky, Mr. Giuliani stated that he ``represent[ed] him 
     [President Trump] as a private citizen, not as President of 
     the United States'' and was acting with the President's 
     ``knowledge and consent.'' \138\ President Trump placed Mr. 
     Giuliani at the hub of the pressure campaign on Ukraine, and 
     directed U.S. officials responsible for Ukraine to ``talk to 
     Rudy.'' \139\ Indeed, during their July 25 call, President 
     Trump pressed President Zelensky to speak with Mr. Giuliani 
     directly, stating: ``Rudy very much knows what's happening 
     and he is a very capable guy. If you could speak to him that 
     would be great.'' \140\
       Fourth, President Trump's pursuit of the sham 
     investigations marked a dramatic deviation from longstanding 
     bipartisan American foreign policy goals in Ukraine. 
     Legitimate investigations could have been recognized as an 
     anti-corruption foreign policy

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     goal, but there was no factual basis for an investigation 
     into the Bidens or into supposed Ukrainian interference in 
     the 2016 election.\141\ To the contrary, the requested 
     investigations were precisely the type of political 
     investigations that American foreign policy dissuades other 
     countries from undertaking. That explains why the scheme to 
     obtain the announcements was pursued through the President's 
     chosen political appointees and his personal attorney; \142\ 
     why Trump Administration officials attempted to keep the 
     scheme from becoming public due to its ``sensitive nature''; 
     \143\ why no credible explanation for the hold on security 
     assistance was provided even within the U.S. government; 
     \144\ why, over Defense Department objections, President 
     Trump and his allies violated the law by withholding the aid; 
     \145\ and why, after the scheme was uncovered, President 
     Trump falsely claimed that his pursuit of the investigations 
     did not involve a quid pro quo.\146\
       Fifth, American and Ukrainian officials alike saw President 
     Trump's scheme for what it was: improper and political. As we 
     expect the testimony of Ambassador John Bolton would confirm, 
     President Trump's National Security Advisor stated that he 
     wanted no ``part of whatever drug deal'' President Trump's 
     agents were pursuing in Ukraine.\147\ Dr. Hill testified that 
     Ambassador Sondland was becoming involved in a ``domestic 
     political errand'' in pressing Ukraine to announce the 
     investigations.\148\ Jennifer Williams, an advisor to Vice 
     President Mike Pence, testified that the President's 
     solicitation of investigations was a ``domestic political 
     matter.'' \149\ Lt. Col. Alexander Vindman, the NSC's 
     Director for Ukraine, testified that ``[i]t is improper for 
     the President of the United States to demand a foreign 
     government investigate a U.S. citizen and a political 
     opponent.'' \150\ William Taylor, who took over as Charge 
     d'Affaires in Kyiv after President Trump recalled Ambassador 
     Yovanovitch, emphasized that ``I think it's crazy to withhold 
     security assistance for help with a political campaign.'' 
     \151\ And George Kent, a State Department official, testified 
     that ``asking another country to investigate a prosecution 
     for political reasons undermines our advocacy of the rule of 
     law.'' \152\
       Ukrainian officials also understood that President Trump's 
     corrupt effort to solicit the sham investigations would drag 
     them into domestic U.S. politics. In response to the 
     President's efforts, a senior Ukrainian official conveyed to 
     Ambassador Taylor that President Zelensky ``did not want to 
     be used as a pawn in a U.S. reelection campaign.'' \153\ 
     Another Ukrainian official later stated that ``it's 
     critically important for the west not to pull us into some 
     conflicts between their ruling elites[.]'' \154\ And when 
     Ambassador Kurt Volker tried to warn President Zelensky's 
     advisor against investigating President Zelensky's former 
     political opponent--the prior Ukrainian president--the 
     advisor retorted, ``What, you mean like asking us to 
     investigate Clinton and Biden?'' \155\ David Holmes, a career 
     diplomat at the U.S. Embassy in Kyiv, highlighted this 
     hypocrisy: ``While we had advised our Ukrainian counterparts 
     to voice a commitment to following the rule of law and 
     generally investigating credible corruption allegations,'' 
     U.S. officials were making ``a demand that President Zelensky 
     personally commit on a cable news channel to a specific 
     investigation of President Trump's political rival.'' \156\
       Finally, there is no credible alternative explanation for 
     President Trump's conduct. It is not credible that President 
     Trump sought announcements of the investigations because he 
     was in fact concerned with corruption in Ukraine or burden-
     sharing with our European allies, as he claimed after the 
     scheme was uncovered.\157\
       Before news of former Vice President Biden's candidacy 
     broke, President Trump showed no interest in corruption in 
     Ukraine, and in prior years he approved military assistance 
     to Ukraine without controversy.\158\ After his candidacy was 
     announced, President Trump remained indifferent to anti-
     corruption measures beyond the two investigations he was 
     demanding.\159\ When he first spoke with President Zelensky 
     on April 21, President Trump ignored the recommendation of 
     his national security advisors and did not mention corruption 
     at all--even though the purpose of the call was to 
     congratulate President Zelensky on a victory based on an 
     anti-corruption platform.\160\ President Trump's entire 
     policy team agreed that President Zelensky was genuinely 
     committed to reforms, yet President Trump refused a White 
     House meeting that the team advised would support President 
     Zelensky's anti-corruption agenda.\161\ President Trump's own 
     Department of Defense, in consultation with the State 
     Department, had certified in May 2019 that Ukraine satisfied 
     all anti-corruption standards needed to receive the 
     Congressionally appropriated military aid, yet President 
     Trump nevertheless withheld that vital assistance.\162\ He 
     recalled without explanation Ambassador Yovanovitch, who was 
     widely recognized as a champion in fighting corruption,\163\ 
     disparaged her while praising a corrupt Ukrainian prosecutor 
     general,\164\ and oversaw efforts to cut foreign programs 
     tasked with combating corruption in Ukraine and 
     elsewhere.\165\
       Moreover, had President Trump truly sought to assist 
     Ukraine's anti-corruption efforts, he would have focused on 
     ensuring that Ukraine actually conducted investigations of 
     the purported issues he identified. But actual investigations 
     were never the point. President Trump was interested only in 
     the announcement of the investigations because that 
     announcement would accomplish his real goal--bolstering his 
     reelection efforts.\166\
       President Trump's purported concern about sharing the 
     burden of assistance to Ukraine with Europe is equally 
     without basis. From the time OMB announced the illegal hold 
     until it was lifted, no credible reason was provided to 
     Executive Branch agencies for the hold, despite repeated 
     efforts by national security officials to obtain an 
     explanation.\167\ It was not until September-- approximately 
     two months after President Trump had directed the hold and 
     after the President had learned of the whistleblower 
     complaint--that the hold, for the first time, was attributed 
     to the President's concern about other countries not 
     contributing more to Ukraine.\168\ If the President was 
     genuinely concerned about burden-sharing, it makes no sense 
     that he kept his own Administration in the dark about the 
     issue for months, never made any contemporaneous public 
     statements about it, never ordered a review of burden-
     sharing,\169\ never ordered his officials to push Europe to 
     increase their contributions,\170\ and then released the aid 
     without any change in Europe's contribution.\171\ The concern 
     about burden-sharing is an after-the-fact rationalization 
     designed to conceal President Trump's abuse of power.

         C. President Trump Jeopardized U.S. National Interests

       President Trump's efforts to solicit foreign interference 
     to help his reelection campaign is pernicious, but his 
     conduct is all the more alarming because it endangered U.S. 
     national security, jeopardized our alliances, and undermined 
     our efforts to promote the rule of law globally.
       Ukraine is a ``strategic partner of the United States'' on 
     the front lines of an ongoing conflict with Russia.\172\ The 
     United States has approved military assistance to Ukraine 
     with bipartisan support since 2014, and that assistance is 
     critical to preventing Russia's expansion and 
     aggression. This military assistance--which President 
     Trump withheld in service of his own political interests--
     ``saves lives'' by making Ukrainian resistance to Russia 
     more effective.\173\ It likewise advances American 
     national security interests because, ``[i]f Russia 
     prevails and Ukraine falls to Russian dominion, we can 
     expect to see other attempts by Russia to expand its 
     territory and influence.'' \174\ Indeed, the reason the 
     United States provides assistance to the Ukrainian 
     military is ``so that they can fight Russia over there, 
     and we don't have to fight Russia here.'' \175\ President 
     Trump's delay in providing the military assistance 
     jeopardized these national security interests and 
     emboldened Russia even though the funding was ultimately 
     released--particularly because the delay occurred ``when 
     Russia was watching closely to gauge the level of American 
     support for the Ukrainian Government.'' \176\ But for a 
     subsequent act of Congress, approximately $35 million of 
     military assistance to Ukraine would have lapsed and been 
     unavailable as a result of the President's abuse of 
     power.\177\
       The White House meeting that President Trump promised 
     President Zelensky--but continues to withhold--would 
     similarly have signaled to Russia that the United States 
     stands behind Ukraine, showing ``U.S. support at the highest 
     levels.'' \178\ By refusing to hold this meeting, President 
     Trump denied Ukraine a showing of strength that could deter 
     further Russian aggression and help Ukraine negotiate a 
     favorable end to its war with Russia.\179\ The withheld 
     meeting also undercuts President Zelensky's domestic 
     standing, diminishing his ability to advance his ambitious 
     anti-corruption reforms.\180\
       Equally troubling is that President Trump's scheme sent a 
     clear message to our allies that the United States may 
     capriciously withhold critical assistance for our President's 
     personal benefit, causing our allies to constantly ``question 
     the extent to which they can count on us.'' \181\ Because 
     American leadership depends on ``the power of our example and 
     the consistency of our purpose,'' President Trump's ``conduct 
     undermines the U.S., exposes our friends, and widens the 
     playing field for autocrats like President Putin.'' \182\ And 
     President Trump's use of official acts to pressure Ukraine to 
     announce politically motivated investigations harms our 
     credibility in promoting democratic values and the rule of 
     law in Ukraine and around the world. American credibility 
     abroad ``is based on a respect for the United States,'' and 
     ``if we damage that respect,'' American foreign policy cannot 
     do its job.\183\
       President Trump abused the powers of his office to invite 
     foreign interference in an election for his own personal 
     political gain and to the detriment of American national 
     security interests. He abandoned his oath to faithfully 
     execute the laws and betrayed his public trust. President 
     Trump's misconduct presents a danger to our democratic 
     processes, our national security, and our commitment to the 
     rule of law. He must be removed from office.
     II. The Senate Should Convict President Trump of Obstruction 
         of Congress
       In exercising its responsibility to investigate and 
     consider the impeachment of a President of the United States, 
     the House is constitutionally entitled to the relevant 
     information from the Executive Branch concerning the 
     President's misconduct.\184\ The Framers, the courts, and 
     past Presidents have recognized that honoring Congress's

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     right to information in an impeachment investigation is a 
     critical safeguard in our system of divided powers.\185\ 
     Otherwise, a President could hide his own wrongdoing to 
     prevent Congress from discovering impeachable misconduct, 
     effectively nullifying Congress's impeachment power.\186\ 
     President Trump's sweeping effort to shield his misconduct 
     from view and protect himself from impeachment thus works a 
     grave constitutional harm and is itself an impeachable 
     offense.

 A. The House Is Constitutionally Entitled to the Relevant Information 
                       in an Impeachment Inquiry

       The House has the power to issue subpoenas and demand 
     compliance in an impeachment investigation. The Supreme Court 
     has long recognized that, ``[w]ithout the power to 
     investigate--including of course the authority to compel 
     testimony, either through its own processes or through 
     judicial trial--Congress could be seriously handicapped in 
     its efforts to exercise its constitutional function wisely 
     and effectively.'' \187\ The Court has stressed that it is 
     the ``duty of all citizens'' and ``their unremitting 
     obligation to respond to subpoenas, to respect the dignity of 
     the Congress and its committees and to testify fully with 
     respect to matters within the province of proper 
     investigation.'' \188\ The Court has repeatedly emphasized 
     that Congress's ``power of inquiry--with process to enforce 
     it--is an essential and appropriate auxiliary to the 
     legislative function.'' \189\ Congress ``cannot legislate 
     wisely or effectively in the absence of information.'' \190\
       This principle is most compelling when the House exercises 
     its ``sole Power of Impeachment.'' Congress's already 
     ``broad'' investigatory authority,\191\ and its need for 
     information, are at their apex in an impeachment inquiry. The 
     principle that the President cannot stand in the way of an 
     impeachment investigation is ``of great consequence'' 
     because, as Supreme Court Justice Joseph Story long ago 
     explained, ``the president should not have the power of 
     preventing a thorough investigation of [his] conduct, or of 
     securing [himself] against the disgrace of a public 
     conviction by impeachment, if [he] should deserve it.'' \192\ 
     A Presidential impeachment is ``a matter of the most critical 
     moment to the Nation'' and it is ``difficult to conceive of a 
     more compelling need than that of this country for an 
     unswervingly fair inquiry based on all the pertinent 
     information.'' \193\ The Supreme Court thus recognized nearly 
     140 years ago that where the House or Senate is determining a 
     ``question of . . . impeachment,'' there is ``no reason to 
     doubt the right to compel the attendance of witnesses, and 
     their answer to proper questions, in the same manner and by 
     the use of the same means that courts of justice can in like 
     cases.'' \194\
       Like the Supreme Court, members of the earliest Congresses 
     understood that, without ``the right to inspect every paper 
     and transaction in any department . . . the power of 
     impeachment could never be exercised with any effect.'' \195\ 
     Previous Presidents have acknowledged their obligation to 
     comply with an impeachment investigation, explaining that 
     such an inquiry ``penetrate[s] into the most secret recesses 
     of the Executive Departments'' and ``could command the 
     attendance of any and every agent of the Government, and 
     compel them to produce all papers, public or private, 
     official or unofficial, and to testify on oath to all facts 
     within their knowledge.'' \196\ That acknowledgement is a 
     matter of common sense. An impeachment inquiry cannot root 
     out bad actors if those same bad actors control the scope and 
     nature of the inquiry.
       President Trump is an aberration among Presidents in 
     refusing any and all cooperation in a House impeachment 
     investigation. Even President Nixon produced numerous 
     documents in response to Congressional subpoenas and 
     instructed ``[a]ll members of the White House Staff . . . 
     [to] appear voluntarily when requested by the [House],'' to 
     ``testify under oath,'' and to ``answer fully all proper 
     questions'' \197\--consistent with the near uniform 
     cooperation of prior Executive Branch officials who had been 
     subject to impeachment investigations.\198\
       Because President Nixon's production of records in response 
     to the House Judiciary Committee's inquiry was incomplete in 
     important respects, however, the Committee voted to adopt an 
     article of impeachment for his obstruction of the 
     inquiry.\199\ As the Committee explained, in refusing to 
     provide materials that the Committee ``deemed necessary'' to 
     the impeachment investigation, President Nixon had 
     ``substitute[ed] his judgment'' for that of the House and 
     interposed ``the powers of the presidency against the lawful 
     subpoenas of the House of Representatives, thereby assuming 
     to himself functions and judgments necessary to exercise the 
     sole power of impeachment vested by the Constitution in the 
     House.'' \200\ The Committee stated that it was not ``within 
     the power of the President to conduct an inquiry into his own 
     impeachment, to determine which evidence, and what version or 
     portion of that evidence, is relevant and necessary to such 
     an inquiry. These are matters which, under the Constitution, 
     the House has the sole power to determine.'' \201\ In the 
     face of Congress's investigation and the mounting evidence of 
     his misdeeds, President Nixon resigned before the House had 
     the chance to impeach him for this misconduct.

 B. President Trump's Obstruction of the Impeachment Inquiry Violates 
                 Fundamental Constitutional Principles

       The Senate should convict President Trump of Obstruction of 
     Congress as charged in the Second Article of Impeachment. 
     President Trump unilaterally declared the House's 
     investigation ``illegitimate.'' \202\ President Trump's White 
     House Counsel notified the House that ``President Trump 
     cannot permit his Administration to participate in this 
     partisan inquiry under these circumstances.'' \203\ President 
     Trump then directed his Administration categorically to 
     withhold documents and testimony from the House.
       The facts are undisputed. As charged in the Second Article 
     of Impeachment, President Trump ``[d]irect[ed] the White 
     House to defy a lawful subpoena by withholding the production 
     of documents'' to the Committees; ``[d]irect[ed] other 
     Executive Branch agencies and offices to defy lawful 
     subpoenas and withhold the production of documents and 
     records from the Committees''; and ``[d]irected current and 
     former Executive Branch officials not to cooperate with the 
     Committees.'' \204\ In response to President Trump's 
     directives, OMB, the Department of State, Department of 
     Energy, and Department of Defense refused to produce any 
     documents to the House, even though witness testimony has 
     revealed that additional highly relevant records 
     exist.\205\ To date, the House Committees have not 
     received a single document or record from these 
     departments and agencies pursuant to subpoenas, which 
     remain in effect.
       President Trump personally demanded that his top aides 
     refuse to testify in response to subpoenas, and nine 
     Administration officials followed his directive and continue 
     to defy subpoenas for testimony.\206\ For example, when the 
     Intelligence Committee issued a subpoena for Mick Mulvaney's 
     testimony, he produced a November 8 letter from the White 
     House stating: ``the President directs Mr. Mulvaney not to 
     appear at the Committee's scheduled deposition on November 8, 
     2019.'' \207\ When President Trump was unable to silence 
     witnesses, he resorted to tactics to penalize and intimidate 
     them. These efforts include President Trump's sustained 
     attacks on the anonymous whistleblower, and his public 
     statements designed to discourage witnesses from coming 
     forward and to embarrass those who did testify.\208\
       Refusing to comply with a Congressional impeachment 
     investigation is not a constitutionally valid decision for a 
     President to make. President Trump's unprecedented ``complete 
     defiance of an impeachment inquiry . . . served to cover up 
     the President's own repeated misconduct and to seize and 
     control the power of impeachment.'' \209\ President Trump's 
     directive rejects one of the key features distinguishing our 
     Republic from a monarchy: that ``[t]he President of the 
     United States [is] liable to be impeached, tried, and, upon 
     conviction . . . removed.'' \210\ Allowing President Trump to 
     avoid conviction on the Second Article would set a dangerous 
     precedent for future Presidents to hide their misconduct from 
     Congressional scrutiny during an impeachment inquiry without 
     fear of accountability.
       Notwithstanding President Trump's obstruction, the House 
     obtained compelling evidence that he abused his power. The 
     failure of President Trump's obstruction and attempted cover-
     up, however, does not excuse his misconduct. There can be no 
     doubt that the withheld documents and testimony would provide 
     Congress with highly pertinent information about the 
     President's corrupt scheme. Indeed, witnesses have testified 
     about specific withheld records concerning President Trump's 
     July 25 call with President Zelensky and related 
     materials,\211\ and public reports have referred to 
     additional responsive documents, including ``hundreds of 
     documents that reveal extensive efforts to generate an after-
     the-fact justification for'' withholding the security 
     aid.\212\

     C. President Trump's Excuses for His Obstruction Are Meritless

       President Trump has offered various unpersuasive excuses 
     for his blanket refusal to comply with the House's 
     impeachment inquiry. President Trump's refusal to provide 
     information is not a principled assertion of executive 
     privilege, but rather is a transparent attempt to cover-up 
     wrongdoing and amass power that the Constitution does not 
     give him, including the power to decide whether and when 
     Congress can hold him accountable.
       First, while Congressional investigators often accommodate 
     legitimate Executive Branch interests, the President's 
     blanket directive to all Executive Branch agencies and 
     witnesses to defy Congressional subpoenas was not based on 
     any actual assertion of executive privilege or identification 
     of particular sensitive information.\213\ The White House 
     Counsel's letter alluded to ``long-established Executive 
     Branch confidentiality interests and privileges'' that the 
     State Department could theoretically invoke,\214\ and the 
     Justice Department's Office of Legal Counsel preemptively 
     dismissed certain subpoenas as ``invalid'' on the ground that 
     responsive information was ``potentially protected by 
     executive privilege.'' \215\ But neither document conveyed an 
     actual assertion of executive privilege,\216\ which would 
     require, at a minimum, identification by the President of 
     particular communications or documents containing protected 
     material.\217\ The White House cannot justify a blanket 
     refusal to respond to Congressional subpoenas based on an 
     executive or other privilege it never in fact invoked.
       Regardless, executive privilege is inapplicable here, both 
     because it may not be used

[[Page S297]]

     to conceal wrongdoing--particularly in an impeachment 
     inquiry--and because the President and his agents have 
     already diminished any confidentiality interests by speaking 
     at length about these events in every forum except 
     Congress.\218\ President Trump has been impeached for 
     Obstruction of Congress not based upon discrete invocations 
     of privilege or immunity, but for his directive that the 
     Executive Branch categorically stonewall the House 
     impeachment inquiry by refusing to comply with all 
     subpoenas.\219\
       To the extent President Trump claims that he has concealed 
     evidence to protect the Office of the President, the Framers 
     considered and rejected that defense. Several delegates at 
     the Constitutional Convention warned that the impeachment 
     power would be ``destructive of [the executive's] 
     independence.'' \220\ But the Framers adopted an impeachment 
     power anyway because, as Alexander Hamilton observed, ``the 
     powers relating to impeachments'' are ``an essential check in 
     the hands of [Congress] upon the encroachments of the 
     executive.'' \221\ The impeachment power does not exist to 
     protect the Presidency; it exists to protect the nation from 
     a corrupt and dangerous President like Donald Trump.
       Second, President Trump has no basis for objecting to how 
     the House conducted its impeachment proceedings. The 
     Constitution vests the House with the ``sole Power of 
     Impeachment'' \222\ and the power to ``determine the Rules of 
     its Proceedings.'' \223\
       The rights that President Trump has demanded have never 
     been recognized and have not been afforded in any prior 
     Presidential impeachment.\224\ President Trump has been 
     afforded protections equal to or greater than those afforded 
     Presidents Nixon and Clinton during their impeachment 
     proceedings in the House.\225\ Any claim that President Trump 
     was entitled to due process rights modeled on a criminal 
     trial during the entirety of the House impeachment inquiry 
     ignores both law and history. A House impeachment inquiry 
     cannot be compared to a criminal trial because the Senate, 
     not the House, possesses the ``sole Power to try 
     Impeachments.'' \226\ The Constitution does not entitle 
     President Trump to a separate, full trial first in the House.
       Even indulging the analogy to a criminal trial, no person 
     appearing before a prosecutor or grand jury deciding whether 
     to bring charges would have the rights President Trump has 
     claimed. As the House Judiciary Committee Chairman observed 
     during Watergate, ``it is not a right but a privilege or a 
     courtesy'' for the President to participate through counsel 
     in House impeachment proceedings.\227\ President Trump's 
     demands are just another effort to obstruct the House in the 
     exercise of its constitutional duty.
       Third, President Trump's assertion that his impeachment for 
     obstruction of Congress is invalid because the Committees did 
     not first seek judicial enforcement of their subpoenas 
     ignores again the Constitutional dictate that the House has 
     sole authority to determine how to proceed with an 
     impeachment. It also ignores President Trump's own arguments 
     to the federal courts.
       President Trump is telling one story to Congress while 
     spinning a different tale in the courts. He is saying to 
     Congress that the Committees should have sued the Executive 
     Branch in court to enforce their subpoenas. But he has argued 
     to that court that Congressional Committees cannot sue the 
     Executive Branch to enforce their subpoenas.\228\ President 
     Trump cannot tell Congress that it must pursue him in court, 
     while simultaneously telling the courts that they are 
     powerless to enforce Congressional subpoenas.
       President Trump's approach to the Judicial Branch thus 
     mirrors his obstruction of the Legislative Branch--in his 
     view, neither can engage in any review of his conduct. This 
     position conveys the President's dangerously misguided belief 
     that no other branch of government may check his power or 
     hold him accountable for abusing it.\229\ That belief is 
     fundamentally incompatible with our form of government.
       Months or years of litigation over each of the House's 
     subpoenas is in any event no answer in this time-sensitive 
     inquiry. The House's subpoena to former White House Counsel 
     Don McGahn was issued in April 2019, but it is still winding 
     its way through the courts over President Trump's strong 
     opposition, even on an expedited schedule.\230\ Litigating 
     President Trump's direction that each subpoena be denied 
     would conflict with the House's urgent duty to act on the 
     compelling evidence of impeachable misconduct that it has 
     uncovered. Further delay could also compromise the integrity 
     of the 2020 election.
       When the Framers entrusted the House with the sole power of 
     impeachment, they obviously meant to equip the House with the 
     necessary tools to discover abuses of power by the President. 
     Without that authority, the Impeachment Clause would fail as 
     an effective safeguard against tyranny. A system in which the 
     President cannot be charged with a crime, as the Department 
     of Justice believes, and in which he can nullify the 
     impeachment power through blanket obstruction, as President 
     Trump has done here, is a system in which the President is 
     above the law. The Senate should convict President Trump for 
     his categorical obstruction of the House's impeachment 
     inquiry and ensure that this President, and any future 
     President, cannot commit impeachable offenses and then avoid 
     accountability by covering them up.
     III. The Senate Should Immediately Remove President Trump 
         From Office to Prevent Further Abuses
       President Trump has demonstrated his continued willingness 
     to corrupt free and fair elections, betray our national 
     security, and subvert the constitutional separation of 
     powers--all for personal gain. President Trump's ongoing 
     pattern of misconduct demonstrates that he is an immediate 
     threat to the Nation and the rule of law. It is imperative 
     that the Senate convict and remove him from office now, and 
     permanently bar him from holding federal office.

A. President Trump's Repeated Abuse of Power Presents an Ongoing Threat 
                            to Our Elections

       President Trump's solicitation of Ukrainian interference in 
     the 2020 election is not an isolated incident. It is part of 
     his ongoing and deeply troubling course of misconduct that, 
     as the First Article of Impeachment states, is ``consistent 
     with President Trump's previous invitations of foreign 
     interference in United States elections.'' \231\
       These previous efforts include inviting Russian 
     interference in the 2016 Presidential election.\232\ As 
     Special Counsel Mueller concluded, the ``Russian government 
     interfered in the 2016 presidential election in sweeping and 
     systematic fashion.'' \233\ Throughout the 2016 election 
     cycle, the Trump Campaign maintained significant contacts 
     with agents of the Russian government who were offering 
     damaging information concerning then-candidate Trump's 
     political opponent, and Mr. Trump repeatedly praised--and 
     even publicly requested--the release of politically charged 
     Russian-hacked emails.\234\ The Trump Campaign welcomed 
     Russia's election interference because it ``expected it would 
     benefit electorally from information stolen and released 
     through Russian efforts.'' \235\
       President Trump's recent actions confirm that public 
     censure is insufficient to deter him from continuing to 
     facilitate foreign interference in U.S. elections. In June 
     2019, President Trump declared that he sees ``nothing wrong 
     with listening'' to a foreign power that offers information 
     detrimental to a political adversary. In the President's 
     words: ``I think I'd take it.'' \236\ Asked whether such 
     information should be reported to law enforcement, President 
     Trump retorted: ``Give me a break, life doesn't work that 
     way.'' \237\
       Only one day after Special Counsel Mueller testified to 
     Congress that the Trump Campaign welcomed and sought to 
     capitalize on Russia's efforts to damage the President's 
     political rival in 2016, President Trump spoke to President 
     Zelensky, pressuring Ukraine to announce investigations to 
     damage President Trump's political opponent in the 2020 
     election and undermine Special Counsel Mueller's 
     findings.\238\ President Trump still embraces that call as 
     both ``routine'' and ``perfect.'' \239\ President Trump's 
     conduct would have horrified the Framers of our republic.
       In its findings, the Intelligence Committee emphasized the 
     ``proximate threat of further presidential attempts to 
     solicit foreign interference in our next election.'' \240\ 
     That threat has not abated. In a sign that President Trump's 
     corrupt efforts to encourage interference in the 2020 
     election persist, he reiterated his desire for Ukraine to 
     investigate his political opponents even after the scheme was 
     discovered and the impeachment inquiry was announced. When 
     asked in October 2019 what he hoped President Zelensky would 
     do about ``the Bidens,'' President Trump answered that it was 
     ``very simple'' and he hoped Ukraine would ``start a major 
     investigation.'' \241\ Unsolicited, he added that ``China 
     should [likewise] start an investigation into the Bidens.'' 
     \242\
       President Trump has also continued to engage Mr. Giuliani 
     to pursue the sham investigations on his behalf.\243\ One day 
     after President Trump was impeached, Mr. Giuliani claimed 
     that he gathered derogatory evidence against Vice President 
     Biden during a fact-finding trip to Ukraine--a trip where he 
     met with a current Ukrainian official who attended a KGB 
     school in Moscow and has led calls in Ukraine to investigate 
     Burisma and the Bidens.\244\ During the trip, Mr. Giuliani 
     tweeted: ``The conversation about corruption in Ukraine was 
     based on compelling evidence of criminal conduct by then VP 
     Biden, in 2016, that has not been resolved and until it is 
     will be a major obstacle to the US assisting Ukraine with its 
     anti-corruption reforms.'' \245\ Not only was Mr. Giuliani 
     perpetuating the false allegations against the former Vice 
     President, but he was reiterating the threat that President 
     Trump had used to pressure President Zelensky to announce the 
     investigations: that U.S. assistance to Ukraine would be 
     withheld until Ukraine pursued the sham investigations. Mr. 
     Giuliani has stated that he and the President continue to be 
     ``on the same page.'' \246\ Ukraine, as well, understands 
     that Mr. Giuliani represents President Trump's 
     interests.\247\
       President Trump's unrepentant embrace of foreign election 
     interference illustrates the threat posed by his continued 
     occupancy of the Office of the President. It also refutes the 
     assertion that the consequences of his misconduct should be 
     decided by the voters in the 2020 election. The aim of 
     President Trump's Ukraine scheme was to corrupt the integrity 
     of the 2020 election by enlisting a foreign power to give him 
     an unfair advantage--in short, to cheat. That threat persists 
     today.

      B. President Trump's Obstruction of Congress Threatens Our 
                          Constitutional Order

       President Trump's obstruction of the House's impeachment 
     inquiry intended to

[[Page S298]]

     hold him accountable for his misconduct presents a serious 
     danger to our constitutional checks and balances.
       President Trump has made clear that he refuses to accept 
     Congress's express--and exclusive--constitutional role in 
     conducting impeachments.\248\ He has thereby subverted the 
     Constitution that he pledged to uphold when he was 
     inaugurated on the steps of the Capitol. By his words and 
     deeds, President Trump has obstructed the House's impeachment 
     inquiry at every turn: He has dismissed impeachment as 
     ``illegal, invalid, and unconstitutional''; \249\ directed 
     the Executive Branch not to comply with House subpoenas for 
     documents and testimony; \250\ and intimidated and threatened 
     the anonymous intelligence community whistleblower as well as 
     the patriotic public servants who honored their subpoenas and 
     testified before the House.\251\
       President Trump's obstruction is part of an ominous pattern 
     of efforts ``to undermine United States Government 
     investigations into foreign interference in United States 
     elections.'' \252\ Rather than assist Special Counsel 
     Mueller's investigation into Russian interference in the 2016 
     election and his own campaign's exploitation of that foreign 
     assistance, President Trump repeatedly used the powers of his 
     office to impede it. Among other actions, President Trump 
     directed the White House Counsel to fire the Special Counsel 
     and then create a false record of the firing, tampered with 
     witnesses in the Special Counsel's investigation, and 
     repeatedly and publicly attacked the legitimacy of the 
     investigation.\253\ President Trump has instructed the former 
     White House Counsel to defy a House Committee's subpoena for 
     testimony concerning these matters and the Department of 
     Justice has argued that the courts cannot even hear the 
     Committee's action to enforce its subpoena.\254\
       President Trump's current obstruction of Congress is, 
     therefore, not the first time he has committed misconduct 
     concerning a federal investigation into election interference 
     and then sought to hide it. Allowing this pattern to continue 
     without repercussion would send the clear message that 
     President Trump is correct in his view that no governmental 
     body can hold him accountable for wrongdoing. That view is 
     erroneous and exceptionally dangerous.

C. The Senate Should Convict and Remove President Trump to Protect Our 
          System of Government and National Security Interests

       The Senate should convict and remove President Trump to 
     avoid serious and long-term damage to our democratic values 
     and the Nation's security.
       If the Senate permits President Trump to remain in office, 
     he and future leaders would be emboldened to welcome, and 
     even enlist, foreign interference in elections for years to 
     come. When the American people's faith in their electoral 
     process is shaken and its results called into question, the 
     essence of democratic self-government is called into doubt.
       Failure to remove President Trump would signal that a 
     President's personal interests may take precedence over those 
     of the Nation, alarming our allies and emboldening our 
     adversaries. Our leadership depends on the power of our 
     example and the consistency of our purpose,'' but because of 
     President Trump's actions, ``[b]oth have now been opened to 
     question.'' \255\
       Ratifying President Trump's behavior would likewise erode 
     longstanding U.S. anti-corruption policy, which encourages 
     countries to refrain from using the criminal justice system 
     to investigate political opponents. As many witnesses 
     explained, urging Ukraine to engage in ``selective 
     politically associated investigations or prosecutions'' 
     undermines the power of America's example and our 
     longstanding efforts to promote the rule of law abroad.\256\
       An acquittal would also provide license to President Trump 
     and his successors to use taxpayer dollars for personal 
     political ends. Foreign aid is not the only vulnerable source 
     of funding; Presidents could also hold hostage federal funds 
     earmarked for States--such as money for natural disasters, 
     highways, and healthcare--unless and until State officials 
     perform personal political favors. Any Congressional 
     appropriation would be an opportunity for a President to 
     solicit a favor for his personal political purposes--or for 
     others to seek to curry favor with him. Such an outcome would 
     be entirely incompatible with our constitutional system of 
     self-government.
       President Trump has betrayed the American people and the 
     ideals on which the Nation was founded. Unless he is removed 
     from office, he will continue to endanger our national 
     security, jeopardize the integrity of our elections, and 
     undermine our core constitutional principles.
           Respectfully submitted,
     Adam B. Schiff,
     Jerrold Nadler,
     Zoe Lofgren,
     Hakeem S. Jeffries,
     Val Butler Demings,
     Jason Crow,
     Sylvia R. Garcia.
       U.S. House of Representatives Managers
       January 18, 2020
       The House Managers wish to acknowledge the assistance of 
     the following individuals in preparing this trial memorandum: 
     Douglas N. Letter, Megan Barbero, Josephine Morse, Adam A. 
     Grogg, William E. Havemann, and Jonathan B. Schwartz of the 
     House Office of General Counsel; Daniel Noble, Daniel S. 
     Goldman, and Maher Bitar of the House Permanent Select 
     Committee on Intelligence; Norman L. Eisen, Barry H. Berke, 
     Joshua Matz, and Sophia Brill of the House Committee on the 
     Judiciary; the investigative staff of the House Committee on 
     Oversight and Reform; and David A. O'Neil, Anna A. Moody, and 
     Laura E. O'Neill.
                                  ____



                                ENDNOTES

       1. H. Res. 755, 116th Cong. (2019).
       2. See Statement of Material Facts (Statement of Facts) 
     (Jan. 18, 2020), para.para. 1-151 (filed as an attachment to 
     this Trial Memorandum).
       3. Id. para.para. 75-76.
       4. Id. para.para. 76-77.
       5. Id. para.para. 11-12.
       6. Id. para.para. 11, 76.
       7. Id. para. 12.
       8. Id. para. 13.
       9. Id. para. 14.
       10. See, e.g., id. para. 53.
       11. See, e.g., id. para.para. 16, 18.
       12. Id. para. 59.
       13. Id. para.para. 120-21.
       14. Id. para. 122.
       15. Id. para. 88.
       16. See, e.g., id. para. 24.
       17. See, e.g., id. para.para. 19, 25, 145-47.
       18. Id. para.para. 28-48.
       19. Id. para.para. 30-31.
       20. Id. para. 46.
       21. Id. para.para. 43, 46-48.
       22. See, e.g., id. para.para. 127, 131.
       23. See id. para.para. 49-69.
       24. Id. para. 50.
       25. Id. para.para. 3-4, 50.
       26. See id. para. 137.
       27. Letter from John Adams to Thomas Jefferson (Dec. 6, 
     1787) (Adams-Jefferson Letter), https://perma.cc/QWD8-222B.
       28. See Impeachment of Donald J. Trump, President of the 
     United States: Report of the Comm. on the Judiciary of the H. 
     of Representatives, together with Dissenting Views, to 
     Accompany H. Res. 755, H. Rep. No. 116-346 (2019); Report of 
     the H. Permanent Select Comm. on Intelligence on the Trump-
     Ukraine Impeachment Inquiry, together with Minority Views, H. 
     Rep. No. 116-335 (2019); see also Majority Staff of the H. 
     Comm. on the Judiciary, 116th Cong., Constitutional Grounds 
     for Presidential Impeachment (Comm. Print 2019).
       29. H. Res. 755, at 2-5.
       30. U.S. Const., Art. I, Sec. 2, cl. 5.
       31. See Statement of Facts para.para. 164-69.
       32. Id. para.para. 179-83.
       33. See, e.g., id. para.para. 186-87.
       34. See id. para.para. 191-93.
       35. Id. para.para. 187-90.
       36. See id. para. 178; H. Res. 755, at 5-8.
       37. U.S. Const., Art. II, Sec. 4.
       38. U.S. Const., Art. I, Sec. 2, cl. 5.
       39. U.S. Const., Art. I, Sec. 3, cl. 6.
       40. U.S. Const., Art. II, Sec. 4.
       41. U.S. Const., Art. I, Sec. 3, cl. 6.
       42. U.S. Const., Art. II, Sec. 1, cl. 8.
       43. 2 The Records of the Federal Convention of 1787, at 392 
     (Max Farrand ed., 1911) (Farrand).
       44. Background and History of Impeachment: Hearing Before 
     the Subcomm. on the Constitution of the H. Comm. on the 
     Judiciary, 105th Cong. 49 (1998) (quoting James Iredell).
       45. 2 Farrand at 67.
       46. See id. at 65.
       47. Id. at 64.
       48. Id. at 65.
       49. Id. at 64.
       50. See The Federalist No. 65 (Alexander Hamilton).
       51. See, e.g., 2 Farrand at 65-66; George Washington, 
     Farewell Address (Sept. 19, 1796), George Washington Papers, 
     Series 2, Letterbooks 1754-1799: Letterbook 24, April 3, 
     1793-March 3, 1797, Library of Congress (Washington Farewell 
     Address); Adams-Jefferson Letter, https://perma.cc/QWD8-222B.
       52. Washington Farewell Address.
       53. The Federalist No. 68 (Alexander Hamilton).
       54. 2 Farrand at 66.
       55. Adams-Jefferson Letter, https://perma.cc/QWD8-222B.
       56. U.S. Const., Art. II, Sec. 1, cl. 5.
       57. U.S. Const., Art. I, Sec. 9, cl. 8.
       58. U.S. Const., Art. II, Sec. 1, cl. 7.
       59. U.S. Const., Art. II, Sec. 1, cl. 1.
       60. U.S. Const., Art. II, Sec. 4; see 2 Farrand at 550.
       61. 2 Farrand at 550.
       62. The Federalist No. 65 (Alexander Hamilton) 
     (capitalization altered).
       63. These issues are discussed at length in the report by 
     the House Committee on the Judiciary. See H. Rep. No. 116-
     346, at 28-75.
       64. Statement of Facts para. 160.
       65. Id. para. 161.
       66. See id. para.para. 166, 180, 183, 189-90.
       67. Id. para. 162.
       68. Id. para. 164.
       69. Id. para.para. 164-69.
       70. Id. para. 183.
       71. Id. para. 187.
       72. Id. para.para. 188-89.
       73. Id. para. 189.
       74. Id. para. 176; see also H. Rep. No. 116-335.
       75. Statement of Facts para. 176; see also H. Res. 755.
       76. Statement of Facts para. 178; H. Res. 755.
       77. H. Res. 755, at 2-3.
       78. Id.
       79. Id. at 3.
       80. Id.
       81. Id. at 4.
       82. Id. at 5.
       83. Id. at 6.
       84. Id.
       85. Id. at 8.

[[Page S299]]

  

       86. Id. at 7.
       87. Id. at 5, 8.
       88. See Statement of Facts para.para. 1-157.
       89. See id. para.para. 1-157.
       90. See, e.g., Report of the Impeachment Trial Comm. on the 
     Articles Against Judge G. Thomas Porteous, Jr., S. Rep. No. 
     111-347, at 6-7 (2010); Impeachment of Judge Alcee L. 
     Hastings: Report of the H. Comm. of the Judiciary to 
     Accompany H. Res. 499, H. Rep. No. 100-810, at 1-5, 8, 41 
     (1988); 132 Cong. Rec. H4710-22 (daily ed. July 22, 1986) 
     (impeachment of Judge Claiborne).
       91. For a more detailed discussion of abuse of power as an 
     impeachable offense, see H. Rep. No. 116-346, at 43-48, 68-
     70, 78-81.
       92. Statement of Facts para.para. 1-151.
       93. Id. para.para. 11-12.
       94. See id. para. 12.
       95. Id.
       96. Id. para.para. 11, 17.
       97. Id. para. 12.
       98. Id.
       99. Id.
       100. Id.; see also id. para.para. 83-84, 150.
       101. Id. para.para. 11, 84.
       102. Id. para.para. 12-14.
       103. Id. para. 14.
       104. Id. para. 13.
       105. Id.
       106. See id. para.para. 11-13, 83-84.
       107. Id. para. 6.
       108. Id. para.para. 7-9.
       109. Id. para. 10 (quoting Mr. Giuliani).
       110. Id. para.para. 28-48.
       111. Id. para. 35.
       112. See id. para.para. 30-31, 34-35.
       113. Id. para. 39.
       114. Id. para.para. 39, 41-42.
       115. Id. para. 46. The GAO opinion addresses only the 
     portion of the funds appropriated to the Department of 
     Defense. The opinion explains that OMB and the State 
     Department have not provided the information GAO needs to 
     evaluate the legality of the hold placed by the President on 
     the remaining funds.
       116. Id. para. 76.
       117. Id. para.para. 76, 80.
       118. Id. para. 82.
       119. Id. para. 77.
       120. Id. para. 101.
       121. Id. para. 110.
       122. Id. para. 114.
       123. Id. para.para. 103, 130-31.
       124. Id. para. 3.
       125. See, e.g., id. para. 4.
       126. Id. para. 88.
       127. Id. para. 52.
       128. Id. para. 137.
       129. Id. para.para. 141-42, 150.
       130. See generally Statement of Facts; H. Rep. No. 116-346; 
     H. Rep. No. 116-335.
       131. Statement of Facts para.para. 11-15.
       132. Id. para.para. 16-19.
       133. See id. para.para. 154-56 (then-candidate Trump's 
     actions relating to the FBI's investigation into Hillary 
     Clinton).
       134. Id. para. 88.
       135. Id. para. 121. Mr. Mulvaney, along with his deputy 
     Robert Blair and OMB official Michael Duffey--who were 
     subpoenaed by the House, but refused to testify at the 
     President's direction, see id. 187--would provide additional 
     firsthand testimony regarding the President's withholding of 
     official acts in exchange for Ukraine's assistance with his 
     reelection.
       136. Id. para. 18.
       137. Id.
       138. Id. para. 19 (emphasis added).
       139. Id. para. 24.
       140. Id. 78.
       141. Id. para.para. 11-15. 122.
       142. Id.
       143. Id. para. 42.
       144. Id. para.para. 43-48.
       145. Id. para.para. 45-46.
       146. Id. para. 140.
       147. Id. para. 59. Although Bolton has not cooperated with 
     the House's inquiry, he has offered to testify to the Senate 
     if subpoenaed.
       148. Id. para. 58.
       149. Id. para. 84.
       150. Id. para. 83.
       151. Id. para. 118.
       152. Id. para. 55 (recalling his statement to Ambassador 
     Volker in July 2019).
       153. Id. para. 68.
       154. Id. para. 104.
       155. Id. para. 150.
       156. Id. para. 151.
       157. Id. para. 143.
       158. See id. para.para. 2, 33.
       159. See id. para. 88.
       160. See id. para.para. 1-2.
       161. See id. para.para. 22-24.
       162. See id. para.para. 36 n.73, 39.
       163. See id. para. 7.
       164. See id. para.para. 8-9, 81.
       165. See id. para. 82 n.138.
       166. See e.g., id. para.para. 82, 131.
       167. See id. para.para. 41-48.
       168. See id. para.para. 43-45.
       169. See id. para. 44.
       170. See id.
       171. See id. para. 131.
       172. Id. para. 28.
       173. Id. para. 31.
       174. Id.
       175. Id.
       176. Id. para. 4.
       177. Id. para.para. 132-33.
       178. Id. para. 4 & n.8.
       179. See id. para. 50.
       180. See id.
       181. Transcript, Impeachment Inquiry: Fiona Hill and David 
     Holmes: Hearing Before the H. Permanent Select Comm. on 
     Intelligence, 116th Cong. 175 (Nov. 21, 2019).
       182. Transcript, Impeachment Inquiry: Ambassador Marie 
     ``Masha'' Yovanovitch: Hearing Before the H. Permanent Select 
     Comm. on Intelligence, 116th Cong. 19 (Nov. 15, 2019) 
     (Yovanovitch Hearing Tr.).
       183. Transcript, Impeachment Inquiry: Ambassador William B. 
     Taylor and George Kent: Hearing Before the H. Permanent 
     Select Comm. on Intelligence, 116th Cong. 165 (Nov. 13, 
     2019).
       184. 4 Annals of Cong. 601 (1796) (statement of Rep. 
     William Lyman) (noting that Congress has ``the right to 
     inspect every paper and transaction in any department'' 
     during an impeachment inquiry).
       185. See, e.g., The Federalist No. 65 (Alexander Hamilton) 
     (referring to the House as the ``inquisitors for the nation'' 
     for purposes of impeachment); Kilbourn v. Thompson, 103 U.S. 
     168, 193 (1880); 4 James D. Richardson ed., Messages and 
     Papers of Presidents 434-35 (1896); see also H. Rep. No. 116-
     346, at 139-42 (collecting examples of past Presidents 
     beginning with George Washington acknowledging the importance 
     of Congress's right to information from the Executive Branch 
     in impeachment inquiries).
       186. See generally H. Rep. No. 116-346, at 139-48.
       187. Quinn v. United States, 349 U.S. 155, 160-61 (1955).
       188. Watkins v. United States, 354 U.S. 178, 187-88 (1957).
       189. McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
       190. Id. at 175.
       191. Watkins, 354 U.S. at 187.
       192. 2 Joseph Story, Commentaries on the Constitution of 
     the United States Sec.  1501 (2d ed. 1851).
       193. In re Report & Recommendation of June 5, 1972 Grand 
     Jury Concerning Transmission of Evidence to House of 
     Representatives, 370 F. Supp. 1219, 1230 (D.D.C. 1974).
       194. Kilbourn, 103 U.S. at 190. The Court in Kilbourn 
     invalidated a contempt order by the House but explained that 
     the ``whole aspect of the case would have changed'' if it had 
     been an impeachment proceeding. Id. at 193.
       195. 4 Annals of Cong. 601 (statement of Rep. William 
     Lyman).
       196. Cong. Globe, 29th Cong., 1st Sess. 698 (1846) 
     (statement of President James K. Polk); see also H. Rep. No. 
     116-346, at 139-42.
       197. Remarks by President Nixon (Apr. 17, 1973), reprinted 
     in Statement of Information: Hearings Before the Comm. on the 
     Judiciary, H. of Representatives: Book IV--Part 2, Events 
     Following the Watergate Break-in (1974).
       198. H. Rep. No. 116-346, at 142; see Impeachment of 
     Richard M. Nixon, President of the United States: Report of 
     the Comm. on the Judiciary, H. of Representatives, H. Rep. 
     No. 93-1305, at 196 (1974).
       199. See H. Rep. No. 93-1305, at 10.
       200. Id. at 4.
       201. Id. at 194.
       202. See Statement of Facts para. 177.
       203. See id. para. 169.
       204. H. Res. 755, at 7; see Statement of Facts para. 169.
       205. Statement of Facts para.para. 179-83.
       206. Id. para.para. 186-87.
       207. Id. para. 186.
       208. Id. para. 190 & nn.309-10.
       209. H. Res. 755, at 8.
       210. The Federalist No. 69 (Alexander Hamilton).
       211. See Statement of Facts para. 184 & nn.296-97.
       212. Id. para. 45. As noted above, the testimony of Messrs. 
     Mulvaney, Blair, and Duffey would shed additional light on 
     the White House's efforts to create an after-the-fact 
     justification for the President's withholding of security 
     assistance. Ambassador Bolton's testimony would likewise be 
     illuminating in this regard given public reporting of his 
     repeated, yet unsuccessful, efforts to convince the President 
     to lift the hold.
       213. See id. para. 172.
       214. Id.
       215. Id.
       216. Id.
       217. See, e.g., Landry v. Fed. Deposit Ins. Corp., 204 F.3d 
     1125, 1135 (D.C. Cir. 2000).
       218. See, e.g., In re Sealed Case, 121 F.3d 729, 738 (D.C. 
     Cir. 1997); Statement of Facts para. 173 & n.280.
       219. See H. Res. 755, at 7.
       220. 2 Farrand at 67.
       221. The Federalist No. 66 (Alexander Hamilton).
       222. U.S. Const., Art. I, Sec. 2, cl. 5.
       223. U.S. Const., Art. I, Sec. 5, cl. 2.
       224. See, e.g., Statement of Facts para. 163; see also U.S. 
     Const., Art. I, Sec. 2, cl. 5.
       225. Statement of Facts para. 163; 165 Cong. Rec. E1357 
     (2019) (Impeachment Inquiry Procedures in the Committee on 
     the Judiciary Pursuant to H. Res. 660); Investigatory Powers 
     of the Comm. on the Judiciary with Respect to its Impeachment 
     Inquiry, H. Rep. No. 105-795 (1998); H. Rep. No. 93-1305, at 
     8.
       226. U.S. Const., Art. I, Sec. 3, cl. 6.
       227. Impeachment Inquiry: Hearings Before the H. Comm. on 
     the Judiciary, Book I, 93d Cong. 497 (1974) (statement of 
     Chairman Peter W. Rodino, Jr.).
       228. See Statement of Facts para. 192; Def.'s Mot. to 
     Dismiss, or in the Alternative, for Summ. J. at 20, Kupperman 
     v. U.S. House of Representatives, No. 19-3224 (D.D.C. Nov. 
     14, 2019), ECF No. 40; Defs.' and Def.-Intervenors' Mot. to 
     Dismiss at 46-47, Comm. on Ways & Means v. U.S. Dep't of the 
     Treasury, No. 19-1974 (D.D.C. Sept. 6, 2019), ECF No. 44; see 
     also Brief for Def.-Appellant at 2, 3233, Comm. on the 
     Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Dec. 9, 2019).
       229. See also Statement of Facts para. 164 (``I have an 
     Article II, where I have the right to do whatever I want as 
     president.'').
       230. See id. para. 192 & n.316.
       231. H. Res. 755, at 5.
       232. Statement of Facts para.para. 191-93.
       233. Id. para. 13.

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       234. Id. para.para. 152-56.
       235. Id. para. 152.
       236. Id para. 156.
       237. Id.
       238. Id. para.para. 76, 157.
       239. Id. para. 77 n.132.
       240. H. Rep. No. 116-335, at XI.
       241. Statement of Facts para. 142.
       242. Id.
       243. See id. para.para. 144-49.
       244. Id.
       245. Id. para. 146.
       246. Id. para. 149.
       247. Id. para.para. 19, 69, 89.
       248. See, e.g., id. para.para. 169-71; U.S. Const., Art. I, 
     Sec. 2, cl. 5; U.S. Const., Art. I, Sec. 3, cl. 6.
       249. Statement of Facts para. 177.
       250. Id. para. 169.
       251. Id. para. 177.
       252. H. Res. 755, at 7-8.
       253. See Statement of Facts para. 193.
       254. Id. para. 192 & n.316.
       255. Yovanovitch Hearing Tr. at 19.
       256. Statement of Facts para.122.

 [In the Senate of the United States Sitting as a Court of Impeachment]

             In re Impeachment of President Donald J. Trump

Statement of Material Facts--Attachment to the Trial Memorandum of the 
  United States House of Representatives in the Impeachment Trial of 
                       President Donald J. Trump


                              INTRODUCTION

       The U.S. House of Representatives has adopted Articles of 
     Impeachment charging President Donald J. Trump with abuse of 
     office and obstruction of Congress. The House's Trial 
     Memorandum explains why the Senate should convict and remove 
     President Trump from office, and permanently bar him from 
     government service. The Memorandum relies on this Statement 
     of Material Facts, which summarizes key evidence relating to 
     the President's misconduct.
       As further described below, and as detailed in House 
     Committee reports,\1\ President Trump used the powers of his 
     office and U.S. taxpayers' money to pressure a foreign 
     country, Ukraine, to interfere in the 2020 U.S. Presidential 
     election on his behalf. President Trump's goals--which became 
     known to multiple U.S. officials who testified before the 
     House--were simple and starkly political: he wanted Ukraine's 
     new President to announce investigations that would assist 
     his 2020 reelection campaign and tarnish a political 
     opponent, former Vice President Joseph Biden, Jr. As 
     leverage, President Trump illegally withheld from Ukraine 
     nearly $400 million in vital military and other security 
     assistance that had been appropriated by Congress, and an 
     official White House meeting that President Trump had 
     promised Volodymyr Zelensky, the newly elected President of 
     Ukraine. President Trump did this despite U.S. national 
     security officials' unanimous opposition to withholding the 
     aid from Ukraine, placing his own personal and political 
     interests above the national security interests of the United 
     States and undermining the integrity of our democracy.
       When this scheme became known and Committees of the House 
     launched an investigation, the President, for the first time 
     in American history, ordered the categorical obstruction of 
     an impeachment inquiry. President Trump directed that no 
     witnesses should testify and no documents should be produced 
     to the House, a co-equal branch of government endowed by the 
     Constitution with the ``sole Power of Impeachment.'' \2\ 
     President Trump's conduct--both in soliciting a foreign 
     country's interference in a U.S. election and then 
     obstructing the ensuing investigation into that 
     interference--was consistent with his prior conduct during 
     and after the 2016 election.


                      STATEMENT OF MATERIAL FACTS

     I. President Trump's Abuse of Power

 A. The President's Scheme To Solicit Foreign Interference in the 2020 
    Election From the New Ukrainian Government Began in Spring 2019

       1. On April 21, 2019, Volodymyr Zelensky, a political 
     neophyte, won a landslide victory in Ukraine's Presidential 
     election.\3\ Zelensky campaigned on an anti-corruption 
     platform, and his victory reaffirmed the Ukrainian people's 
     strong desire for reform.\4\
       2. When President Trump called to congratulate Zelensky 
     later that day, President Trump did not raise any concerns 
     about corruption in Ukraine, although his staff had prepared 
     written materials for him recommending that he do so, and the 
     White House call readout incorrectly indicated he did.\5\
       3. During the call, President Trump promised President-
     elect Zelensky that a high-level U.S. delegation would attend 
     his inauguration and told him, ``When you're settled in and 
     ready, I'd like to invite you to the White House.'' \6\
       4. Both events would have demonstrated strong support by 
     the United States as Ukraine fought a war--and negotiated for 
     peace--with Russia. ``Russia was watching closely to gauge 
     the level of American support for the Ukrainian Government.'' 
     \7\ A White House visit also would have bolstered Zelensky's 
     standing at home as he pursued his anti-corruption agenda.\8\
       5. Following the April 21 call, President Trump asked Vice 
     President Mike Pence to lead the American delegation to 
     President Zelensky's inauguration. During his own call with 
     President-elect Zelensky on April 23, Vice President Pence 
     confirmed that he would attend the inauguration ``if the 
     dates worked out.'' \9\
       6. On April 23, the media reported that former Vice 
     President Biden was going to enter the 2020 race for the 
     Democratic nomination for President of the United States.\10\
       7. The next day, April 24, the State Department executed 
     President Trump's order to recall the U.S. ambassador to 
     Ukraine, Marie ``Masha'' Yovanovitch, who was a well-regarded 
     career diplomat and champion for anti-corruption reforms in 
     Ukraine.\11\
       8. The removal of Ambassador Yovanovitch was the 
     culmination of a months-long smear campaign waged by the 
     President's personal lawyer, Rudy Giuliani, and other allies 
     of the President.\12\ The President also helped amplify the 
     smear campaign.\13\
       9. Upon her return to the United States, Ambassador 
     Yovanovitch was informed by State Department officials that 
     there was no substantive reason or cause for her removal, but 
     that President Trump had simply ``lost confidence'' in 
     her.\14\
       10. Mr. Giuliani later disclosed the true motive for 
     Ambassador Yovanovitch's removal: Mr. Giuliani ``believed 
     that [he] needed Yovanovitch out of the way'' because ``[s]he 
     was going to make the investigations difficult for 
     everybody.'' \15\
       11. Mr. Giuliani was referring to the two politically 
     motivated investigations that President Trump solicited from 
     Ukraine in order to assist his 2020 reelection campaign: one 
     into former Vice President Biden and a Ukrainian gas company, 
     Burisma Holdings, on whose board Biden's son sat; \16\ the 
     other into a discredited conspiracy theory that Ukraine, not 
     Russia, had interfered in the 2016 U.S. election to help 
     Hillary Clinton's campaign. One element of the latter 
     conspiracy theory was that CrowdStrike--a NASDAQ-listed 
     cybersecurity firm based in Sunnyvale, California, that the 
     President erroneously believed was owned by a Ukrainian 
     oligarch--had colluded with the Democratic National Committee 
     (DNC) to frame Russia and help the election campaign of 
     Hillary Clinton.\17\
       12. There was no factual basis for either investigation. As 
     to the first, witnesses unanimously testified that there was 
     no credible evidence to support the allegations that, in late 
     2015, Vice President Biden corruptly encouraged Ukraine to 
     remove then-Prosecutor General Viktor Shokin because he was 
     investigating Burisma.\18\ Rather, Vice President Biden was 
     carrying out official U.S. policy--with bipartisan support 
     \19\--and promoting anti-corruption reforms in Ukraine 
     because Shokin was viewed by the United States, its European 
     partners, and the International Monetary Fund to be 
     ineffectual at prosecuting corruption and was himself 
     corrupt.\20\ In fact, witnesses unanimously testified that 
     the removal of Shokin made it more likely that Ukraine would 
     investigate corruption, including Burisma and its owner, not 
     less likely.\21\ The Ukrainian Parliament removed Shokin in 
     March 2016.\22\
       13. As to the second investigation, the U.S. Intelligence 
     Community determined that Russia--not Ukraine--interfered in 
     the 2016 election.\23\ The Senate Select Committee on 
     Intelligence reached the same conclusion following its own 
     lengthy bipartisan investigation.\24\ Special Counsel Robert 
     Mueller, III, likewise concluded that the ``Russian 
     government interfered in the 2016 presidential election in 
     sweeping and systematic fashion.'' \25\ And FBI Director 
     Christopher Wray, a Trump appointee, recently confirmed that 
     law enforcement ``ha[s] no information that indicates that 
     Ukraine interfered with the 2016 presidential election.'' 
     \26\
       14. As Dr. Fiona Hill--who served until July 2019 as the 
     Senior Director of European and Russian Affairs at the 
     National Security Council (NSC) under President Trump until 
     July 2019--testified, the theory of Ukrainian interference in 
     the 2016 election is a ``fictional narrative that is being 
     perpetrated and propagated by the Russian security services 
     themselves'' to deflect from Russia's own culpability and to 
     drive a wedge between the United States and Ukraine.\27\ In 
     fact, shortly after the 2016 U.S. election, this conspiracy 
     theory was promoted by none other than President Vladimir 
     Putin himself.\28\ On May 3, 2019, shortly after President 
     Zelensky's election, President Trump and President Putin 
     spoke by telephone, including about the so-called ``Russian 
     Hoax.'' \29\
       15. President Trump's senior advisors had attempted to 
     dissuade the President from promoting this conspiracy theory, 
     to no avail. Dr. Hill testified that President Trump's former 
     Homeland Security Advisor Tom Bossert and former National 
     Security Advisor H.R. McMaster ``spent a lot of time trying 
     to refute this [theory] in the first year of the 
     administration.'' \30\ Bossert later said the false narrative 
     about Ukrainian interference in the 2016 election was ``not 
     only a conspiracy theory, it is completely debunked.'' \31\

 B. The President Enlisted His Personal Attorney and U.S. Officials To 
            Help Execute the Scheme for His Personal Benefit

       16. Shortly after his April 21 call with President 
     Zelensky, President Trump began to publicly press for the two 
     investigations he wanted Ukraine to pursue. On April 25--the 
     day that former Vice President Biden announced his candidacy 
     for the Democratic nomination for President--President Trump 
     called into Sean Hannity's prime time Fox News show. 
     Referencing alleged Ukrainian interference in the 2016 
     election, President Trump said, ``It sounds like big stuff,'' 
     and suggested that the Attorney General might 
     investigate.\32\

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       17. On May 6, in a separate Fox News interview, President 
     Trump claimed Vice President Biden's advocacy for Mr. 
     Shokin's dismissal in 2016 was ``a very serious problem'' and 
     ``a major scandal, major problem.'' \33\
       18. On May 9, the New York Times reported that Mr. Giuliani 
     was planning to travel to Ukraine to urge President Zelensky 
     to pursue the investigations.\34\ Mr. Giuliani acknowledged 
     that ``[s]omebody could say it's improper'' to pressure 
     Ukraine to open investigations that would benefit President 
     Trump, but he argued:
       [T]his isn't foreign policy--I'm asking them to do an 
     investigation that they're doing already, and that other 
     people are telling them to stop. And I'm going to give them 
     reasons why they shouldn't stop it because that information 
     will be very, very helpful to my client, and may turn out to 
     be helpful to my government.\35\
       Ukraine was not, in fact, ``already'' conducting these 
     investigations. As described below, the Trump Administration 
     repeatedly tried but failed to get Ukrainian officials to 
     instigate these investigations. According to Mr. Giuliani, 
     the President supported his actions, stating that President 
     Trump ``basically knows what I'm doing, sure, as his 
     lawyer.'' \36\
       19. IN a letter dated May 10, 2019, and addressed to 
     President-elect Zelensky, Mr. Giuliani wrote that he 
     ``represent[ed] him [President Trump] as a private citizen, 
     not as President of the United States.'' In his capacity as 
     ``personal counsel to President Trump, and with his knowledge 
     and consent,'' Mr. Giuliani requested a meeting with 
     President Zelensky the following week to discuss a ``specific 
     request.'' \37\
       20. On the evening of Friday, May 10, however, Mr. Giuliani 
     announced that he was canceling his trip.\38\ He later 
     explained, ``I'm not going to go'' to Ukraine ``because I'm 
     walking into a group of people that are enemies of the 
     President.'' \39\
       21. By the following Monday morning, May 13, President 
     Trump had ordered Vice President Pence not to attend 
     President Zelensky's inauguration in favor of a lower-ranking 
     delegation led by Secretary of Energy Rick Perry.\40\
       22. The U.S. delegation--which also included Ambassador to 
     the European Union Gordon Sondland, Special Representative 
     for Ukraine Negotiations Ambassador Kurt Volker, and NSC 
     Director for Ukraine Lieutenant Colonel Alexander Vindman--
     returned from the inauguration convinced that President 
     Zelensky was genuinely committed to anti-corruption 
     reforms.\41\
       23. At a meeting in the Oval Office on May 23, members of 
     the delegation relayed their positive impressions to 
     President Trump and encouraged him to schedule the promised 
     Oval Office meeting for President Zelensky. President Trump, 
     however, said he ``didn't believe'' the delegation's positive 
     assessment, claiming ``that's not what I hear'' from Mr. 
     Giuliani.\42\ The President cast his dim view of Ukraine in 
     personal terms, stating that Ukraine ``tried to take me 
     down'' during the 2016 election--an apparent reference to the 
     debunked conspiracy theory that Ukraine interfered in the 
     2016 election to help Hillary Clinton and harm his 
     campaign.\43\
       24. Rather than commit to a date for an Oval Office meeting 
     with President Zelensky, President Trump directed the 
     delegation to ``[t]alk to Rudy, talk to Rudy.'' \44\ 
     Ambassador Sondland testified that ``if [the delegation] 
     never called Rudy and just left it alone nothing would happen 
     with Ukraine,'' and ``if [the President] was going to have 
     his mind changed, that was the path.'' \45\ Following the May 
     23 meeting, Secretary Perry and Ambassadors Sondland and 
     Volker began to coordinate and work with Mr. Giuliani to 
     satisfy the President's demands.\46\
       25. Mr. Giuliani is not a U.S. government official and has 
     never served in the Trump Administration. Rather, as he has 
     repeatedly made clear, his goal was to obtain ``information 
     [that] will be very, very helpful to my client''--President 
     Trump.\47\ Mr. Giuliani made clear to Ambassadors Sondland 
     and Volker, who were in direct communications with Ukrainian 
     officials, that a White House meeting would not occur until 
     Ukraine announced its pursuit of the two political 
     investigations.\48\
       26. On June 17, Ambassador Bill Taylor, whom Secretary of 
     State Mike Pompeo had asked to replace Ambassador 
     Yovanovitch, arrived in Kyiv as the new Charge 
     d'Affaires.\49\
       27. Ambassador Taylor quickly observed that there was an 
     ``irregular channel'' led by Mr. Giuliani that, over time, 
     began to undermine the official channel of U.S. diplomatic 
     relations with Ukraine.\50\ Ambassador Sondland similarly 
     testified that the agenda described by Mr. Giuliani became 
     more ``insidious'' over time.\51\ Mr. Giuliani would prove to 
     be, as the President's National Security Advisor Ambassador 
     John Bolton told a colleague, a ``hand grenade that was going 
     to blow everyone up.'' \52\

C. The President Froze Vital Military and Other Security Assistance for 
                                Ukraine

       28. Since 2014, Ukraine has been engaged in an ongoing 
     armed conflict with Russia in the Donbas region of eastern 
     Ukraine.\53\ Ukraine is a ``strategic partner of the United 
     States,'' and the United States has long supported Ukraine in 
     its conflict with Russia.\54\ As Ambassador Volker and 
     multiple other witnesses testified, supporting Ukraine is 
     ``critically important'' to U.S. interests, including 
     countering Russian aggression in the region.\55\
       29. Ukrainians face casualties on a near-daily basis in 
     their ongoing conflict with Russia.\56\ Since 2014, Russian 
     aggression has resulted in more than 13,000 Ukrainian deaths 
     on Ukrainian territory,\57\ including approximately 3,331 
     civilians, and has wounded another 30,000 persons.\58\
       30. Since 2014, following Russia's invasion of Ukraine and 
     its annexation of the Crimean Peninsula, Congress has 
     allocated military and other security assistance funds to 
     Ukraine on a broad bipartisan basis.\59\ Since 2014, the 
     United States has provided approximately $3.1 billion in 
     foreign assistance to Ukraine: $1.5 billion in military and 
     other security assistance, and $1.6 billion in non-military, 
     non-humanitarian aid to Ukraine.\60\
       31. The military assistance provided by the United States 
     to Ukraine ``saves lives'' by making Ukrainian resistance to 
     Russia more effective.\61\ It likewise advances U.S. national 
     security interests because, ``[i]f Russia prevails and 
     Ukraine falls to Russian dominion, we can expect to see other 
     attempts by Russia to expand its territory and influence.'' 
     \62\ Indeed, the reason the United States provides assistance 
     to the Ukrainian military is ``so that they can fight Russia 
     over there, and we don't have to fight Russia here.'' \63\
       32. The United States' European allies have similarly 
     provided political and economic support to Ukraine. Since 
     2014, the European Union (EU) has been the largest donor to 
     Ukraine.\64\ The EU has extended more macro-financial 
     assistance to Ukraine--approximately =3.3 billion--than to 
     any other non-EU country and has committed to extend another 
     =1.1 billion.\65\ Between 2014 and September 30, 2019, the EU 
     and the European financial institutions (including the 
     European Investment Bank, European Bank for Reconstruction 
     and Development, and others) committed over 15 billion in 
     grants and loans to support the reform process in 
     Ukraine.\66\ According to EU data, Germany contributed =786.5 
     million to Ukraine between 2014 and 2017; the United Kingdom 
     contributed =105.6 million; and France contributed =61.9 
     million over that same period (not including the amounts 
     these countries contribute through the EU).\67\
       33. In 2017 and 2018, the United States provided 
     approximately $511 million and $359 million, respectively, in 
     foreign assistance to Ukraine, including military and other 
     security assistance.\68\ During those two years, President 
     Trump and his Administration allowed the funds to flow to 
     Ukraine unimpeded.\69\
       34. For fiscal year 2019, Congress appropriated and 
     authorized $391 million in taxpayer-funded security 
     assistance to Ukraine: $250 million in funds administered by 
     the Department of Defense (DOD) and $115 million in funds 
     administered by the State Department, with another $26 
     million carried over from fiscal year 2018.\70\
       35. DOD planned to use the funds to provide Ukraine with 
     sniper rifles, rocket-propelled grenade launchers, counter-
     artillery radars, electronic warfare detection and secure 
     communications, and night vision equipment, among other 
     military equipment, to defend itself against Russian forces, 
     which have occupied part of eastern Ukraine since 2014.\71\ 
     These purposes were consistent with the goals of Congress, 
     which had appropriated the funds administered by DOD under 
     the Ukraine Security Assistance Initiative (USAI) for the 
     purpose of providing ``training; equipment; lethal 
     assistance; logistics support, supplies and services; 
     sustainment; and intelligence support to the military and 
     national security forces of Ukraine, and . . . replacement of 
     any weapons or articles provided to the Government of 
     Ukraine.'' \72\
       36. On June 18, 2019, after all Congressionally mandated 
     conditions on the DOD-administered aid--including 
     certification that Ukraine had adopted sufficient anti-
     corruption reforms--were met, DOD issued a press release 
     announcing its intention to provide the $250 million in 
     security assistance to Ukraine.\73\
       37. On June 19, the Office of Management and Budget 1(OMB) 
     received questions from President Trump about the funding for 
     Ukraine.\74\ OMB, in turn, made inquiries with DOD.\75\
       38. On June 27, Acting Chief of Staff Mick Mulvaney 
     reportedly emailed his senior advisor Robert Blair, ``Did we 
     ever find out about the money for Ukraine and whether we can 
     hold it back?'' Mr. Blair responded that it would be 
     possible, but they should ``[e]xpect Congress to become 
     unhinged'' if the President held back the appropriated 
     funds.\76\
       39. Around this time, despite overwhelming support for the 
     security assistance from every relevant Executive Branch 
     agency,\77\ and despite the fact that the funds had been 
     authorized and appropriated by Congress with strong 
     bipartisan support,\78\ the President ordered a hold on all 
     military and other security assistance for Ukraine.\79\
       40. By July 3, OMB had blocked the release of $141 million 
     in State Department funds. By July 12, all military and other 
     security assistance for Ukraine had been blocked.\80\
       41. On July 18, OMB announced to the relevant Executive 
     Branch agencies during a secure videoconference that 
     President Trump had ordered a hold on all Ukraine security 
     assistance.\81\ No explanation for the hold was provided.\82\
       42. On July 25--approximately 90 minutes after President 
     Trump spoke by phone with President Zelensky--OMB's Associate 
     Director for National Security Programs, Michael

[[Page S302]]

     Duffey, a political appointee, instructed DOD officials: 
     ``Based on guidance I have received and in light of the 
     Administration's plan to review assistance to Ukraine, 
     including the Ukraine Security Assistance Initiative, please 
     hold off on any additional DoD obligations of these funds, 
     pending direction from that process.'' \83\ He added: ``Given 
     the sensitive nature of the request, I appreciate your 
     keeping that information closely held to those who need to 
     know to execute the direction.'' \84\
       43. In late July, the NSC convened a series of interagency 
     meetings during which senior Executive Branch officials 
     discussed the hold on security assistance.\85\ Over the 
     course of these meetings, a number of facts became clear: (1) 
     the President personally directed the hold through OMB; \86\ 
     (2) no credible justification was provided for the hold; \87\ 
     (3) with the exception of OMB, all relevant agencies 
     supported the Ukraine security assistance because, among 
     other things, it was in the national security interests of 
     the United States; \88\ and (4) there were serious concerns 
     about the legality of the hold.\89\
       44. Although President Trump later claimed that the hold 
     was part of an effort to get European allies to share more of 
     the costs for security assistance for Ukraine, officials 
     responsible for the security assistance testified they had 
     not heard that rationale discussed in June, July, or August. 
     For example, Mark Sandy, OMB's Deputy Associate Director for 
     National Security Programs, who is responsible for DOD's 
     portion of the Ukraine security assistance, testified that 
     the European burden-sharing explanation was first provided to 
     him in September--following his repeated requests to learn 
     the reason for the hold.\90\ Deputy Assistant Secretary of 
     Defense Laura Cooper, whose responsibilities include the 
     Ukraine security assistance, testified that she had ``no 
     recollection of the issue of allied burden sharing coming 
     up'' in the three meetings she attended about the freeze on 
     security assistance, nor did she recall hearing about a lack 
     of funding from Ukraine's allies as a reason for the 
     freeze.\91\ Ms. Cooper further testified that there was no 
     policy or interagency review process relating to the Ukraine 
     security assistance that she ``participated in or knew of'' 
     in August 2019.\92\ In addition, while the aid was being 
     withheld, Ambassador Sondland, the U.S. Ambassador to the EU, 
     was never asked to reach out to the EU or its member states 
     to ask them to increase their contributions to Ukraine.\93\
       45. Two OMB career officials, including one of its legal 
     counsel, ultimately resigned, in part, over concerns about 
     the handling of the hold on security assistance.\94\ A 
     confidential White House review has reportedly ``turned up 
     hundreds of documents that reveal extensive efforts to 
     generate an after-the-fact justification'' for the hold.\95\
       46. Throughout August, officials from DOD warned officials 
     from OMB that, as the hold continued, there was an increasing 
     risk that the funds for Ukraine would not be timely 
     obligated, in violation of the Impoundment Control Act of 
     1974.\96\ On January 16, 2020, the U.S. Government 
     Accountability Office (GAO) concluded that OMB had, in 
     fact, violated the Impoundment Control Act when it 
     withheld from obligation funds appropriated by Congress to 
     DOD for security assistance to Ukraine. GAO stated that 
     ``[f]aithful execution of the law does not permit the 
     President to substitute his own policy priorities for 
     those that Congress has enacted into law.'' \97\
       47. In late August, Secretary of Defense Mike Esper, 
     Secretary of State Pompeo, and National Security Advisor 
     Bolton reportedly urged the President to release the aid to 
     Ukraine, advising the President that the aid was in America's 
     national security interest.\98\ On August 30, however, an OMB 
     official advised a Pentagon official by email that there was 
     a ``clear direction from POTUS to continue to hold.'' \99\
       48. Contrary to U.S. national security interests--and over 
     the objections of his own advisors--President Trump continued 
     to withhold the funding to Ukraine through August and into 
     September, without any credible explanation.\100\

    D. President Trump Conditioned a White House Meeting on Ukraine 
    Announcing It Would Launch Politically Motivated Investigations

       49. Upon his arrival in Kyiv in June 2019, Ambassador 
     Taylor sought to schedule the promised White House meeting 
     for President Zelensky, which was ``an agreed-upon goal'' of 
     policymakers in Ukraine and the United States.\101\
       50. As Ambassador Volker explained, a White House visit by 
     President Zelensky would constitute ``a tremendous symbol of 
     support'' for Ukraine and would ``enhance[] [President 
     Zelensky's] stature.'' \102\
       51. Ambassador Taylor learned, however, that President 
     Trump ``wanted to hear from Zelensky,'' who had to ``make 
     clear'' to President Trump that he was not ``standing in the 
     way of investigations.' '' \103\ It soon became clear to 
     Ambassador Taylor and others that the White House meeting 
     would not be scheduled until the Ukraine committed to the 
     investigations of ``Burisma and alleged Ukrainian influence 
     in the 2016 elections.'' \104\
       52. Ambassador Sondland was unequivocal in describing this 
     conditionality. He testified:
       I know that members of this committee frequently frame 
     these complicated issues in the form of a simple question: 
     Was there a quid pro quo? As I testified previously with 
     regard to the requested White House call and the White House 
     meeting, the answer is yes.\105\
       53. According to Ambassador Sondland, the public 
     announcement of the investigations--and not necessarily the 
     pursuit of the investigations themselves--was the price 
     President Trump sought in exchange for a White House meeting 
     with Ukrainian President Zelensky.\106\
       54. Both Ambassadors Volker and Sondland explicitly 
     communicated this quid pro quo to Ukrainian government 
     officials. For example, on July 2, in Toronto, Canada, 
     Ambassador Volker conveyed the message directly to President 
     Zelensky and referred to the ``Giuliani factor'' in President 
     Zelensky's engagement with the United States.\107\ Ambassador 
     Volker told Ambassador Taylor that during the Toronto 
     conference, he counseled President Zelensky about how he 
     ``could prepare for the phone call with President Trump''--
     specifically, that President Trump ``would like to hear about 
     the investigations.'' \108\
       55. Ambassador Volker confirmed that, in ``a pull-aside'' 
     meeting in Toronto, he ``advise[d] [President Zelensky] that 
     he should call President Trump personally because he needed 
     to . . . be able to convey to President Trump that he was 
     serious about fighting corruption, investigating things that 
     happened in the past and so forth.'' \109\ Upon hearing about 
     this discussion, Deputy Assistant Secretary of State for 
     European and Eurasian Affairs George Kent told Ambassador 
     Volker that ``asking for another country to investigate a 
     prosecution for political reasons undermines our advocacy of 
     the rule of law.'' \110\
       56. On July 10, at a meeting with Ukrainian officials in 
     Ambassador Bolton's office at the White House, Ambassador 
     Sondland was even more explicit about the quid pro quo. He 
     stated--in front of multiple witnesses, including two top 
     advisors to President Zelensky and Ambassador Bolton--that he 
     had an arrangement with Mr. Mulvaney to schedule the White 
     House visit after Ukraine initiated the ``investigations.'' 
     \111\
       57. In a second meeting in the White House Ward Room 
     shortly thereafter, ``Ambassador Sondland, in front of the 
     Ukrainians . . . was talking about how he had an agreement 
     with Chief of Staff Mulvaney for a meeting with the 
     Ukrainians if they were going to go forward with 
     investigations.'' \112\ More specifically, Lt. Col. Vindman 
     testified that Ambassador Sondland said ``[t]hat the 
     Ukrainians would have to deliver an investigation into the 
     Bidens.'' \113\
       58. During that meeting, Dr. Hill and Lt. Col. Vindman 
     objected to Ambassador Sondland intertwining what Dr. Hill 
     later described as a ``domestic political errand'' with 
     official national security policy toward Ukraine.\114\
       59. Following the July 10 meetings, Dr. Hill discussed what 
     had occurred with Ambassador Bolton, including Ambassador 
     Sondland's reiteration of the quid pro quo to the Ukrainians 
     in the Ward Room. Ambassador Bolton told her to ``go and tell 
     [the NSC Legal Advisor] that I am not part of whatever drug 
     deal Sondland and Mulvaney are cooking up on this.'' \115\
       60. Both Dr. Hill and Lt. Col. Vindman separately reported 
     Sondland's description of the quid pro quo during the July 10 
     meetings to NSC Legal Advisor, John Eisenberg, who said he 
     would follow up.\116\
       61. After the July 10 meetings, Andriy Yermak, a top aide 
     to President Zelensky who was in the meetings, followed up 
     with Ambassador Volker by text message: ``Thank you for 
     meeting and your clear and very logical position . . . I feel 
     that the key for many things is Rudi [sic] and I [am] ready 
     to talk with him at any time.'' \117\
       62. Over the next two weeks, Ambassadors Sondland and 
     Volker coordinated with Mr. Giuliani and senior Ukrainian and 
     American officials to arrange a telephone call between 
     President Trump and President Zelensky. They also worked to 
     ensure that, during that phone call, President Zelensky would 
     convince President Trump of his willingness to undertake the 
     investigations in order to get the White House meeting 
     scheduled.\118\
       63. On July 19, Ambassador Volker had breakfast with Mr. 
     Giuliani at the Trump Hotel in Washington, D.C. After the 
     meeting, Ambassador Volker reported back to Ambassadors 
     Sondland and Taylor about his conversation with Mr. Giuliani, 
     stating, ``Most impt is for Zelensky to say that he will help 
     investigation--and address any specific personnel issues--if 
     there are any.'' \119\
       64. The same day, Ambassador Sondland spoke with President 
     Zelensky and recommended that the Ukrainian leader tell 
     President Trump that he ``will leave no stone unturned'' 
     regarding the investigations during the upcoming Presidential 
     phone call.\120\
       65. Following his conversation with President Zelensky, 
     Ambassador Sondland emailed top Trump Administration 
     officials, including Secretary Pompeo, Mr. Mulvaney, and 
     Secretary Perry. Ambassador Sondland stated that President 
     Zelensky confirmed that he would ``assure'' President Trump 
     that ``he intends to run a fully transparent investigation 
     and will turn over every stone.' '' \121\
       66. Secretary Perry responded to Ambassador Sondland's 
     email, ``Mick just confirmed the call being set up for 
     tomorrow by NSC.'' About an hour later, Mr. Mulvaney replied, 
     ``I asked NSC to set it up for tomorrow.'' \122\
       67. According to Ambassador Sondland, this email--and other 
     correspondence with

[[Page S303]]

     top Trump Administration officials--showed that his efforts 
     regarding Ukraine were not part of a rogue foreign policy. To 
     the contrary, Ambassador Sondland testified that ``everyone 
     was in the loop.'' \123\
       68. The Ukrainians also understood the quid pro quo--and 
     the domestic U.S. political ramifications of the 
     investigations they were being asked to pursue. On July 20, a 
     close advisor to President Zelensky warned Ambassador Taylor 
     that the Ukrainian leader ``did not want to be used as a pawn 
     in a U.S. reelection campaign.'' \124\ The next day, 
     Ambassador Taylor warned Ambassador Sondland that President 
     Zelensky was ``sensitive about Ukraine being taken seriously, 
     not merely as an instrument in Washington domestic, 
     reelection politics.'' \125\
       69. Nevertheless, President Trump, directly and through his 
     hand-picked representatives, continued to press the Ukrainian 
     government for the announcement of the investigations, 
     including during President Trump's July 25 call with 
     President Zelensky.\126\

   E. President Trump Directly Solicited Election Interference From 
                           President Zelensky

       70. In the days leading up to President Trump's July 25 
     call with President Zelensky, U.S. polling data showed former 
     Vice President Biden leading in a head-to-head contest 
     against President Trump.\127\
       71. Meanwhile, Ambassadors Sondland and Volker continued to 
     prepare President Zelensky and his advisors for the call with 
     President Trump until right before it occurred.
       72. On the morning of July 25, Ambassador Sondland spoke 
     with President Trump in advance of his call with President 
     Zelensky. Ambassador Sondland then called Ambassador Volker 
     and left a voicemail.\128\
       73. After receiving Ambassador Sondland's message, 
     Ambassador Volker sent a text message to President Zelensky's 
     aide, Mr. Yermak, approximately 30 minutes before the call:
       Heard from White House--assuming President Z convinces 
     trump he will investigate/ ``get to the bottom of what 
     happened'' in 2016, we will nail down date for visit to 
     Washington. Good luck! \129\
       74. In his public testimony, Ambassador Sondland confirmed 
     that Ambassador Volker's text message to Mr. Yermak 
     accurately summarized the directive he had received from 
     President Trump earlier that morning.\130\
       75. During the roughly 30-minute July 25 call, President 
     Zelensky thanked President Trump for the ``great support in 
     the area of defense'' provided by the United States and 
     stated that Ukraine would soon be prepared to purchase 
     additional Javelin anti-tank missiles from the United 
     States.\131\
       76. President Trump immediately responded with his own 
     request: ``I would like you to do us a favor though,'' which 
     was ``to find out what happened'' with alleged Ukrainian 
     interference in the 2016 election and to ``look into'' former 
     Vice President Biden's role in encouraging the removal of the 
     former Ukrainian prosecutor general.
       77. Referencing Special Counsel Mueller's investigation 
     into Russian interference in the 2016 election, President 
     Trump told President Zelensky, ``[T]hey say a lot of it 
     started with Ukraine,'' and ``[w]hatever you can do, it's 
     very important that you do it if that's possible.'' \132\
       78. President Trump repeatedly pressed the Ukrainian 
     President to consult with his personal lawyer, Mr. Giuliani, 
     as well as Attorney General William Barr, about the two 
     specific investigations.\133\ President Trump stated, ``Rudy 
     very much knows what's happening and he is a very capable 
     guy. If you could speak to him that would be great.'' \134\
       79. President Zelensky agreed, referencing Mr. Giuliani's 
     back-channel role, noting that Mr. Yermak ``spoke with Mr. 
     Giuliani just recently and we are hoping very much that Mr. 
     Giuliani will be able to travel to Ukraine and we will meet 
     once he comes to Ukraine.'' \135\
       80. Later in the call, President Zelensky heeded the 
     directives he had received from Ambassadors Sondland and 
     Volker: he thanked President Trump for his invitation to the 
     White House and then reiterated that, ``[o]n the other 
     hand,'' he would ``ensure'' that Ukraine pursued 
     ``the investigation'' that President Trump had requested. 
     President Zelensky confirmed the investigations should be 
     done ``openly.'' \136\
       81. During the call, President Trump also attacked 
     Ambassador Yovanovitch. He said, ``The former ambassador from 
     the United States, the woman, was bad news and the people she 
     was dealing with in the Ukraine were bad news so I just want 
     to let you know that.'' He later added, ``Well, she's going 
     to go through some things.'' President Trump also defended 
     then-Ukrainian Prosecutor General Yuriy Lutsenko, who was 
     widely known to be corrupt.\137\
       82. The President did not mention any other issues relating 
     to Ukraine, including concerns about Ukrainian corruption, 
     President Zelensky's anti-corruption reforms, or the ongoing 
     war with Russia. The President only identified two people in 
     reference to investigations: Vice President Biden and his 
     son.\138\
       83. Listening to the call as it transpired, several White 
     House staff members became alarmed. Lt. Col. Vindman 
     immediately reported his concerns to NSC lawyers because, as 
     he testified, ``[i]t is improper for the President of the 
     United States to demand a foreign government investigate a 
     U.S. citizen and a political opponent.'' \139\
       84. Jennifer Williams, an advisor to Vice President Pence, 
     testified that the call struck her as ``unusual and 
     inappropriate'' and that ``the references to specific 
     individuals and investigations, such as former Vice President 
     Biden and his son, struck me as political in nature.'' \140\ 
     She believed President Trump's solicitation of an 
     investigation was ``inappropriate'' because it ``appeared to 
     be a domestic political matter.'' \141\
       85. Timothy Morrison, Dr. Hill's successor as the NSC's 
     Senior Director for Europe and Russia and Lt. Col. Vindman's 
     supervisor, said that ``the call was not the full-throated 
     endorsement of the Ukraine reform agenda that I was hoping to 
     hear.'' \142\ He too reported the call to NSC lawyers, 
     worrying that the call would be ``damaging'' if leaked 
     publicly.\143\
       86. In response, Mr. Eisenberg and his deputy, Michael 
     Ellis, tightly restricted access to the call summary, which 
     was placed on a highly classified NSC server even though it 
     did not contain any highly classified information.\144\
       87. On July 26, the day after the call, Ambassador Sondland 
     had lunch with State Department aides in Kyiv, including 
     David Holmes, the Counselor for Political Affairs at the U.S. 
     Embassy in Kyiv. During the lunch, Ambassador Sondland called 
     President Trump directly from his cellphone. President Trump 
     asked Ambassador Sondland whether President Zelensky was 
     ``going to do the investigation.'' Ambassador Sondland stated 
     that President Zelensky was ``going to do it'' and would ``do 
     anything you ask him to.'' \145\
       88. After the call, it was clear to Ambassador Sondland 
     that ``a public statement from President Zelensky'' 
     committing to the investigations was a ``prerequisite'' for a 
     White House meeting.\146\ He told Mr. Holmes that President 
     Trump ``did not give a [expletive] about Ukraine.'' Rather, 
     the President cared only about ``big stuff'' that benefited 
     him personally, like ``the Biden investigation that Mr. 
     Giuliani was pushing,'' and that President Trump had directly 
     solicited during the July 25 call.\147\

 F. President Trump Conditioned the Release of Security Assistance for 
 Ukraine, and Continued To Leverage a White House Meeting, To Pressure 
         Ukraine To Launch Politically Motivated Investigations

       89. As discussed further below, following the July 25 call, 
     President Trump's representatives, including Ambassadors 
     Sondland and Volker, in coordination with Mr. Giuliani, 
     pressed the Ukrainians to issue a public statement announcing 
     the investigations. At the same time, officials in both the 
     United States and Ukraine became increasingly concerned about 
     President Trump's continuing hold on security 
     assistance.\148\
       90. The Ukrainian government was aware of the hold by at 
     least late July, around the time of President Trump's July 25 
     call with President Zelensky. On the day of the call itself, 
     DOD officials learned that diplomats at the Ukrainian Embassy 
     in Washington, D.C., had made multiple overtures to DOD and 
     the State Department ``asking about security assistance.'' 
     \149\
       91. Around this time, two different officials at the 
     Ukrainian Embassy approached Ambassador Volker's special 
     advisor to ask her about the hold.\150\
       92. By mid-August, before the hold was public, Lt. Col. 
     Vindman also received inquiries from the Ukrainian Embassy. 
     Lt. Col. Vindman testified that during this timeframe, ``it 
     was no secret, at least within government and official 
     channels, that security assistance was on hold.'' \151\
       93. The former Ukrainian deputy foreign minister, Olena 
     Zerkal, has acknowledged that she became aware of the hold on 
     security assistance no later than July 30 based on a 
     diplomatic cable--transmitted the previous week--from 
     Ukrainian officials in Washington, D.C.\152\ She said that 
     President Zelensky's office had received a copy of the cable 
     ``simultaneously.'' \153\ Ms. Zerkal further stated that 
     President Zelensky's top advisor, Andriy Yermak, told her 
     ``to keep silent, to not comment without permission'' about 
     the hold or about when the Ukrainian government became aware 
     of it.\154\
       94. In early August, Ambassadors Sondland and Volker, in 
     coordination with Mr. Giuliani, endeavored to pressure 
     President Zelensky to make a public statement announcing the 
     investigations. On August 10--in a text message that showed 
     the Ukrainians' understanding of the quid pro quo--President 
     Zelensky's advisor, Mr. Yermak, told Ambassador Volker that, 
     once a date was set for the White House meeting, he would 
     ``call for a press briefing, announcing upcoming visit and 
     outlining vision for the reboot of US-UKRAINE relationship, 
     including among other things Burisma and election meddling in 
     investigations[.]'' \155\
       95. On August 11, Ambassador Sondland emailed two State 
     Department officials, one of whom acted as a direct line to 
     Secretary Pompeo, to inform them about the agreement for 
     President Zelensky to issue a statement that would include an 
     announcement of the two investigations. Ambassador Sondland 
     stated that he expected a draft of the statement to be 
     ``delivered for our review in a day or two[,]'' and that he 
     hoped the statement would ``make the boss [i.e., President 
     Trump] happy enough to authorize an invitation'' for a White 
     House meeting.\156\
       96. On August 12, Mr. Yermak texted Ambassador Volker an 
     initial draft of the statement. The draft referred to ``the 
     problem of

[[Page S304]]

     interference in the political processes of the United 
     States,'' but it did not explicitly mention the two 
     investigations that President Trump had requested in the July 
     25 call.\157\
       97. The next day, Ambassadors Volker and Sondland discussed 
     the draft statement with Mr. Giuliani, who told them, ``If 
     [the statement] doesn't say Burisma and 2016, it's not 
     credible[.]'' \158\ As Ambassador Sondland would later 
     testify, ``Mr. Giuliani was expressing the desires of the 
     President of the United States, and we knew these 
     investigations were important to the President.'' \159\
       98. Ambassadors Volker and Sondland relayed this message to 
     Mr. Yermak and sent him a revised statement that included 
     explicit references to ``Burisma and the 2016 U.S. 
     elections.'' \160\
       99. In light of President Zelensky's anti-corruption 
     agenda, Ukrainian officials resisted issuing the statement in 
     August and, as a result, there was no movement toward 
     scheduling the White House meeting.\161\
       100. Meanwhile, there was growing concern about President 
     Trump's continued hold on the security assistance for 
     Ukraine. The hold remained in place through August, against 
     the unanimous judgment of American national security 
     officials charged with overseeing U.S.-Ukraine policy. For 
     example, during a high-level interagency meeting in late 
     July, officials unanimously advocated for releasing the 
     hold--with the sole exception of OMB, which was acting under 
     ``guidance from the President and from Acting Chief of Staff 
     Mulvaney to freeze the assistance.'' \162\ But even officials 
     within OMB had internally recommended that the hold be 
     removed because ``assistance to Ukraine is consistent with 
     [U.S.] national security strategy,'' provides the ``benefit . 
     . . of opposing Russian aggression,'' and is backed by 
     ``bipartisan support.'' \163\
       101. Without an explanation for the hold, and with 
     President Trump already conditioning a White House visit on 
     the announcement of the investigations, it became 
     increasingly apparent to multiple witnesses that the security 
     assistance was being withheld in order to pressure Ukraine to 
     announce the investigations. As Ambassador Sondland 
     testified, President Trump's effort to condition release of 
     the security assistance on an announcement of the 
     investigations was as clear as ``two plus two equals four.'' 
     \164\
       102. On August 22, Ambassador Sondland emailed Secretary 
     Pompeo in an effort to ``break the logjam'' on the security 
     assistance and the White House meeting. He proposed that 
     President Trump should arrange to speak to President Zelensky 
     during an upcoming trip to Warsaw, during which President 
     Zelensky could ``look [President Trump] in the eye and tell 
     him'' he was prepared ``to move forward publicly . . . on 
     those issues of importance to Potus and to the U.S.''--i.e., 
     the announcement of the two investigations.\165\
       103. On August 28, news of the hold was publicly reported 
     by Politico.\166\
       104. As soon as the hold became public, Ukrainian officials 
     expressed significant concern to U.S. officials.\167\ They 
     were deeply worried not only about the practical impact that 
     the hold would have on efforts to fight Russian aggression, 
     but also about the symbolic message the now-publicized lack 
     of support from the Trump Administration sent to the Russian 
     government, which would almost certainly seek to exploit any 
     real or perceived crack in U.S. resolve toward Ukraine. Mr. 
     Yermak and other Ukrainian officials told Ambassador Taylor 
     that they were ``desperate'' and would be willing to travel 
     to Washington to raise with U.S. officials the importance of 
     the assistance.\168\ The recently appointed Ukrainian 
     prosecutor general later remarked, ``It's critically 
     important for the west not to pull us into some conflicts 
     between their ruling elites[.]'' \169\
       105. On September 1--within days of President Trump 
     rejecting the request from Secretaries Pompeo and Esper and 
     Ambassador Bolton to release the hold \170\--Vice President 
     Pence met with President Zelensky in Warsaw, Poland after 
     President Trump cancelled his trip.\171\
       106. In advance of this meeting, Ambassador Sondland told 
     Vice President Pence that he ``had concerns that the delay in 
     aid had become tied to the issue of investigations.'' \172\ 
     Sondland testified that Vice President Pence ``nodded like, 
     you know, he heard what I said, and that was pretty much 
     it.'' \173\
       107. During the meeting that followed, which Ambassador 
     Sondland also attended, ``the very first question'' that 
     President Zelensky asked Vice President Pence related to the 
     status of U.S. security assistance.\174\ President Zelensky 
     emphasized that ``the symbolic value of U.S. support in terms 
     of security assistance . . . was just as valuable to the 
     Ukrainians as the actual dollars.'' \175\ He also voiced 
     concern that ``any hold or appearance of reconsideration of 
     such assistance might embolden Russia to think that the 
     United States was no longer committed to Ukraine.'' \176\
       108. Vice President Pence told President Zelensky that he 
     would speak with President Trump that evening. Although Vice 
     President Pence did speak with President Trump, the President 
     still did not lift the hold.\177\
       109. Following the meeting between Vice President Pence and 
     President Zelensky, Ambassador Sondland pulled aside 
     President Zelensky's advisor, Mr. Yermak, to explain that 
     ``the resumption of U.S. aid would likely not occur until 
     Ukraine took some kind of action on [issuing a] public 
     statement'' about the investigations.\178\
       110. Immediately following that conversation, Ambassador 
     Sondland walked over to Mr. Morrison, who had been standing 
     across the room observing their interactions. Ambassador 
     Sondland told Mr. Morrison that ``what he had communicated 
     [to Mr. Yermak] was that . . . what could help [Ukraine] move 
     the aid was if the prosecutor general would go to the mike 
     [sic] and announce that he was opening'' the 
     investigations.\179\
       111. Later that day, Mr. Morrison reported this 
     conversation to Ambassador Bolton, who advised him to ``stay 
     out of it'' and to brief the NSC's lawyers. Mr. Morrison 
     subsequently reported the conversation to Mr. Eisenberg.\180\
       112. Mr. Morrison also informed Ambassador Taylor about his 
     conversation with Ambassador Sondland. Ambassador Taylor was 
     ``alarmed by what Mr. Morrison told [him] about the Sondland-
     Yermak conversation.'' \181\ He followed up by texting 
     Ambassador Sondland, ``Are we now saying that security 
     assistance and WH meeting are conditioned on 
     investigations?'' Ambassador Sondland responded, ``Call me.'' 
     \182\
       113. Ambassadors Sondland and Taylor then spoke by 
     telephone. Ambassador Sondland again relayed what he told Mr. 
     Yermak and explained that he had made a ``mistake'' in 
     telling Ukrainian officials that only the White House meeting 
     was conditioned on a public announcement of the 
     investigations. He clarified that ``everything''--the White 
     House meeting and security assistance for Ukraine--was 
     conditioned on the announcement of the investigations.\183\ 
     Ambassador Sondland explained to Ambassador Taylor that 
     ``President Trump wanted President Zelensky in a public box, 
     by making a public statement about ordering such 
     investigations.'' \184\
       114. On September 7, President Trump and Ambassador 
     Sondland spoke by telephone.\185\ As Ambassador Sondland 
     relayed later that day during a call with Mr. Morrison, 
     President Trump told him ``that there was no quid pro quo, 
     but President Zelensky must announce the opening of the 
     investigations and he should want to do it.'' \186\
       115. Mr. Morrison conveyed the substance of the September 7 
     call between President Trump and Ambassador Sondland to 
     Ambassador Taylor. Mr. Morrison said that the call had given 
     him ``a sinking feeling'' because he feared the security 
     assistance would not be released before September 30, the end 
     of the fiscal year, and because he ``did not think it was a 
     good idea for the Ukrainian President to . . . involve 
     himself in our politics.'' \187\ At Ambassador Bolton's 
     direction, Mr. Morrison reported Ambassador Sondland's 
     description of the President's statements to the NSC 
     lawyers.\188\
       116. The next day, September 8, Ambassador Sondland 
     confirmed in a phone call with Ambassador Taylor that he had 
     spoken to President Trump and that ``President Trump was 
     adamant that President Zelensky himself had to'' announce the 
     investigations publicly.\189\
       117. Ambassador Sondland also told Ambassador Taylor that 
     he had passed President Trump's message directly to President 
     Zelensky and Mr. Yermak and had told them that ``although 
     this was not a quid pro quo, if President Zelensky did not 
     clear things up in public, we would be at a stalemate''--
     meaning ``Ukraine would not receive the much-needed military 
     assistance.'' \190\
       118. Early the next morning, on September 9, Ambassador 
     Taylor texted Ambassadors Sondland and Volker: ``As I said on 
     the phone, I think it's crazy to withhold security assistance 
     for help with a political campaign.'' \191\
       119. The Ukrainians succumbed to the pressure. In early 
     September, President Zelensky agreed to do a televised 
     interview, during which he would publicly announce the 
     investigations. The Ukrainians made arrangements for the 
     interview to occur on CNN later in September.\192\
       120. The White House subsequently confirmed that the 
     release of the security assistance had been conditioned on 
     Ukraine's announcement of the investigations. During a White 
     House press conference on October 17, Acting Chief of Staff 
     Mulvaney acknowledged that he had discussed security 
     assistance with the President and that the President's 
     decision to withhold it was directly tied to his desire that 
     Ukraine investigate alleged Ukrainian interference in the 
     2016 U.S. election.\193\
       121. After a reporter attempted to clarify this explicit 
     acknowledgement of a ``quid pro quo,'' Mr. Mulvaney replied, 
     ``We do that all the time with foreign policy.'' He added, 
     ``I have news for everybody: get over it. There is going to 
     be political influence in foreign policy.'' \194\
       122. Multiple foreign policy and national security 
     officials testified that the pursuit of investigations into 
     the Bidens and alleged Ukrainian interference in the 2016 
     election was not part of official U.S. policy.\195\ Instead, 
     as Dr. Hill described, these investigations were part of a 
     ``domestic political errand'' of President Trump.\196\ Mr. 
     Kent further explained that urging Ukraine to engage in 
     ``selective politically associated investigations or 
     prosecutions'' undermines our longstanding efforts to promote 
     the rule of law abroad.\197\
       123. Ambassador Volker, in response to an inquiry from 
     President Zelensky's advisor, Mr. Yermak, confirmed that the 
     U.S. Department of Justice (DOJ) did not make an official 
     request for Ukraine's assistance in these 
     investigations.\198\

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       124. Within hours after the White House publicly released a 
     record of the July 25 call, DOJ itself confirmed in a 
     statement that no such request was ever made:
       The President has not spoken with the Attorney General 
     about having Ukraine investigate anything related to former 
     Vice President Biden or his son. The President has not asked 
     the Attorney General to contact Ukraine--on this or any other 
     matter. The Attorney General has not communicated with 
     Ukraine--on this or any other subject.\199\

  G. President Trump Was Forced to Lift the Hold but Has Continued to 
         Solicit Foreign Interference in the Upcoming Election

       125. As noted above, by early September 2019, President 
     Zelensky had signaled his willingness to announce the two 
     investigations to secure a White House meeting and the 
     security assistance. He was scheduled to make the 
     announcement during a CNN interview later in September, but 
     other events intervened.\200\
       126. On September 9, the House Permanent Select Committee 
     on Intelligence, the Committee on Oversight and Reform, and 
     the Committee on Foreign Affairs announced a joint 
     investigation into the scheme by President Trump ``to 
     improperly pressure the Ukrainian government to assist the 
     President's bid for reelection.'' \201\ The same day, the 
     Committees sent document production and preservation requests 
     to the White House and the State Department.\202\
       127. NSC staff members believed that the Congressional 
     investigation ``might have the effect of releasing the hold'' 
     on Ukraine military assistance, because it would have been 
     ``potentially politically challenging'' to ``justify that 
     hold.'' \203\
       128. Later that day, the Inspector General of the 
     Intelligence Community (ICIG) wrote to the Chairman and 
     Ranking Member of the Intelligence Committee notifying them 
     that a whistleblower had filed a complaint on August 12 that 
     the ICIG had determined to be both an ``urgent concern'' and 
     ``credible.'' The ICIG did not disclose the contents of the 
     complaint.\204\
       129. The ICIG further stated that the Acting Director of 
     National Intelligence (DNI) had taken the unprecedented step 
     of withholding the whistleblower complaint from 
     Congress.\205\ It was later revealed that the Acting DNI had 
     done so as a result of communications with the White House 
     and the Department of Justice.\206\ The next day, September 
     10, Chairman Schiff wrote to Acting DNI Joseph Maguire to 
     express his concern about the Acting DNI's ``unprecedented 
     departure from past practice'' in withholding the 
     whistleblower complaint and observed that the ``failure to 
     transmit to the Committee an urgent and credible 
     whistleblower complaint, as required by law, raises the 
     prospect that an urgent matter of a serious nature is being 
     purposefully concealed from the Committee.'' \207\
       130. The White House was aware of the contents of the 
     whistleblower complaint since at least August 26, when the 
     Acting DNI informed the White House Counsel's Office of the 
     complaint.\208\ White House Counsel Pat Cipollone and Mr. 
     Eisenberg reportedly briefed President Trump on the 
     whistleblower complaint in late August and discussed whether 
     they had to give it to Congress.\209\
       131. On September 11--two days after the ICIG notified 
     Congress of the whistleblower complaint and the three House 
     Committees announced their investigation--President Trump 
     lifted the hold on security assistance. As with the 
     implementation of the hold, no credible reason was provided 
     for lifting the hold.\210\ At the time of the release, there 
     had been no discernible changes in international assistance 
     commitments for Ukraine or Ukrainian anti-corruption 
     reforms.\211\
       132. Because of the hold the President placed on security 
     assistance for Ukraine, DOD was unable to spend approximately 
     $35 million--or 14 percent--of the funds appropriated by 
     Congress for fiscal year 2019.\212\
       133. Congress was forced to pass a new law to extend the 
     funding in order to ensure the full amount could be used by 
     Ukraine to defend itself.\213\ Still, by early December 2019, 
     Ukraine had not received approximately $20 million of the 
     military assistance.\214\
       134. Although the hold was lifted, the White House still 
     had not announced a date for President Zelensky's meeting 
     with President Trump, and there were indications that 
     President Zelensky's interview with CNN would still 
     occur.\215\
       135. On September 18, a week before President Trump was 
     scheduled to meet with President Zelensky on the sidelines of 
     the U.N. General Assembly in New York, Vice President Pence 
     had a telephone call with President Zelensky. During the 
     call, Vice President Pence ``ask[ed] a bit more about . . . 
     how Zelensky's efforts were going.'' \216\ Additional details 
     about this call were provided to the House by Vice President 
     Pence's advisor, Jennifer Williams, but were classified by 
     the Office of the Vice President.\217\ Despite repeated 
     requests, the Vice President has refused to declassify Ms. 
     Williams' supplemental testimony.
       136. On September 18 or 19, at the urging of Ambassador 
     Taylor,\218\ President Zelensky cancelled the CNN 
     interview.\219\
       137. To date, almost nine months after the initial 
     invitation was extended by President Trump on April 21, a 
     White House meeting for President Zelensky has not 
     occurred.\220\ Since the initial invitation, President Trump 
     has met with more than a dozen world leaders at the 
     White House, including a meeting in the Oval Office with 
     the Foreign Minister of Russia on December 10.\221\
       138. Since lifting the hold, and even after the House 
     impeachment inquiry was announced on September 24, President 
     Trump has continued to press Ukraine to investigate Vice 
     President Biden and alleged 2016 election interference by 
     Ukraine.\222\
       139. On September 24, in remarks at the opening session of 
     the U.N. General Assembly, President Trump stated: ``What Joe 
     Biden did for his son, that's something they [Ukraine] should 
     be looking at.'' \223\
       140. On September 25, in a joint public press availability 
     with President Zelensky, President Trump stated that ``I want 
     him to do whatever he can'' in reference to the investigation 
     of the Bidens.\224\ The same day, President Trump denied that 
     his pursuit of the investigation involved a quid pro 
     quo.\225\
       141. On September 30, during remarks at the swearing-in of 
     the new Labor Secretary, President Trump stated: ``Now, the 
     new President of Ukraine ran on the basis of no corruption. . 
     . . But there was a lot of corruption having to do with the 
     2016 election against us. And we want to get to the bottom of 
     it, and it's very important that we do.'' \226\
       142. On October 3, when asked by a reporter what he had 
     hoped President Zelensky would do following their July 25 
     call, President Trump responded: ``Well, I would think that, 
     if they were honest about it, they'd start a major 
     investigation into the Bidens. It's a very simple answer.'' 
     \227\ The President also suggested that ``China should start 
     an investigation into the Bidens, because what happened in 
     China is just about as bad as what happened with--with 
     Ukraine.\228\
       143. On October 4, President Trump equated his interest in 
     ``looking for corruption'' to the investigation of two 
     particular subjects: the Bidens and alleged Ukrainian 
     interference in the 2016 election. He told reporters:
       What I want to do--and I think I have an obligation to do 
     it, probably a duty to do it: corruption--we are looking for 
     corruption. When you look at what Biden and his son did, and 
     when you look at other people--what they've done. And I 
     believe there was tremendous corruption with Biden, but I 
     think there was beyond--I mean, beyond corruption--having to 
     do with the 2016 campaign, and what these lowlifes did to so 
     many people, to hurt so many people in the Trump campaign--
     which was successful, despite all of the fighting us. I mean, 
     despite all of the unfairness.\229\
       When asked by a reporter, ``Is someone advising you that it 
     is okay to solicit the help of other governments to 
     investigate a potential political opponent?,'' Trump replied 
     in part, ``Here's what's okay: If we feel there's corruption, 
     like I feel there was in the 2016 campaign--there was 
     tremendous corruption against me--if we feel there's 
     corruption, we have a right to go to a foreign country.'' 
     \230\
       144. As the House's impeachment inquiry unfolded, Mr. 
     Giuliani, on behalf of the President, also continued to urge 
     Ukraine to pursue the investigations and dig up dirt on 
     former Vice President Biden. Mr. Giuliani's own statements 
     about these efforts further confirm that he has been working 
     in furtherance of the President's personal and political 
     interests.\231\
       145. During the first week of December, Mr. Giuliani 
     traveled to Kyiv and Budapest to meet with both current and 
     former Ukrainian government officials,\232\ including a 
     current Ukrainian member of Parliament who attended a KGB 
     school in Moscow and has led calls to investigate Burisma and 
     the Bidens.\233\ Mr. Giuliani also met with the corrupt 
     former prosecutor generals, Viktor Shokin and Yuriy Lutsenko, 
     who had promoted the false allegations underlying the 
     investigations President Trump wanted.\234\ Mr. Giuliani told 
     the New York Times that in meeting with Ukrainian officials 
     he was acting on behalf of his client, President Trump: 
     ``[L]ike a good lawyer, I am gathering evidence to defend my 
     client against the false charges being leveled against him.'' 
     \235\
       146. During his trip to Ukraine, on December 5, Mr. 
     Giuliani tweeted: ``The conversation about corruption in 
     Ukraine was based on compelling evidence of criminal conduct 
     by then VP Biden, in 2016, that has not been resolved and 
     until it is will be a major obstacle to the U.S. assisting 
     Ukraine with its anti-corruption reforms.'' \236\ Not only 
     was Mr. Giuliani perpetuating the false allegations against 
     Vice President Biden, but he was reiterating the threat that 
     President Trump had used to pressure President Zelensky to 
     announce the investigations: that U.S. assistance to Ukraine 
     could be in jeopardy until Ukraine investigated Vice 
     President Biden.
       147. Mr. Giuliani told the Wall Street Journal that when he 
     returned to New York on December 7, President Trump called 
     him as his plane was still taxiing down the runway. `` `What 
     did you get?' he said Mr. Trump asked. `More than you can 
     imagine,' Mr. Giuliani replied.'' \237\
       148. Later that day, President Trump told reporters that he 
     was aware of Mr. Giuliani's efforts in Ukraine and believed 
     that Mr. Giuliani wanted to report the information he'd 
     gathered to the Attorney General and Congress.\238\
       149. On December 17, Mr. Giuliani confirmed that President 
     Trump has been ``very supportive'' of his continuing efforts 
     to dig up dirt on Vice President Biden in Ukraine and that 
     they are ``on the same page.'' \239\

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       150. Such ongoing efforts by President Trump, including 
     through his personal attorney, to solicit an investigation of 
     his political opponent have undermined U.S. credibility. On 
     September 14, Ambassador Volker advised Mr. Yermak against 
     the Zelensky Administration conducting an investigation into 
     President Zelensky's own former political rival, former 
     Ukrainian President Petro Poroshenko. When Ambassador Volker 
     raised concerns about such an investigation, Mr. Yermak 
     retorted, ``What, you mean like asking us to investigate 
     Clinton and Biden?'' \240\ Ambassador Volker offered no 
     response.\241\
       151. Mr. Holmes, a career diplomat, highlighted this 
     hypocrisy: ``While we had advised our Ukrainian counterparts 
     to voice a commitment to following the rule of law and 
     generally investigating credible corruption allegations,'' 
     U.S. officials were making ``a demand that President Zelensky 
     personally commit on a cable news channel to a specific 
     investigation of President Trump's political rival.'' \242\

     H. President Trump's Conduct Was Consistent with His Previous 
         Invitations of Foreign Interference in U.S. Elections

       152. President Trump's efforts to solicit Ukraine's 
     interference in the 2020 U.S. Presidential election to help 
     his own reelection campaign were consistent with his prior 
     solicitation and encouragement of Russia's interference in 
     the 2016 election, when the Trump Campaign ``expected it 
     would benefit electorally from information stolen and 
     released through Russian efforts.'' \243\
       153. As a Presidential candidate, Mr. Trump repeatedly 
     sought to benefit from Russia's actions to help his campaign. 
     For example, during a public rally on July 27, 2016, then-
     candidate Trump declared: ``Russia, if you're listening, I 
     hope you're able to find the 30,000 emails that are missing'' 
     from opposing candidate Hillary Clinton's personal 
     server.\244\ Within hours, Russian hackers targeted Clinton's 
     personal office for the first time.\245\
       154. Days earlier, WikiLeaks had begun releasing emails and 
     documents that were stolen by Russian military intelligence 
     services in order to damage the Clinton campaign.\246\ 
     WikiLeaks continued releasing stolen documents through 
     October 2016.\247\ Then-candidate Trump repeatedly applauded 
     and sought to capitalize on WikiLeaks's releases of these 
     stolen documents, even after Russia's involvement was heavily 
     reported by the press.\248\ Members of the Trump Campaign 
     also planned messaging and communications strategies around 
     releases by WikiLeaks.\249\ In the last month of the 
     campaign, then-candidate Trump publicly referred to the 
     emails hacked by Russia and disseminated by WikiLeaks over 
     150 times.\250\
       155. Multiple members of the Trump Campaign used additional 
     channels to seek Russia's assistance in obtaining damaging 
     information about Clinton. For example, senior 
     representatives of the Trump Campaign--including the 
     Campaign's chairman and the President's son--met with a 
     Russian attorney in June 2016 who had offered to provide 
     damaging information about Clinton from the Russian 
     government.\251\ A foreign policy advisor to the Trump 
     Campaign also met repeatedly with people connected to the 
     Russian government and their associates, one of whom claimed 
     to have ``dirt'' on Clinton in the form of ``thousands of 
     emails.'' \252\
       156. Even after Special Counsel Mueller released his 
     report, President Trump confirmed his willingness to benefit 
     from foreign election interference. When asked during a 
     televised interview in June 2019 whether he would accept 
     damaging information from a foreign government about a 
     political opponent, the President responded, ``I think I'd 
     take it.'' \253\ President Trump declared that he sees 
     ``nothing wrong with listening'' to a foreign power that 
     offers information detrimental to a political adversary.\254\ 
     Asked whether such an offer of information should be reported 
     to law enforcement, President Trump retorted: ``Give me a 
     break, life doesn't work that way.'' \255\ Just weeks later, 
     President Trump froze security assistance to Ukraine as his 
     agents were pushing that country to pursue investigations 
     that would help the President's reelection campaign.\256\
       157. In addition, President Trump's request for the 
     investigations on the July 25 call with President Zelensky 
     took place one day after former Special Counsel Mueller 
     testified before the House Judiciary Committee and the House 
     Permanent Select Committee on Intelligence about the findings 
     of his investigation into Russia's interference in the 2016 
     Presidential election and President Trump's efforts to 
     undermine that investigation.\257\ During his call with 
     President Zelensky, President Trump derided former Special 
     Counsel Mueller's ``poor performance'' in his July 24 
     testimony and speculated that ``that whole nonsense . . . 
     started with Ukraine.'' \258\
     II. President Trump's Obstruction of Congress
       158. President Trump ordered categorical obstruction of the 
     impeachment inquiry undertaken by the House under Article I 
     of the Constitution, which vests the House with the ``sole 
     Power of Impeachment.'' \259\

              A. The House Launched an Impeachment Inquiry

       159. During the 116th Congress, a number of Committees of 
     the House have undertaken investigations into allegations of 
     misconduct by President Trump and his Administration, 
     including to determine whether to recommend articles of 
     impeachment.\260\
       160. As discussed above, on September 9, the Intelligence 
     Committee and the Committees on Oversight and Reform and 
     Foreign Affairs announced they would conduct a joint 
     investigation into the President's scheme to pressure Ukraine 
     to announce the politically motivated investigations.\261\
       161. Given the gravity of the allegations that President 
     Trump was soliciting foreign interference in the upcoming 
     2020 election, Speaker Nancy P. Pelosi announced on September 
     24 that the House was ``moving forward with an official 
     impeachment inquiry.'' \262\ Speaker Pelosi directed the 
     Committees to ``proceed with their investigations under that 
     umbrella of [an] impeachment inquiry.'' \263\
       162. On October 31, the House enacted a resolution 
     confirming the Committees' authority to conduct the 
     impeachment inquiry and adopting procedures governing the 
     inquiry.\264\
       163. The procedures adopted by the House afforded 
     procedural privileges to the President that were equivalent 
     to, or in some instances exceeded, those afforded during 
     prior impeachment inquiries.\265\ Transcripts of all witness 
     interviews and depositions were released to the public, and 
     President Trump was offered--but refused--multiple 
     opportunities to have his counsel participate in proceedings 
     before the Judiciary Committee, including by cross-examining 
     witnesses and presenting evidence.\266\

   B. President Trump Ordered Categorical Obstruction of the House's 
                          Impeachment Inquiry

       164. Even before the House launched its impeachment inquiry 
     into President Trump's misconduct concerning Ukraine, he 
     rejected Congress's Article I investigative and oversight 
     authority, proclaiming, ``[W]e're fighting all the 
     subpoenas,'' \267\ and ``I have an Article II, where I have 
     the right to do whatever I want as president.'' \268\
       165. In response to the House impeachment inquiry regarding 
     Ukraine, the Executive Branch categorically refused to 
     provide any requested documents or information at President 
     Trump's direction.
       166. On September 9, 2019, three House Committees sent a 
     letter to White House Counsel Pat Cipollone requesting six 
     categories of documents relevant to the Ukraine investigation 
     by September 16.\269\ When the White House did not respond, 
     the Committees sent a follow-up letter on September 24.\270\
       167. Instead of responding directly to the Committees, the 
     President publicly declared the impeachment inquiry ``a 
     disgrace,'' and stated that ``it shouldn't be allowed'' and 
     that ``[t]here should be a way of stopping it.'' \271\
       168. When the White House still did not respond to the 
     Committees' request, the Committees issued a subpoena 
     compelling the White House to turn over documents.\272\
       169. The President's response to the House's inquiry--sent 
     by Mr. Cipollone on October 8 sought to accomplish the 
     President's goal of ``stopping'' the House's investigation. 
     Mr. Cipollone wrote ``on behalf of President Donald J. 
     Trump'' to notify Congress that ``President Trump cannot 
     permit his Administration to participate in this partisan 
     inquiry under these circumstances.'' \273\
       170. Despite the Constitution's placement of the ``sole 
     Power'' of impeachment in the House, Mr. Cipollone's October 
     8 letter opined that the House's inquiry was 
     ``constitutionally invalid,'' ``lack[ed] . . . any basis,'' 
     ``lack[ed] the necessary authorization for a valid 
     impeachment,'' and was merely ``labeled . . . as an 
     `impeachment inquiry.' '' \274\
       171. The letter's rhetoric aligned with the President's 
     public campaign against the impeachment inquiry, which he has 
     branded ``a COUP, intended to take away the Power of the 
     People,'' \275\ an ``unconstitutional abuse of power,'' \276\ 
     and an ``open war on American Democracy.'' \277\
       172. Although President Trump has categorically sought to 
     obstruct the House's impeachment inquiry, he has never 
     formally asserted a claim of executive privilege as to any 
     document or testimony. Mr. Cipollone's October 8 letter 
     refers to ``long-established Executive Branch confidentiality 
     interests and privileges'' but the President did not actually 
     assert executive privilege.\278\ Similarly, a Department of 
     Justice Office of Legal Counsel November 1, 2019 opinion only 
     recognized that information responsive to the subpoenas was 
     ``potentially protected by executive privilege.'' \279\
       173. In addition, the President and his agents have spoken 
     at length about these events to the press and on social 
     media. Since the impeachment inquiry was announced on 
     September 24, the President has made numerous public 
     statements about his communications with President Zelensky 
     and his decision-making relating to the hold on security 
     assistance.\280\
       174. The President's agents have done the same. For 
     example, on October 16, Secretary Perry gave an interview to 
     the Wall Street Journal. During the interview, Secretary 
     Perry stated that after the May 23 meeting at which President 
     Trump refused to schedule a White House meeting with 
     President Zelensky, Secretary Perry ``sought out Rudy 
     Giuliani this spring at President Trump's direction to 
     address Mr. Trump's concerns about alleged Ukrainian 
     corruption.'' \281\ During a phone call with Secretary Perry, 
     Mr. Giuliani said, ``Look, the president is really concerned 
     that there are people in Ukraine

[[Page S307]]

     that tried to beat him during this presidential election. . . 
     . He thinks they're corrupt and . . . that there are still 
     people over there engaged that are absolutely corrupt.'' 
     \282\
       175. On October 17, Acting Chief of Staff Mulvaney 
     acknowledged during a White House press conference that he 
     discussed security assistance with the President and that the 
     President's decision to withhold it was directly tied to his 
     desire that Ukraine investigate alleged Ukrainian 
     interference in the 2016 U.S. election.\283\
       176. On December 3, 2019, the Intelligence Committee 
     transmitted a detailed nearly 300-page report documenting its 
     findings about this scheme and about the related 
     investigation into it, to the Judiciary Committee.\284\ The 
     Judiciary Committee held public hearings evaluating the 
     constitutional standard for impeachment and the evidence 
     against President Trump--in which the President's counsel was 
     invited to participate, but declined--and then reported two 
     Articles of Impeachment to the House.\285\
       177. The President maintained his obstructionist position 
     throughout this process, declaring the House's investigation 
     ``illegitimate'' in a letter to Speaker Nancy Pelosi on 
     December 17, 2019.\286\ President Trump further attempted to 
     undermine the House's inquiry by dismissing impeachment as 
     ``illegal, invalid, and unconstitutional'' \287\ and by 
     intimidating and threatening an anonymous Intelligence 
     Community whistleblower as well as the patriotic public 
     servants who honored their subpoenas and testified before the 
     House.\288\
       178. On December 18, 2019, the House voted to impeach 
     President Trump and adopted two Articles of Impeachment.\289\

C. Following President Trump's Directive, the Executive Branch Refused 
             to Produce Requested and Subpoenaed Documents

       179. Adhering to President Trump's directive, every 
     Executive Branch agency that received an impeachment inquiry 
     request or subpoena defied it.\290\
       180. House Committees issued document requests or subpoenas 
     to the White House, the Office of the Vice President, OMB, 
     the Department of State, DOD, and the Department of 
     Energy.\291\
       181. In its response, the Office of the Vice President 
     echoed Mr. Cipollone's assertions that the impeachment 
     inquiry was procedurally invalid,\292\ while agencies such as 
     OMB and DOD expressly cited the President's directive.\293\
       182. The Executive Branch has refused to produce any 
     documents in response to the Committees' valid, legally 
     binding subpoenas, even though witness testimony has revealed 
     that highly relevant records exist.\294\
       183. Indeed, by virtue of President Trump's order, not a 
     single document has been produced by the White House, the 
     Office of the Vice President, OMB, the Department of State, 
     DOD, or the Department of Energy in response to 71 specific, 
     individualized requests or demands for records in their 
     possession, custody, or control. These agencies and offices 
     also blocked many current and former officials from producing 
     records to the Committees.\295\
       184. Certain witnesses, however, defied the President's 
     order and identified the substance of key documents. For 
     example, Lt. Col. Vindman described a ``Presidential Decision 
     Memo'' he prepared in August that conveyed the ``consensus 
     views'' among foreign policy and national security officials 
     that the hold on aid to Ukraine should be released.\296\ 
     Other witnesses identified additional documents that the 
     President and various agencies were withholding from Congress 
     that were directly relevant to the impeachment inquiry.\297\
       185. Some responsive documents have been released by the 
     State Department, DOD, and OMB pursuant to judicial orders 
     issued in response to lawsuits filed under the Freedom of 
     Information Act (FOIA).\298\ Although limited in scope and 
     heavily redacted, these FOIA productions confirm that the 
     Trump Administration is withholding highly pertinent 
     documents from Congress without any valid legal basis.\299\

 D. President Trump Ordered Top Aides Not to Testify, Even Pursuant to 
                                Subpoena

       186. President Trump directed government witnesses to 
     violate their legal obligations and defy House subpoenas--
     regardless of their offices or positions. In some instances, 
     the President personally directed that senior aides defy 
     subpoenas on the ground that they are ``absolutely immune'' 
     from compelled testimony.\300\ Other officials refused to 
     appear ``as directed by'' Mr. Cipollone's October 8 
     letter.\301\ Still others refused to appear because--
     consistent with the House Deposition Rules drafted by the 
     then-majority Republicans--agency counsel was not permitted 
     in the depositions.\302\
       187. This Administration-wide effort to prevent witnesses 
     from providing testimony was coordinated and comprehensive. 
     In total, twelve current or former Administration officials 
     refused to testify as part of the House's impeachment inquiry 
     into the Ukrainian matter, nine of whom did so in defiance of 
     duly authorized subpoenas.\303\ House Committees advised such 
     witnesses that their refusal to testify may be used as an 
     adverse inference against the President.\304\ Nonetheless--
     despite being instructed by senior political appointees not 
     to cooperate with the House's impeachment inquiry, in 
     directives that frequently cited or enclosed copies of Mr. 
     Cipollone's October 8 letter \305\--many current and 
     former officials complied with their legal obligations to 
     appear for testimony.
       188. House Committees conducted depositions or transcribed 
     interviews of seventeen witnesses.\306\ All members of the 
     Committees--as well as staff from the Majority and the 
     Minority--were permitted to attend. The Majority and Minority 
     were allotted an equal amount of time to question 
     witnesses.\307\
       189. In late November 2019, twelve of these witnesses 
     testified in public hearings convened by the Intelligence 
     Committee, including three witnesses called by the 
     Minority.\308\
       190. Unable to silence certain witnesses, President Trump 
     resorted to intimidation tactics to penalize them.\309\ He 
     also levied sustained attacks on the anonymous 
     whistleblower.\310\

 E. President Trump's Conduct Was Consistent with His Previous Efforts 
 to Obstruct Investigations into Foreign Interference in U.S. Elections

       191. President Trump's obstruction of the House's 
     impeachment inquiry was consistent with his previous efforts 
     to undermine Special Counsel Mueller's investigation of 
     Russia's interference in the 2016 election and of the 
     President's own misconduct.
       192. President Trump repeatedly used his powers of office 
     to undermine and derail the Mueller investigation, 
     particularly after learning that he was personally under 
     investigation for obstruction of justice.\311\ Among other 
     things, President Trump ordered White House Counsel Don 
     McGahn to fire Special Counsel Mueller; \312\ instructed Mr. 
     McGahn to create a record and issue statements falsely 
     denying this event; \313\ sought to curtail Special Counsel 
     Mueller's investigation in a manner exempting his own prior 
     conduct; \314\ and tampered with at least two key 
     witnesses.\315\ President Trump has since instructed McGahn 
     to defy a House Committee's subpoena for testimony, and his 
     DOJ has erroneously argued that the courts can play no role 
     in enforcing Congressional subpoenas.\316\
       193. Special Counsel Mueller's investigation--like the 
     House's impeachment inquiry--sought to uncover whether 
     President Trump coordinated with a foreign government in 
     order to obtain an improper advantage during a Presidential 
     election.\317\ And the Mueller investigation--like the 
     House's impeachment inquiry--exposed President Trump's 
     eagerness to benefit from foreign election interference.\318\ 
     In the former instance, the President used his powers of 
     office to undermine an investigation conducted by officials 
     within the Executive Branch.\319\ In the latter, he attempted 
     to block the United States House of Representatives from 
     exercising its ``sole Power of Impeachment'' assigned by the 
     Constitution. In both instances, President Trump obstructed 
     investigations into foreign election interference to hide his 
     own misconduct.
       1. See Report of the H. Permanent Select Comm. on 
     Intelligence on the Trump-Ukraine Impeachment Inquiry, 
     together with Minority Views, H. Rep. No. 116-335 (2019); 
     Impeachment of Donald J. Trump, President of the United 
     States: Report of the Comm. on the Judiciary of the H. of 
     Representatives, together with Dissenting Views, to Accompany 
     H. Res. 755, H. Rep. No. 116-346 (2019).
       2. U.S. Const., Art. I, Sec. 2, cl. 5.
       3. Transcript, Deposition of Lt. Colonel Alexander S. 
     Vindman Before the H. Permanent Select Comm. on Intelligence 
     16 (Oct. 29, 2019) (Vindman Dep. Tr.); Anton Troianovski, 
     Comedian Volodymyr Zelensky Unseats Incumbent in Ukraine's 
     Presidential Election, Exit Polls Show, Wash. Post (Apr. 21, 
     2019), https://perma.cc/J8KE-2UJU.
       4. Id.
       5. See White House, Memorandum of Telephone Conversation 
     (Apr. 21, 2019) (Apr. 21 Memorandum), https://perma.cc/EY4N-
 B8VS; Deb Riechmann et al., Conflicting White House Accounts 
     of 1st Trump-Zelenskiy Call, Associated Press (Nov. 15, 
     2019), https://perma.cc/A6U9-89ZG.
       6. Apr. 21 Memorandum at 2, https://perma.cc/EY4N-B8VS.
       7. Transcript, Impeachment Inquiry: Ambassador William B. 
     Taylor and George Kent: Hearing Before the H.Permanent Select 
     Comm. on Intelligence, 116th Cong. 40 (Nov. 13, 2019) 
     (Taylor-Kent Hearing Tr.).
       8. See, e.g., Transcript, Interview of Kurt Volker Before 
     the H. Permanent Select Comm. on Intelligence 58-59 (Oct. 3, 
     2019) (Volker Interview Tr.); Transcript, Interview of George 
     Kent Before the H. Permanent Select Comm. on Intelligence 202 
     (Oct. 15, 2019) (Kent Dep. Tr.); Transcript, Deposition of 
     Fiona Hill Before the H. Permanent Select Comm. on 
     Intelligence 64-65 (Oct. 14, 2019) (Hill Dep. Tr.); see also 
     Transcript, Deposition of David A. Holmes Before the H. 
     Permanent Select Comm. on Intelligence 18 (Nov. 15, 2019) 
     (Holmes Dep. Tr.) (``[A] White House visit was critical to 
     President Zelensky,'' because ``[h]e needed to demonstrate 
     U.S. support at the highest levels, both to advance his 
     ambitious anti-corruption agenda at home and to encourage 
     Russian President Putin to take seriously President 
     Zelensky's peace efforts.'').
       9. Transcript, Deposition of Jennifer Williams Before the 
     H. Permanent Select Comm. on Intelligence 36-37 (Nov. 7, 
     2019) (Williams Dep. Tr.).
       10. Matt Viser, Joe Biden to Enter 2020 Presidential Race 
     with Thursday Video Announcement, Wash. Post (Apr. 23, 2019), 
     https://perma.cc/M2B9-6J48.
       11. Transcript, Impeachment Inquiry: Ambassador Marie 
     ``Masha'' Yovanovitch: Hearing

[[Page S308]]

     Before the H. Permanent Select Comm. on Intelligence, 116th 
     Cong. 21-22 (Nov. 15, 2019) (Yovanovitch Hearing Tr.); 
     Transcript, Impeachment Inquiry: Fiona Hill and David Holmes: 
     Hearing Before the H. Permanent Select Comm. on Intelligence, 
     116th Cong. 18-19 (Nov. 21, 2019) (Hill-Holmes Hearing Tr.); 
     Holmes Dep. Tr. at 13-14, 142.
       12. See, e.g., Taylor-Kent Hearing Tr. at 25; Yovanovitch 
     Hearing Tr. at 21-22; Hill-Holmes Hearing Tr. at 19-21.
       13. See, e.g., Donald J. Trump (@realDonaldTrump), Twitter 
     (Mar. 20, 2019, 7:40 PM), https://perma.cc/D4UT-5M6F 
     (referencing Sean Hannity's interview with John Solomon 
     regarding his opinion piece in The Hill titled As Russia 
     Collusion Fades, Ukrainian Plot to Help Clinton Emerges (Mar. 
     20, 2019), https://perma.cc/2M35-LUQE).
       14. Yovanovitch Hearing Tr. at 21-22, 34-35.
       15. Adam Entous, The Ukrainian Prosecutor Behind Trump's 
     Impeachment, New Yorker (Dec. 16, 2019), https://perma.cc/
5XMR-BS8L (quoting Mr. Giuliani).
       16. See White House, Memorandum of Telephone Conversation  
     4 (July 25, 2019) (July 25 Memorandum), https://perma.cc/
8JRD-6K9V; Kyle Cheney, ``Of Course I Did'': Giuliani 
     Acknowledges Asking Ukraine to Investigate Biden, Politico 
     (Sept. 19, 2019), https://perma.cc/J7PY-N3SG.
       17. July 25 Memorandum at 3, https://perma.cc/8JRD-6K9V; 
     see also Remarks by President Trump and President Putin of 
     the Russian Federation in Joint Press Conference, White House 
     (July 16, 2018), https://perma.cc/6M5R-XW7F (``[A]ll I can do 
     is ask the question. My people came to me, Dan Coates came to 
     me and some others--they said they think it's Russia. I have 
     President Putin; he just said it's not Russia. I will say 
     this: I don't see any reason why it would be, but I really do 
     want to see the server.''); Transcript of AP Interview with 
     Trump, Associated Press (Apr. 23, 2017), https://perma.cc/
2EFT-84N8 (``TRUMP: . . . Why wouldn't (former Hillary 
     Clinton campaign chairman John) Podesta and Hillary Clinton 
     allow the FBI to see the server? They brought in another 
     company that I hear is Ukrainian-based. AP: CrowdStrike? 
     TRUMP: That's what I heard. I heard it's owned by a very rich 
     Ukrainian, that's what I heard.'').
       18. See, e.g., Volker Interview Tr. at 203.
       19. See, e.g., Press Release, Senator Rob Portman, Portman, 
     Durbin, Shaheen, and Senate Ukraine Caucus Reaffirm 
     Commitment to Help Ukraine Take on Corruption (Feb. 12, 
     2016), https://perma.cc/9WD2-CZ29 (quoting bipartisan letter 
     urging then-President Poroshenko of Ukraine ``to press ahead 
     with urgent reforms to the Prosecutor General's office and 
     judiciary'').
       20. See, e.g., Kent Dep. Tr. at 45, 91-94 (describing ``a 
     broad-based consensus'' among the United States, European 
     allies, and international financial institutions that Mr. 
     Shokin was ``a typical Ukraine prosecutor who lived a 
     lifestyle far in excess of his government salary, who never 
     prosecuted anybody known for having committed a crime'' and 
     who ``covered up crimes that were known to have been 
     committed.''); Daryna Krasnolutska et al., Ukraine Prosecutor 
     Says No Evidence of Wrongdoing by Bidens, Bloomberg (May 16, 
     2019), https://perma.cc/YYX8-U33C (quoting Yuriy Lutsenko, 
     Ukraine's then-Prosecutor General: ``Hunter Biden did not 
     violate any Ukrainian laws--at least as of now, we do not see 
     any wrongdoing. A company can pay however much it wants to 
     its board . . . . Biden was definitely not involved . . . . 
     We do not have any grounds to think that there was any 
     wrongdoing starting from 2014 [when Hunter Biden joined the 
     board of Burisma].'').
       21. See Kent Dep. Tr. at 45, 93-94; Volker Interview Tr. at 
     36-37, 330, 355.
       22. See Kent Dep. Tr. at 101-02.
       23. Office of the Dir. of Nat'l Intelligence, ICA 2017-01D, 
     Assessing Russian Activities and Intentions in Recent U.S. 
     Elections (Jan. 6, 2017), https://perma.cc/M4A3-DWML; see, 
     e.g., id. at ii (``We assess Russian President Vladimir Putin 
     ordered an influence campaign in 2016 aimed at the US 
     presidential election. Russia's goals were to undermine 
     public faith in the US democratic process, denigrate 
     Secretary Clinton, and harm her electability and potential 
     presidency. We further assess Putin and the Russian 
     Government developed a clear preference for President-elect 
     Trump. We have high confidence in these judgements.'').
       24. Senate Select Comm. on Intelligence, Russian Active 
     Measures Campaigns and Interference in the 2016 U.S. 
     Election, Vol. II (May 8, 2018), https://perma.cc/96EC-22RU; 
     see, e.g., id. at 4-5 (``The Committee found that the 
     [Russian-based Internet Research Agency (IRA)] sought to 
     influence the 2016 U.S. presidential election by harming 
     Hillary Clinton's chances of success and supporting Donald 
     Trump at the direction of the Kremlin. . . . The Committee 
     found that the Russian government tasked and supported the 
     IRA's interference in the 2016 U.S. election.'').
       25. Robert S. Mueller III, Report on the Investigation into 
     Russian Interference in the 2016 Presidential Election, Vol. 
     I at 1 (2019) (Mueller Report), https://perma.cc/DN3N-9UW8.
       26. Luke Barr & Alexander Mallin, FBI Director Pushes Back 
     on Debunked Conspiracy Theory About 2016 Election 
     Interference, ABC News (Dec. 9, 2019), https://perma.cc/8JKC-
 6RB8 (quoting Mr. Wray).
       27. Hill-Holmes Hearing Tr. at 40-41, 56-57.
       28. Press Statement, President of Russ., Joint News 
     Conference with Hungarian Prime Minister Viktor Orban (Feb. 
     2, 2017), https://perma.cc/5Z2R-ZECB (``[A]s we all know, 
     during the presidential campaign in the United States, the 
     Ukrainian government adopted a unilateral position in favour 
     of one candidate. More than that, certain oligarchs, 
     certainly with the approval of the political leadership, 
     funded this candidate, or female candidate, to be more 
     precise.'').
       29. See Kent Dep. Tr. at 338; @realDonaldTrump (May 3, 
     2019, 10:06 AM) https://perma.cc/7LS9-P35U.
       30. Hill Dep. Tr. at 234; see also id. at 235.
       31. Chris Francescani, President Trump's Former National 
     Security Advisor ``Deeply Disturbed'' by Ukraine Scandal: 
     ``Whole World Is Watching,'' ABC News (Sept. 29, 2019), 
     https://perma.cc/C76K-7SMA (quoting Mr. Bossert).
       32. Full Video: Sean Hannity Interviews Trump on Biden, 
     Russia Probe, FISA Abuse, Comey, Real Clear Politics (Apr. 
     26, 2019), https://perma.cc/3CLR-9MVA.
       33. Transcript: Fox News Interview with President Trump, 
     Fox News (May 6, 2019), https://perma.cc/NST6-X7WS.
       34. Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to 
     Push for Inquiries That Could Help Trump, N.Y. Times (May 9, 
     2019) (Giuliani Plans Ukraine Trip), https://perma.cc/SC6J-
 4PL9.
       35. Id. (quoting Mr. Giuliani).
       36. Id. (quoting Mr. Giuliani).
       37. Lev Parnas Production to the House Permanent Select 
     Comm. on Intelligence at 28 (Jan. 14, 2019), https://
perma.cc/PWX4-LEMS (letter from Rudolph Giuliani to Volodymyr 
     Zelensky, President-elect of Ukraine (May 10, 2019)).
       38. See Andrew Restuccia & Darren Samuelsohn, Giuliani 
     Cancels Ukraine Trip amid Political Meddling Charges, 
     Politico (May 11, 2019), https://perma.cc/V5S8-2FV4.
       39. Giuliani: I Didn't Go to Ukraine to Start an 
     Investigation, There Already Was One, Fox News (May 11, 
     2019), https://perma.cc/HT7V-2ZYA.
       40. Williams Dep. Tr. at 37; Volker Interview Tr. at 288-
     90; Vindman Dep. Tr. at 125-27.
       41. Volker Interview Tr. at 29-30, 304.
       42. Id. at 305.
       43. Id. at 304; Transcript, Interview of Gordon Sondland 
     Before the H. Permanent Select Comm. on Intelligence 337 
     (Oct. 17, 2019) (Sondland Dep. Tr.).
       44. Sondland Dep. Tr. at 62, 69-70; Volker Interview Tr. at 
     305; Transcript, Impeachment Inquiry: Ambassador Kurt Volker 
     and Timothy Morrison: Hearing Before the H. Permanent Select 
     Comm. on Intelligence, 116th Cong. 39-40 (Nov. 19, 2019) 
     (Volker-Morrison Hearing Tr.).
       45. Sondland Dep. Tr. at 90.
       46. See id. at 77-78; Volker-Morrison Hearing Tr. at 17, 
     19; see also Timothy Puko & Rebecca Ballhaus, Rick Perry 
     Called Rudy Giuliani at Trump's Direction on Ukraine 
     Concerns, Wall Street J. (Oct. 16, 2019) (Rick Perry Called 
     Rudy Giuliani), https://perma.cc/E4F2-9U23.25.
       47. Giuliani Plans Ukraine Trip, https://perma.cc/SC6J-
 4PL9.
       48. See, e.g., Transcript, Impeachment Inquiry: Ambassador 
     Sondland: Hearing Before the H. Permanent Select Comm. on 
     Intelligence, 116th Cong. 18 (Nov. 20, 2019) (Sondland 
     Hearing Tr.) (``[A]s I testified previously . . . Mr. 
     Giuliani's requests were a quid pro quo for arranging a White 
     House visit for President Zelensky''); id. at 34, 42-43.
       49. Transcript, Deposition of William B. Taylor Before the 
     H. Permanent Select Comm. on Intelligence (Oct. 22, 2019) 
     (Taylor Dep. Tr.).
       50. Taylor-Kent Hearing Tr. at 34-36.
       51. Sondland Dep. Tr. at 240.
       52. Hill Dep. Tr. at 127 (Dr. Hill, quoting Mr. Bolton).
       53. See Taylor Dep. Tr. at 20, 23, 27-28, 31, 33-34; 
     Transcript, Deposition of Ambassador Marie ``Masha'' 
     Yovanovitch Before the H. Permanent Select Comm. on 
     Intelligence 16, 18, 73, 302 (Oct. 11, 2019) (Yovanovitch 
     Dep. Tr.); see also Conflilct in Ukraine Enters Its Fourth 
     Year with No End in Sight, Office of the U.N. High Comm'r for 
     Human Rights (June 13, 2017), https://perma.cc/K9N8-F22E.
       54. Taylor-Kent Hearing Tr. at 28.
       55. Volker Interview Tr. at 329; see Yovanovitch Hearing 
     Tr. at 17-18; Volker-Morrison Hearing Tr. at 11.
       56. Transcript, Deposition of Catherine Croft Before the H. 
     Permanent Select Comm. on Intelligence 16 (Oct. 30, 2019) 
     (Croft Dep. Tr.).
       57. Kent Dep. Tr. at 338-39.
       58. Viacheslav Shramovych, Ukraine's Deadliest Day: The 
     Battle of Ilovaisk, August 2014, BBC News (Aug. 29, 2019), 
     https://perma.cc/6B2F-B72W.
       59. See Transcript, Deposition of Laura Katherine Cooper 
     Before the H. Permanent Select Comm. on Intelligence 16, 38, 
     98 (Oct. 23, 2019) (Cooper Dep. Tr.); Vindman Dep. Tr. at 41, 
     57, 165; Transcript, Deposition of Mark Sandy Before the H. 
     Permanent Select Comm. on Intelligence 59-60 (Nov. 16, 2019) 
     (Sandy Dep. Tr.); Taylor-Kent Hearing Tr. at 29-30; Taylor 
     Dep. Tr. at 38, 40-41, 171, 217-18, 281-82; Letter from 
     Senators Jeanne Shaheen et al. to Acting White House Chief of 
     Staff Mick Mulvaney (Sept. 3, 2019) (Sept. 3 Letter), https:/
     /perma.cc/4TU8-H7UR; Letter from Senator Christopher Murphy 
     to Chairman Adam B. Schiff, House Permanent Select Comm. on 
     Intelligence, and Acting Chairwoman Carolyn Maloney, House 
     Comm. on Oversight and Reform (Nov. 19, 2019) (Nov. 19 
     Letter), https://perma.cc/4BDP-2SRJ.
       60. Cory Welt, Cong. Research Serv., R45008, Ukraine: 
     Background, Conflict with Russia, and U.S. Policy 30 (Sept. 
     19, 2019), https://perma.cc/4HCR-VKA5; see also Hill-Holmes 
     Hearing Tr. at 97 (testimony of David Holmes) (``The United 
     States has provided combined civilian and military assistance 
     to Ukraine since 2014 of about $3 billion,

[[Page S309]]

     plus two $1 billion--three $1 billion loan guarantees. That 
     is not--those get paid back largely. So just over $3 
     billion.'').
       61. Taylor Dep. Tr. at 153.
       62. Yovanovitch Hearing Tr. at 18.
       63. Volker-Morrison Hearing Tr. at 11.
       64. Iain King, Not Contributing Enough? A Summary of 
     European Military and Development Assistance to Ukraine Since 
     2014, Ctr. for Strategic & Int'l Stud. (Sept. 26, 2019), 
     https://perma.cc/FF6F-Q9MX.
       65. EU-Ukraine Relations--Factsheet, European External 
     Action Serv. (Sept. 30, 2019), https://perma.cc/4YKE-T2WT.
       66. Id.
       67. See EU Aid Explorer: Donors, European Comm'n, https://
perma.cc/79H6-AFHY.
       68. U.S. Foreign Aid by Country, USAID, https://perma.cc/
9YK2-9BKJ (last updated Sept. 23, 2019) (Ukraine data for 
     fiscal year 2017 and fiscal year 2018).
       69. Transcript, Impeachment Inquiry: Ms. Laura Cooper and 
     Mr. David Hale: Hearing Before the H. Permanent Select Comm. 
     on Intelligence, 116th Cong. 22-23 (Nov. 20, 2019) (Cooper-
     Hale Hearing Tr.); Cooper Dep. Tr. at 95-96.
       70. Department of Defense and Labor, Health and Human 
     Services, and Education Appropriations Act, 2019 and 
     Continuing Appropriations Act, 2019, Pub. L. No. 115-245, 
     Sec. 9013 (2018); Consolidated Appropriations Act, 2019, Pub. 
     L. No. 116-6, Sec. 7046(a)(2) (2019); Conference Report to 
     Accompany H.J. Res. 31, H. Rep. No. 116-9, at 869 (2019) 
     (allocating $115,000,000 in assistance to Ukraine for the 
     Foreign Military Financing Program); Aaron Mehta, U.S. State 
     Department Clears Ukraine Security Assistance Funding. Is the 
     Pentagon Next?, Def. News (Sept. 12, 2019), https://perma.cc/
723T-9XUN (noting that approximately $26 million rolled over 
     from fiscal year 2018).
       71. Press Release, Dep't of Def., DOD Announces $250M to 
     Ukraine, (June 18, 2019) (DOD Announces $250M to Ukraine), 
     https://perma.cc/U4HX-ZKXP.
       72. Pub. L. No. 115-245, Sec. 9013.
       73. DOD Announces $250M to Ukraine, https://perma.cc/U4HX-
 ZKXP. DOD had certified in May 2019 that Ukraine satisfied 
     all anti-corruption standards needed to receive the 
     Congressionally appropriated military aid. See Letter from 
     John C. Rood, Under Sec'y of Def. for Pol'y, Dep't of Def., 
     to Chairman Eliot L. Engel, House Comm. on Foreign Affairs 
     (May 23, 2019), https://perma.cc/68FS-ZXZ6 (``Ukraine has 
     taken substantial actions to make defense institutional 
     reforms for the purposes of decreasing corruption. . . . 
     [N]ow that this defense institution reform has occurred, we 
     will use the authority provided . . . to support programs in 
     Ukraine further.'').
       74. Sandy Dep. Tr. at 24-25; Cooper Dep. Tr. at 33-34.
       75. Sandy Dep. Tr. at 24-28.
       76. Eric Lipton et al., Behind the Ukraine Aid Freeze: 84 
     Days of Conflict and Confusion, N.Y. Times (Dec. 29, 2019) 
     (Behind the Ukraine Aid Freeze), https://perma.cc/TA5J-NJFX.
       77. See, e.g., Cooper Dep. Tr. at 13, 16, 32, 46, 60-62, 
     64-65; Taylor Dep. Tr. at 28, 132, 170.
       78. See Nov. 19 Letter, https://perma.cc/4BDP-2SRJ; Sept. 3 
     Letter, https://perma.cc/4TU8-H7UR.
       79. Williams Dep. Tr. at 54; Croft Dep. Tr. at 15; Kent 
     Dep. Tr. at 303-305; Transcript, Deposition of Ambassador 
     David Maclain Hale Before the H. Permanent Select Comm. on 
     Intelligence 81 (Oct. 31, 2019) (Hale Dep. Tr.); Sandy Dep. 
     Tr. at 99; Vindman Dep. Tr. at 181-82; Transcript, Deposition 
     of Ambassador Tim Morrison Before the H. Permanent Select 
     Comm. on Intelligence 264 (Nov. 6, 2019) (Morrison Dep. Tr.).
       80. Cooper-Hale Hearing Tr. at 14; Vindman Dep. Tr. at 178-
     79; see also Stalled Ukraine Military Aid Concerned Members 
     of Congress for Months, CNN (Sept. 30, 2019), https://
perma.cc/5CHF-HFKJ; Sandy Dep. Tr. at 38-39 (describing July 
     12 email from White House to OMB stating ``that the President 
     is directing a hold on military support funding for 
     Ukraine.'').
       81. See Sandy Dep. Tr. at 90; Hill Dep. Tr. at 225; Taylor-
     Kent Hearing Tr. at 35; Vindman Dep. Tr. at 181; Holmes Dep. 
     Tr. at 153-54.
       82. Taylor-Kent Hearing Tr. at 35; Hill Dep. Tr. at 225.
       83. Email from Michael Duffey, Assoc. Dir. for Nat'l Sec. 
     Programs, Office of Mgmt. & Budget, to David Norquist et al. 
     (July 25, 2019, 11:04 AM), https://perma.cc/PG93-3M6B.
       84. Id.
       85. Kent Dep. Tr. at 303, 307, 311; Taylor-Kent Hearing Tr. 
     at 36; Vindman Dep. Tr. at 182-85, Cooper Dep. Tr. at 45.
       86. Kent Dep. Tr. at 303-305; Hale Dep. Tr. at 81.
       87. Croft Dep. Tr. at 15; Hale Dep. Tr. at 105; Holmes Dep. 
     Tr. at 21; Kent Dep. Tr. at 304, 310; Cooper Dep. Tr. at 44-
     45; Sandy Dep. Tr. at 91, 97; Morrison Dep. Tr. at 162-63. 
     Mr. Morrison testified that, during a Deputies Committee 
     meeting on July 26, OMB stated that the ``President was 
     concerned about corruption in Ukraine, and he wanted to make 
     sure that Ukraine was doing enough to manage that 
     corruption.'' Morrison Dep. Tr. at 165. Mr. Morrison did not 
     testify that concerns about Europe's contributions were 
     raised during this meeting. In addition, Mark Sandy testified 
     that, as of July 26, despite OMB's own statement, senior OMB 
     officials were unaware of the reason for the hold at that 
     time. See Sandy Dep. Tr. at 55-56.
       88. Sandy Dep. Tr. at 99; Vindman Dep. Tr. at 181-82; Kent 
     Dep. Tr. at 305; Morrison Dep. Tr. at 264.
       89. Morrison Dep. Tr. at 163; Cooper Dep. Tr. at 47-48. For 
     example, Deputy Assistant Secretary of Defense Laura Cooper 
     testified that, during an interagency meeting on July 26 
     involving senior leadership from the State Department and DOD 
     and officials from the National Security Council, 
     ``immediately deputies began to raise concerns about how this 
     could be done in a legal fashion'' and there ``was a sense 
     that there was not an available mechanism to simply not spend 
     money'' that already had been notified to Congress or 
     earmarked for Ukraine. Cooper Dep. Tr. at 47-48.
       90. Sandy Dep. Tr. at 42-43.
       91. Cooper-Hale Hearing Tr. at 75-76.
       92. Cooper Dep. Tr. at 91.
       93. Sondland Dep. Tr. at 338-39.
       94. Sandy Dep. Tr. at 149-55.
       95. Josh Dawsey et al., White House Review Turns Up Emails 
     Showing Extensive Efforts to Justify Trump's Decision to 
     Block Ukraine Military Aid, Wash. Post (Nov. 24, 2019), 
     https://perma.cc/99TX-5KFE. Because the President obstructed 
     the House's investigation, the House was unable to obtain 
     documents to confirm this reporting.
       96. See Sandy Dep. Tr. at 75; Kate Brannen, Exclusive: 
     Unredacted Ukraine Documents Reveal Extent of Pentagon's 
     Legal Concerns, Just Security (Jan. 2, 2020) (Just Security 
     Report), https://perma.cc/VA6U-RYPK (reporting about review 
     of unredacted copies of OMB documents that were produced to 
     the Center for Public Integrity in redacted form).
       97. Matter of Office of Mgmt. & Budget--Withholding of 
     Ukraine Sec. Assistance, B-331564 (Comp. Gen. Jan. 16, 2020), 
     https://perma.cc/5CDX-XLX6.
       98. See Behind the Ukraine Aid Freeze, https://perma.cc/
TA5J-NJFX.
       99. See Just Security Report, https://perma.cc/VA6U-RYPK 
     (quoting email from Michael Duffey to Elaine McCusker).
       100. See, e.g., Sandy Dep. Tr. at 133 (``[W]ere we ever 
     given any reason for the hold? And I would say only in 
     September did we receive an explanation that the hold--that 
     the President's direction reflected his concerns about the 
     contributions from other countries for Ukraine.''); Cooper 
     Dep. Tr. at 93-94; Vindman Dep. Tr. at 181-82; Williams Dep. 
     at 91-92.
       101. Taylor Dep. Tr. at 24-25 (``In late June, one of the 
     goals of both channels was to facilitate a visit by President 
     Zelensky to the White House for a meeting with President 
     Trump, which President Trump had promised in his 
     congratulatory letter of May 29. [The] Ukrainians were 
     clearly eager for the meeting to happen. During a conference 
     call with Ambassador Volker, Acting Assistant Secretary of 
     State for European and Eurasian Affairs Phil Reeker, 
     Secretary Perry, Ambassador Sondland, and Counselor of the 
     U.S. Department of State Ulrich Brechbuhl on June 18, it was 
     clear that a meeting between the two presidents was an 
     agreed-on--agreed-upon goal.'').
       102. Volker Interview Tr. at 59, 328.
       103. Id.
       104. Taylor Dep. Tr. at 26.
       105. Sondland Hearing Tr. at 26.
       106. Id. at 43.
       107. Kurt Volker Text Messages Received by the House 
     Committees at KV00000027 (Oct. 2, 2019) (Volker Text 
     Messages), https://perma.cc/CG7Y-FHXZ.
       108. Taylor Dep. Tr. at 65-66.
       109. Volker-Morrison Hearing Tr. at 70.
       110. Kent Dep. Tr. at 246-47.
       111. Hill Dep. Tr. at 67.
       112. Id. at 69.
       113. Vindman Dep. Tr. at 64.
       114. Id. at 69-70; Vindman Dep. Tr. at 31; see Hill-Holmes 
     Hearing Tr. at 92.
       115. Hill Dep. Tr. at 70-72.
       116. Id. at 139 (``I told him exactly, you know, what had 
     transpired and that Ambassador Sondland had basically 
     indicated that there was an agreement with the Chief of Staff 
     that they would have a White House meeting or, you know, a 
     Presidential meeting if the Ukrainians started up these 
     investigations again.''); Vindman Dep. Tr. at 37 (``Sir, I 
     think I--I mean, the top line I just offered, I'll restate 
     it, which is that Mr. Sondland asked for investigations, for 
     these investigations into Bidens and Burisma. I actually 
     recall having that particular conversation. Mr. Eisenberg 
     doesn't really work on this issue, so I had to go a little 
     bit into the back story of what these investigations were, 
     and that I expressed concerns and thought it was 
     inappropriate.''). A third NSC official, P. Wells Griffith, 
     also reported the July 10 meeting to the NSC Legal Advisor, 
     but he refused to comply with a subpoena and did not testify 
     before the House.
       117. Volker Text Messages at KV00000018.
       118. See, e.g., id. at KV00000037; Ambassador Gordon D. 
     Sondland, Opening Statement Before the U.S. House of 
     Representatives Permanent Select Comm. on Intelligence 15 
     (Nov. 20, 2019) (Sondland Opening Statement), https://
perma.cc/Z2W6-A9HS (``As I communicated to the team, I told 
     President Zelensky in advance that assurances to run a fully 
     transparent investigation and turn over every stone were 
     necessary in his call with President Trump.'').
       119. Volker Text Messages at KV00000037.
       120. Taylor-Kent Hearing Tr. at 37-38 (Ambassador Taylor 
     quoting Ambassador Sondland).
       121. Sondland Hearing Tr. at 27; Sondland Opening Statement 
     at 21, Ex. 4.
       122. Sondland Opening Statement at 21, Ex. 4.
       123. Sondland Hearing Tr. at 27.
       124. Taylor Dep. Tr. at 30.
       125. Volker Text Messages at KV00000037.

[[Page S310]]

       126 See, e.g., id. at KV00000019; July 25 Memorandum at 3-
     4, https://perma.cc/8JRD-6K9V.
       127. See, e.g., Washington Post-ABC News Poll, June 28-July 
     1, 2019, Wash. Post (July 11, 2019), https://perma.cc/NS4B-
 PRWC.
       128. Sondland Hearing Tr. at 53-54.
       129. Volker Text Messages at KV00000019.
       130. Sondland Hearing Tr. at 53-55.
       131. See July 25 Memorandum at 2, https://perma.cc/8JRD-
 6K9V.
       132. Id. at 3-4. President Trump continues to embrace this 
     call as both ``routine'' and ``perfect.'' See, e.g., Remarks 
     by President Trump upon Arriving at the U.N. General 
     Assembly, White House (Sept. 24, 2019) (Trump Sept. 24 
     Remarks), https://perma.cc/ZQ4P-FGT4; Colby Itkowitz, Trump 
     Defends Call with Ukrainian President, Calling It ``Perfectly 
     Fine and Routine,'' Wash. Post (Sept. 21, 2019), https://
perma.cc/T3ZM-GKLB.
       133. See July 25 Memorandum at 4-5, https://perma.cc/8JRD-
 6K9V.
       134. Id. at 4.
       135. Id.
       136. Id. at 3, 5.
       137. See id. at 2.
       138. See generally id. Mr. Trump had previously engaged in 
     efforts to cut aid to anti-corruption programs in Ukraine and 
     other foreign nations. See Erica Werner, Trump Administration 
     Sought Billions of Dollars in Cuts to Programs Aimed at 
     Fighting Corruption in Ukraine and Elsewhere, Wash. Post 
     (Oct. 23, 2019), https://perma.cc/R9AJ-AZ65.
       139. Transcript, Impeachment Inquiry: Ms. Jennifer Williams 
     and Lieutenant Colonel Alexander Vindman: Hearing Before the 
     H. Permanent Select Comm. on Intelligence, 116th Cong. 19 
     (Nov. 19, 2019) (Vindman-Williams Hearing Tr.).
       140. Id. at 34; Williams Dep. Tr. at 148-49.
       141. Vindman-Williams Hearing Tr. at 15.
       142. Morrison Dep. Tr. at 41.
       143 Id. at 43.
       144. Id. at 43, 47-50, 52; see also Vindman Dep. Tr. at 49-
     51, 119-22.
       145. Holmes Dep. Tr. at 24.
       146. Sondland Hearing Tr. at 26-27.
       147. Holmes Dep. Tr. at 25-26.
       148. See, e.g., Cooper-Hale Hearing Tr. at 13-14; Vindman 
     Dep. Tr. at 222; Sandy Dep. Tr. at 59-60.
       149. Cooper-Hale Hearing Tr. at 13-14.
       150. Croft Dep. Tr. at 86-88.
       151. Vindman Dep. Tr. at 222.
       152. Andrew E. Kramer, Ukraine Knew of Aid Freeze in July, 
     Says Ex-Top Official in Kyiv, N.Y. Times (Dec. 3, 2019), 
     https://perma.cc/SD98-VPRN.
       153. Id. (quoting Ms. Zerkal).
       154. Id. (quoting Ms. Zerkal's summary of a statement by 
     Mr. Yermak).
       155. Volker Text Messages at KV00000019.
       156. Sondland Opening Statement at 22, Ex. 7; Sondland 
     Hearing Tr. at 28, 102.
       157. Volker Text Messages at KV00000020.
       158. Volker Interview Tr. at 113.
       159. Sondland Hearing Tr. at 18.
       160. Volker Text Messages at KV00000023. Ambassador Volker 
     claimed that he ``stopped pursuing'' the statement from the 
     Ukrainians around this time because of concerns raised by Mr. 
     Yermak. Ambassador Kurt Volker, Testimony Before the House of 
     Representatives Committee on Foreign Affairs, Permanent 
     Select Committee on Intelligence, and Committee on Oversight 
     8 (Oct. 3, 2019) (Volker Opening Statement), https://
perma.cc/9DDN-2WFW; Volker Interview Tr. at 44-45, 199; 
     Volker-Morrison Hearing Tr. at 21.
       161. See, e.g., Sondland Opening Statement at 16 (``[M]y 
     goal, at the time, was to do what was necessary to get the 
     aid released, to break the logjam. I believed that the public 
     statement we had been discussing for weeks was essential to 
     advancing that goal.'').
       162. Hale Dep. Tr. at 81; Vindman Dep. Tr. at 184.
       163. Sandy Dep. Tr. at 59-60.
       164. Sondland Hearing Tr. at 56-58; see also Taylor Dep. 
     Tr. at 190 (Ambassador Taylor's ``clear understanding'' was 
     that ``security assistance money would not come until the 
     [Ukrainian] President committed to pursue the 
     investigation''); Hill-Holmes Hearing Tr. at 32 (Mr. Holmes's 
     ``clear impression was that the security assistance hold was 
     likely intended by the President either as an expression of 
     dissatisfaction with the Ukrainians, who had not yet agreed 
     to the Burisma/Biden investigation, or as an effort to 
     increase the pressure on them to do so.'').
       165. Sondland Opening Statement at 23.
       166. Caitlin Emma & Connor O'Brien, Trump Holds Up Ukraine 
     Military Aid Meant to Confront Russia, Politico (Aug. 28, 
     2019), https://perma.cc/54RZ-Q6NJ.104.
       167. Volker Text Messages at KV00000020; Volker Interview 
     Tr. at 80-81; Taylor Dep. Tr. at 34.
       168. Taylor Dep. Tr. at 137-38.
       169. Roman Olearchyk, Cleaning Up Ukraine in the Shadow of 
     Trump, Fin. Times (Nov. 28, 2019), https://perma.cc/YMX9-XJ2B 
     (quoting current Ukrainian Prosecutor General Ruslan 
     Ryaboshapka).
       170. Behind the Ukraine Aid Freeze, https://perma.cc/TA5J-
 NJFX.
       171. Readout of Vice President Mike Pence's Meeting with 
     Ukrainian President Volodymyr Zelensky, White House (Sep. 1, 
     2019), https://perma.cc/K2PH-YPVK; Taylor-Kent Hearing Tr. at 
     41.
       172. Sondland Hearing Tr. at 30.
       173. Id. at 38.
       174. Williams Dep. Tr. at 81.
       175. Id. at 82.
       176. Id. at 82-83.
       177. Id. at 94.
       178. Sondland Hearing Tr. at 31.
       179. Morrison Dep. Tr. at 134.
       180. Id. at 182-83.
       181. Taylor-Kent Hearing Tr. at 42.
       182. Volker Text Messages at KV00000039.
       183. Taylor-Kent Hearing Tr. at 42.
       184. Id.; see also Taylor Dep. Tr. at 144.
       185. In Ambassador Sondland's testimony, he was not clear 
     on whether he had one or two conversations with the President 
     in which the subject of a quid pro quo came up, or on 
     precisely which date such conversations took place during the 
     period of September 6 through 9. Regardless of the date, 
     Ambassador Sondland did not contest telling both Mr. Morrison 
     and Ambassador Taylor--both of whom took contemporaneous 
     notes--of a conversation he had with the President that 
     reaffirmed Ambassador Sondland's understanding that President 
     Zelensky had to make a public statement announcing the 
     investigations in order to obtain the White House meeting and 
     security assistance. See Sondland Hearing Tr. at 109. Both 
     documentary evidence and testimony confirmed that the 
     conversation described by Mr. Morrison and Ambassador Taylor 
     occurred on September 7. See, e.g., Morrison Dep. Tr. at 144-
     45; Taylor Dep. Tr. at 38; Volker Text Messages at KV00000053 
     (Sondland text message to Volker and Taylor on September 8 
     stating, ``Guys, multiple convos with Ze, Potus. Lets 
     talk'').
       186. Morrison Dep. Tr. at 190-91.
       187. Id. at 145.
       188. Id. at 223, 238.
       189. Taylor-Kent Hearing Tr. at 44.
       190. Sondland Hearing Tr. at 7; Taylor Dep. Tr. at 39.
       191. Volker Text Messages at KV00000053.
       192. Sondland Hearing Tr. at 110-11; Andrew E. Kramer, 
     Ukraine's Zelensky Bowed to Trump's Demands until Luck Spared 
     Him, N.Y. Times (Nov. 7, 2019), https://perma.cc/A5JE-N25L; 
     Fareed Zakaria, Zelensky Planned to Announce Trump's ``Quo'' 
     on My Show. Here's What Happened., Wash. Post (Nov. 14, 2019) 
     (Zelensky Planned to Announce Trump's ``Quo''), https://
perma.cc/MMT7-D8XJ.
       193. Press Briefing by Acting Chief of Staff Mick Mulvaney, 
     White House (Oct. 17, 2019) (Oct. 17 Briefing), https://
perma.cc/Q45H-EMC7 (``Q. So the demand for an investigation 
     into the Democrats was part of the reason that he ordered to 
     withhold funding to Ukraine? MR. MULVANEY: The look back to 
     what happened in 2016--Q. The investigation into Democrats. 
     MR. MULVANEY:--certainly was part of the thing that he was 
     worried about in corruption with that nation. And that is 
     absolutely appropriate. Q. And withholding the funding? MR. 
     MULVANEY: Yeah. Which ultimately, then, flowed.'').
       194. Id.
       195. Volker-Morrison Hearing Tr. at 146-47 (Mr. Morrison 
     did not follow up on the President's request to ``investigate 
     the Bidens'' because he ``did not understand it as a policy 
     objective''); Vindman-Williams Hearing Tr. at 119 (Mr. 
     Vindman confirmed that he was not ``aware of any written 
     product'' from the NSC suggesting that these investigations 
     were ``part of the official policy of the United States''); 
     Taylor-Kent Hearing Tr. at 179 (``Mrs. Demings[:] Was Mr. 
     Giuliani promoting U.S. national interests or policy in 
     Ukraine . . . ? Ambassador Taylor[:] I don't think so, ma'am. 
     . . . Mr. Kent[:] No, he was not.'').
       196. Hill-Holmes Hearing Tr. at 92.
       197. Taylor-Kent Hearing Tr. at 24.
       198. Volker Interview Tr. at 197.
       199. Morgan Chalfant & Brett Samuels, White House Memo 
     Shows Trump Pressed Ukraine Leader to Look into Biden, Hill 
     (Sept. 25, 2019), https://perma.cc/5LHW-V4EB (quoting DOJ 
     spokesperson Kerri Kupec).
       200. Taylor Dep. Tr. at 207-209; Taylor-Kent Hearing Tr. at 
     158 (``[A]s we've determined, as we've discussed here on 
     September 11th, just before any CNN discussion or interview, 
     the hold was released, the hold on the security assistance 
     was released.'' (quoting Ambassador Taylor)).
       201. Press Release, House Permanent Select Comm. on 
     Intelligence, Three House Committees Launch Wide-Ranging 
     Investigation into Trump-Giuliani Ukraine Scheme (Sept. 9, 
     2019) (Sept. 9 Press Release), https://perma.cc/AX4Y-PWSH.
       202. Letter from Chairman Eliot L. Engel, House Comm. on 
     Foreign Affairs, et al., to Pat A. Cipollone, Counsel to the 
     President 3-4 (Sept. 9, 2019) (Sept. 9 Letter), https://
perma.cc/R2GH-TZ9P; Letter from Chairman Eliot L. Engel, 
     House Comm. on Foreign Affairs, et al., to Michael R. Pompeo, 
     Sec'y, Dep't of State (Sept. 9, 2019), https://perma.cc/C4W4-
 UBTF.
       203. Vindman Dep. Tr. at 304.
       204. Letter from Michael K. Atkinson, Inspector Gen. of the 
     Intelligence Community, to Chairman Adam Schiff, House 
     Permanent Select Comm. on Intelligence, and Ranking Member 
     Devin Nunes, House Permanent Select Comm. on Intelligence 2 
     (Sept. 9, 2019), https://perma.cc/K78N-SMRR.
       205. Id.
       206. Maguire Hearing Tr. at 14, 19-24.
       207. Letter from Chairman Adam B. Schiff, House Permanent 
     Select Comm. on Intelligence, to Joseph Maguire, Acting Dir. 
     of Nat'l Intelligence (Sept. 10, 2019), https://perma.cc/
9X9V-G5ZN.
       208. Transcript, Whistleblower Disclosure: Hearing Before 
     the H. Permanent Select Comm. on Intelligence, 116th Cong. 
     110 (Sept. 26, 209) (testimony of Joseph Maguire, Acting 
     Dir., Nat'l Intelligence) (Maguire Hearing Tr.) (``Chairman 
     Schiff, when I received the letter from Michael Atkinson on 
     the 26th of August, he concurrently sent a letter to the 
     Office of White House Counsel asking the

[[Page S311]]

     White House counsel to control and keep any information that 
     pertained to that phone call on the 25th.'').
       209. Michael S. Schmidt et al., Trump Knew of Whistle-
     Blower Complaint When He Released Aid to Ukraine, N.Y. Times 
     (Nov. 26, 2019), https://perma.cc/7473-YFSY.
       210. See Morgan Philips, Trump Administration Lifts Hold on 
     $250M in Military Aid for Ukraine, Fox News (Sept. 12, 2019), 
     https://perma.cc/8ABM-XNPV.
       211. See, e.g., Morrison Dep. Tr. at 244; Vindman Dep. Tr. 
     at 306; Williams Dep. Tr. at 147. Mr. Sandy testified that he 
     was not aware of any other countries committing to provide 
     more financial assistance to Ukraine prior to the lifting of 
     the hold on September 11. Sandy Dep. Tr. at 180. Lt. Col. 
     Vindman similarly confirmed that none of the ``facts on the 
     ground'' changed before the President lifted the hold. 
     Vindman Dep. Tr. at 306.
       212. Sandy Dep. Tr. at 146-47; H. Rep. No. 116-335, at 474.
       213. Continuing Appropriations Act, 2020, and Health 
     Extenders Act of 2019, Pub. L. No. 116-59, Sec. 124 (2019).
       214. Molly O'Toole & Sarah D. Wire, Millions in Military 
     Aid at Center of Impeachment Hasn't Reached Ukraine, L.A. 
     Times (Dec. 12, 2019), https://perma.cc/AR26-3KY2 (citing a 
     DOD aide).
       215. Hill-Holmes Hearing Tr. at 33; Taylor-Kent Hearing Tr. 
     at 106-07; see also Zelensky Planned to Announce Trump's 
     ``Quo'', https://perma.cc/MMT7-D8XJ.
       216. Williams Dep. Tr. at 156.
       217. Classified Supp'l Submission of Jennifer Williams to 
     the House Permanent Select Comm. on Intelligence (Nov. 26, 
     2019) (describing additional details of the Vice President's 
     call with President Zelensky on September 18).
       218. Taylor-Kent Hearing Tr. at 106-07; Hill-Holmes Hearing 
     Tr. at 33.
       219. Zelensky Planned to Announce Trump's ``Quo'', https://
perma.cc/MMT7-D8XJ.
       220. Hill-Holmes Hearing Tr. at 46-47 (testimony of David 
     Holmes) (``And although the hold on the security assistance 
     may have been lifted, there were still things they wanted 
     that they weren't getting, including a meeting with the 
     President in the Oval Office. . . . And I think that 
     continues to this day.'').
       221. John Hudson & Anne Gearan, Trump Meets Russia's Top 
     Diplomat amid Scrap over Election Interference, Wash. Post 
     (Dec. 10, 2019), https://perma.cc/X5WC-LKT5; see also Philip 
     Bump, Trump Promised Zelensky a White House Meeting. More 
     Than a Dozen Other Leaders Got One Instead, Wash. Post (Dec. 
     13, 2019), https://perma.cc/4XSP-R3JB (compiling White House 
     meetings involving foreign officials since April 2019).
       222. E.g., H. Rep. No. 116-346, at 124; see also Hill-
     Holmes Hearing Tr. at 46-47.
       223. Trump Sept. 24 Remarks, https://perma.cc/ZQ4P-FGT4.
       224. Remarks by President Trump and President Zelensky of 
     Ukraine Before Bilateral Meeting, White House (Sept. 25, 
     2019) (Trump Sept. 25 Remarks), https://perma.cc/XCJ4-A67L.
       225. Trump Quotes Sondland Quoting Him: ``I Want Nothing. I 
     Want No Quid Pro Quo.,'' CBS News (Nov. 20, 2019), https://
perma.cc/X34R-QG3R.
       226. Remarks by President Trump at the Swearing-In Ceremony 
     of Secretary of Labor Eugene Scalia, White House (Sept. 30, 
     2019) (Trump Sept. 30 Remarks), https://perma.cc/R94C-5HAY.
       227. Remarks by President Trump Before Marine One 
     Departure, White House (Oct. 3, 2019) (Trump Oct. 3 Remarks), 
     https://perma.cc/WM8A-NRA2.
       228. Id.
       229. Remarks by President Trump Before Marine One 
     Departure, White House (Oct. 4, 2019) (Trump Oct. 4 Remarks), 
     https://perma.cc/C78K-NMDS.
       230. Id.
       231. See, e.g., Kenneth P. Vogel & Benjamin Novak, 
     Giuliani, Facing Scrutiny, Travels to Europe to Interview 
     Ukrainians, N.Y. Times (Dec. 4, 2019) (Giuliani, Facing 
     Scrutiny, Travels to Europe), https://perma.cc/N28V-GPAC; 
     Dana Bash & Michael Warren, Giuliani Says Trump Still 
     Supports His Dirt-Digging in Ukraine, CNN (Dec. 17, 2019) 
     (Giuliani Says Trump Still Supports His Dirt-Digging), 
     https://perma.cc/F399-B9AY.
       232. Giuliani, Facing Scrutiny, Travels to Europe, https://
perma.cc/HZ6F-E67G; David L. Stern & Robyn Dixon, Ukraine 
     Lawmaker Seeking Biden Probe Meets with Giuliani in Kyiv, 
     Wash. Post (Dec. 5, 2019) (Ukraine Lawmaker Seeking Biden 
     Probe), https://perma.cc/C3GW-RF4T; Will Sommer, Rudy's New 
     Ukraine Jaunt Is Freaking Out Trump's Lieutenants--and He 
     Doesn't Care, Daily Beast (Dec. 6, 2019) (Rudy's New Ukraine 
     Jaunt), https://perma.cc/UNR9-VWFZ.
       233. Ukraine Lawmaker Seeking Biden Probe, https://
perma.cc/W3Q2-E8QY.
       234. Philip Bump, Giuliani May Be Making a Stronger Case 
     Against Trump Than Biden, Wash. Post (Dec. 16, 2019), https:/
     /perma.cc/7HR4-TC9W; Rudy's New Ukraine Jaunt, https://
perma.cc/UNR9-VWFZ.
       235. Giuliani, Facing Scrutiny, Travels to Europe, https://
perma.cc/HZ6F-E67G.
       236. Rudy Giuliani (@RudyGiuliani), Twitter (Dec. 5, 2019, 
     1:42 PM), https://perma.cc/829X-TSKJ.
       237. Rebecca Ballhaus & Julie Bykowicz, ``Just Having 
     Fun'': Giuliani Doubles Down on Ukraine Probes, Wall Street 
     J. (Dec. 13, 2019), https://perma.cc/5B69-2AVR.
       238. David Jackson, Trump Says Rudy Giuliani Will Give 
     Information About Ukraine to Justice Department, Congress, 
     USA Today (Dec. 7, 2019), https://perma.cc/7RXJ-JG7F.
       239. Giuliani Says Trump Still Supports His Dirt-Digging, 
     https://perma.cc/F399-B9AY; see also Asawin Suebsaeng & Erin 
     Banco, Trump Tells Rudy to Keep Pushing the Biden 
     Conspiracies, Daily Beast (Dec. 18, 2019), https://perma.cc/
S5K6-K8J9 (quoting source who reported that President Trump 
     told Mr. Giuliani to ``keep at it'').
       240. Volker-Morrison Hearing Tr. at 139; see Kent Dep. Tr. 
     at 329.
       241. Kent Dep. Tr. at 329.
       242. Hill-Holmes Hearing Tr. at 32.
       243. Mueller Report, Vol. I at 1-2.
       244. Mueller Report, Vol. I at 49 (quoting then-candidate 
     Donald Trump).
       245. Id. Beginning in early November 2019, while the 
     House's impeachment inquiry was ongoing, Russian military 
     hackers reportedly hacked Burisma's server using ``strikingly 
     similar'' tactics to those used to hack the DNC in 2016. See 
     Nicole Perlroth & Matthew Rosenberg, Russians Hacked 
     Ukrainian Gas Company at Center of Impeachment, N.Y. Times 
     (Jan. 13, 2019), https://perma.cc/5NSA-BELW.
       246. Mueller Report, Vol. I at 6.
       247. Id., Vol. I at 58.
       248. See Aaron Blake, The Trump Team's History of Flirting 
     with--and Promoting--Now-Accused-Criminal Julian Assange, 
     Wash. Post (Nov. 16, 2018), https://perma.cc/UL9R-YQN.
       249. Mueller Report, Vol. I at 54; id., Vol. II at 18.
       250. Judd Legum, Trump Mentioned WikiLeaks 164 Times in 
     Last Month of Election, Now Claims It Didn't Impact One 
     Voter, ThinkProgress (Jan. 8, 2017), https://perma.cc/5J46-
 Y8RG.
       251. Mueller Report, Vol. I at 110-20.
       252. Id., Vol. I at 83-84, 87-89.
       253. Transcript: ABC News' George Stephanopoulos' Exclusive 
     Interview with President Trump, ABC News (June 16, 2019), 
     https://perma.cc/C8DS-637R.
       254. Id.
       255. Id.
       256. Sandy Dep. Tr. at 37-39; Morrison Dep. Tr. at 161.
       257. See Press Release, House Permanent Select Comm. on 
     Intelligence, House Judiciary and House Intelligence 
     Committees to Hold Open Hearing with Special Counsel Robert 
     Mueller (July 19, 2019), https://perma.cc/6TZZ-BJKS.
       258. The July 25 Memorandum at 3, https://perma.cc/8JRD-
 6K9V.
       259. U.S. Const., Art. I, Sec. 2, cl. 5.
       260. See, e.g., Resolution Recommending That the House of 
     Representatives Find William P. Barr, Attorney General, U.S. 
     Department of Justice, in Contempt of Congress for Refusal to 
     Comply with a Subpoena Duly Issued by the Committee on the 
     Judiciary, H. Rep. No. 116-105, at 13 (June 6, 2019) (``The 
     purposes of this investigation include . . . considering 
     whether any of the conduct described in the Special Counsel's 
     Report warrants the Committee in taking any further steps 
     under Congress' Article I powers. That includes whether to 
     approve articles of impeachment with respect to the 
     President[.]''); Directing Certain Committees to Continue 
     Their Ongoing Investigations as Part of the Existing House of 
     Representatives Inquiry into Whether Sufficient Grounds Exist 
     for the House of Representatives to Exercise its 
     Constitutional Power to Impeach Donald John Trump, President 
     of the United States of America, and for Other Purposes, H. 
     Rep. No. 116-266, at 4 (Oct. 2019).
       261. Sept. 9 Press Release, https://perma.cc/AX4Y-PWSH.
       262. Press Release, Speaker of the House, Pelosi Remarks 
     Announcing Impeachment Inquiry (Sept. 24, 2019), https://
perma.cc/6EQM-34PT.
       263. Id.
       264. H. Res. 660, 116th Cong. (2019).
       265. Compare 165 Cong. Rec. E1357 (2019) (Impeachment 
     Inquiry Procedures in the Committee on the Judiciary Pursuant 
     to H. Res. 660), with Investigatory Powers of the Committee 
     on the Judiciary with Respect to Its Impeachment Inquiry, H. 
     Rep. No. 105-795 (1998), and with Impeachment Inquiry: 
     Hearings Before the H. Comm. on the Judiciary, Book III, 93d 
     Cong. 2249-52 (1974); see also H. Rep. No. 116-346, at 17-25.
       266. H. Rep. No. 116-346, at 22-24.
       267. Remarks by President Trump Before Marine One 
     Departure, White House (Apr. 24, 2019), https://perma.cc/
W7VZ-FZ3T.
       268. Remarks by President Trump at Turning Point USA's Teen 
     Student Action Summit 2019, White House (July 23, 2019), 
     https://perma.cc/EFF6-9BE7.
       269. Sept. 9 Letter, https://perma.cc/R2GH-TZ9P.
       270. Letter from Chairman Eliot L. Engel, House Comm. on 
     Foreign Affairs, et al., to Pat A. Cipollone, Counsel to the 
     President 3 (Sept. 24, 2019), https://perma.cc/SCG3-6UEW.
       271. Remarks by President Trump upon Air Force One Arrival, 
     White House (Sept. 26, 2019), https://perma.cc/5RWE-8VTB.
       272. Letter from Chairman Elijah E. Cummings, House Comm. 
     on Oversight and Reform, et al., to John Michael Mulvaney, 
     Acting Chief of Staff to the President (Oct. 4, 2019) (Oct. 4 
     Letter), https://perma.cc/6RXE-WER8.
       273. Letter from Pat A. Cipollone, Counsel to the 
     President, to Speaker Nancy Pelosi, House of Representatives, 
     et al. 7 (Oct. 8, 2019), https://perma.cc/5P57-773X (Oct. 8 
     Cipollone Letter).
       274. Id. at 1-3, 6.
       275. @realDonaldTrump (Oct. 1, 2019, 4:41 PM), https://
perma.cc/UX8Z-BFKL.
       276. Letter from President Donald J. Trump to Speaker Nancy 
     Pelosi, House of Representatives (Dec. 17, 2019), https://
perma.cc/MY49-HRXH.

[[Page S312]]

  

       277. Id.
       278. Oct. 8 Cipollone Letter at 4.
       279. Exclusion of Agency Counsel from Congressional 
     Depositions in the Impeachment Context, 43 O.L.C. *1 (Nov. 1, 
     2019), https://perma.cc/T2PH-KC9V (emphasis added).
       280. See, e.g., Trump Sept. 25 Remarks, https://perma.cc/
XCJ4-A67L; Trump Sept. 30 Remarks, https://perma.cc/R94C-
 5HAY; Remarks by President Trump and President Niinisto of 
     the Republic of Finland Before Bilateral Meeting, White House 
     (Oct. 2, 2019), https://perma.cc/FN4D-6D8W; Trump Oct. 3 
     Remarks, https://perma.cc/WM8A-NRA2; Trump Oct. 4 Remarks, 
     https://perma.cc/C78K-NMDS; @realDonaldTrump (Nov. 10, 2019, 
     11:43 AM), https://perma.cc/F9XH-48Z2; id. (Dec. 4, 2019, 
     7:50 PM), https://perma.cc/Q4VY-T3CN; id., https://perma.cc/
3WCM-AQJG.
       281. Rick Perry Called Rudy Giuliani, https://perma.cc/
S2ED-AUPR.
       282. Id. (quoting Secretary Rick Perry).
       283. Oct. 17 Briefing, https://perma.cc/Q45H-EMC7.
       284. H. Rep. No. 116-346, at 11 (``On December 3, 2019, in 
     consultation with the Committees on Oversight and Reform and 
     Foreign Affairs, HPSCI released and voted to adopt a report 
     of nearly 300 pages detailing its extensive findings about 
     the President's abuse of his office and obstruction of 
     Congress.'').
       285. The Impeachment Inquiry into President Donald J. 
     Trump: Constitutional Grounds for Presidential Impeachment: 
     Hearing Before the H. Comm. on the Judiciary, 116th Cong. 
     (Dec. 4, 2019); The Impeachment Inquiry into President Donald 
     J. Trump: Presentations from H. Permanent Select Comm. on 
     Intelligence and H. Comm. on the Judiciary Before the H. 
     Comm. on the Judiciary, 116th Cong. (Dec. 9, 2019).
       286. See, e.g., Letter from President Donald J. Trump to 
     Speaker Nancy Pelosi, U.S. House of Representatives (Dec. 17, 
     2019), https://perma.cc/Y6X4-TTPR.
       287. Katie Rogers, At Louisiana Rally, Trump Lashes Out at 
     Impeachment Inquiry and Pelosi, N.Y. TIMES (Oct. 11, 2019), 
     https://perma.cc/RX9Z-DQHK.
       288. See e.g., Danny Cevallos, Trump Tweeted as Marie 
     Yovanovitch Testified: Was It Witness Tampering?, NBC News 
     (Nov. 16, 2019), https://perma.cc/RG5N-EQYN; @realDonaldTrump 
     (Sept. 29, 2019, 3:53 PM), https://perma.cc/9C3P-E437; Trump 
     War Room--Text FIGHT to 88022 (@TrumpWarRoom) (Dec. 26, 2019, 
     1:50 PM), https://perma.cc/M5H7-B4VS (retweeted by 
     @realDonaldTrump on Dec. 26, 2019).
       289. H. Res. 755, 116th Cong (2019).
       290. See H. Rep. No. 116-335, at 180-92.
       291. Oct. 4 Letter, https://perma.cc/6RXE-WER8; Letter from 
     Chairman Eliot L. Engel, House Comm. on Foreign Affairs, et 
     al., to Vice President Michael R. Pence (Oct. 4, 2019), 
     https://perma.cc/E6TR-5N5F; Letter from Chairman Adam B. 
     Schiff, House Permanent Select Comm. on Intelligence, et al., 
     to Russell T. Vought, Acting Dir., Office of Mgmt. & Budget 
     (Oct. 7, 2019), https://perma.cc/2HBV-2LNB; Letter from 
     Chairman Eliot L. Engel, House Comm. on Foreign Affairs, et 
     al., to Michael R. Pompeo, Sec'y, Dep't of State (Sept. 27, 
     2019), https://perma.cc/8N7L-VSDR; Letter from Chairman Adam 
     B. Schiff, House Permanent Select Comm. on Intelligence, et 
     al., to Mark Esper, Sec'y, Dep't of Def. (Oct. 7, 2019), 
     https://perma.cc/LMU8-XWE9; Letter from Chairman Eliot L. 
     Engel, House Comm. on Foreign Affairs, et al., to Rick Perry, 
     Sec'y, Dep't of Energy (Oct. 10, 2019), https://perma.cc/
586S-AR8A.
       292. Letter from Matthew E. Morgan, Counsel to the Vice 
     President, to Chairman Elijah E. Cummings, House Comm. on 
     Oversight and Reform, et al. (Oct. 15, 2019), https://
perma.cc/L6LD-C4YM.
       293. Letter from Jason Yaworske, Assoc. Dir. for 
     Legislative Affairs, Office of Mgmt. & Budget, to Chairman 
     Adam B. Schiff, House Permanent Select Comm. on Intelligence 
     (Oct. 15, 2019), https://perma.cc/AL7W-YBLR; Letter from 
     Robert R. Hood, Assistant Sec'y of Def. for Legislative 
     Affairs, Dep't of Def., to Chairman Adam B. Schiff, House 
     Permanent Select Comm. on Intelligence, et al. (Oct. 15, 
     2019), https://perma.cc/79ZG-ASGM.
       294. See, e.g., Vindman-Williams Hearing Tr. at 31-32 
     (briefing materials for President Trump's call with President 
     Zelensky on July 25 prepared by Lt. Col. Vindman, Director 
     for Ukraine at the NSC); Vindman Dep. Tr. at 53 and Morrison 
     Dep. Tr. at 19-20 (notes relating to the July 25 call taken 
     by Lt. Col. Vindman and Mr. Morrison, the former Senior 
     Director for Europe and Russia on the NSC); Vindman Dep. Tr. 
     at 186-87 and Morrison Dep. Tr. at 166-67 (an August 15 
     ``Presidential decision memo'' prepared by Lt. Col. Vindman 
     and approved by Mr. Morrison conveying ``the consensus views 
     from the entire deputies small group'' that ``the security 
     assistance be released''); Cooper Dep. Tr. at 42-43 (NSC 
     staff summaries of conclusions from meetings at the 
     principal, deputy, or sub-deputy level relating to Ukraine, 
     including military assistance); Sondland Hearing Tr. at 78-79 
     (call records between President Trump and Ambassador 
     Sondland,); Vindman Dep. Tr. at 36-37 (NSC Legal Advisor 
     Eisenberg's notes and correspondence relating to discussions 
     with Lt. Col. Vindman regarding the July 10 meetings in which 
     Ambassador Sondland requested investigations in exchange for 
     a White House meeting); Holmes Dep. Tr. at 31 (the memorandum 
     of conversation from President Trump's meeting in New York 
     with President Zelensky on September 25); Sondland Opening 
     Statement (emails and other messages between Ambassador 
     Sondland and senior White House officials, including Acting 
     Chief of Staff Mulvaney, Senior Advisor to the Chief of Staff 
     Blair, and then-National Security Advisor Bolton, among other 
     high-level Trump Administration officials).
       295. See H. Rep. No. 116-335, at 180-244.
       296. Vindman Dep. Tr. at 186-87; Morrison Dep. Tr. at 166-
     67; see also, e.g., Sandy Dep. Tr. at 58-60 (describing an 
     OMB memorandum prepared in August that recommended removing 
     the hold).
       297. Taylor Dep. Tr. at 33-34, 45-46 (describing August 27 
     cable to Secretary Pompeo, WhatsApp messages with Ukrainian 
     and American officials, and notes); Volker Dep. Tr. at 20 
     (describing State Department's possession of substantial 
     paper trail of correspondence concerning meetings with 
     Ukraine); Yovanovitch Dep. Tr. at 61 (describing classified 
     email to Under Secretary Hale); id. at 197-200 (describing a 
     dispute between George Kent and the State Department 
     pertaining to subpoenaed documents).
       298. See, e.g., State Department Releases Ukraine Documents 
     to American Oversight, American Oversight (Nov. 22, 2019), 
     https://perma.cc/N7K2-D7G3; Joint Status Report at 1, 
     American Oversight v. Dep't of State, No. 19-cv-2934 (D.D.C. 
     Nov. 25, 2019), ECF No. 19.
       299. For example, documents produced by OMB, unredacted 
     copies of which reportedly were obtained by the online forum 
     Just Security, corroborate the witnesses who testified that 
     the military aid for Ukraine was withheld at the express 
     direction of President Trump and that the White House was 
     informed that doing so may violate the law. See Just Security 
     Report, https://perma.cc/VA6U-RYPK.
       300. See Letter from Pat A. Cipollone, Counsel to the 
     President, to William Pittard, Counsel to Acting Chief of 
     Staff Mick Mulvaney (Nov. 8, 2019), https://perma.cc/9PHC-
 84AM; Letter from Pat A. Cipollone, Counsel to the President, 
     to William Burck, Counsel to Deputy Counsel to the President 
     for Nat'l Security Affairs John Eisenberg (Nov. 3, 2019), 
     https://perma.cc/QP4G-YMKQ.
       301. See, e.g., Letter from Jason A. Yaworske, Associate 
     Dir. for Leg. Affairs, Office of Mgmt. & Budget, to Chairman 
     Adam B. Schiff, House Permanent Select Comm. on Intelligence 
     (Nov. 4, 2019), https://perma.cc/4AYC-8SD9 (asserting OMB's 
     ``position that, as directed by the White House Counsel's 
     October 8, 2019 letter, OMB will not participate in this 
     partisan and unfair inquiry,'' and that three OMB officials 
     would therefore defy subpoenas for their testimony).
       302. See H. Rep. No. 116-335, at 195, 198-99, 201, 203. 
     Such witnesses included Robert Blair, Michael Ellis, P. Wells 
     Griffith, Russell Vought, and Brian McCormack. Id.
       303. See id. at 193-206 (describing and quoting from 
     correspondence with each witness who refused to appear).
       304. See H. Rep. No. 116-346, at 200, 365; see, e.g., 
     Letter from Chairman Adam B. Schiff, House Permanent Select 
     Comm. on Intelligence, et al., to Michael Duffey, Assoc. Dir. 
     for Nat'l Sec. Programs, Office of Mgmt. & Budget (Oct. 25, 
     2019), https://perma.cc/3S5B-FH94; Email from Daniel S. 
     Noble, Senior Investigative Counsel, House Permanent Select 
     Comm. on Intelligence, to Mick Mulvaney, Acting Chief of 
     Staff to the President (Nov. 7, 2019), https://perma.cc/A62P-
 5ACG.
       305. See, e.g., Letter from Brian Bulatao, Under Sec'y of 
     State for Mgmt., Dep't of State, to Lawrence S. Robbins, 
     Counsel to Ambassador Marie Yovanovitch 1 (Oct. 10, 2019), 
     https://perma.cc/48UC-KJCM (``I write on behalf of the 
     Department of State, pursuant to the President's instruction 
     reflected in Mr. Cipollone's letter, to instruct your client 
     . . . consistent with Mr. Cipollone's letter, not to appear 
     before the Committees.''); id. at 3-10 (enclosing Mr. 
     Cipollone's letter); Letter from David L. Norquist, Deputy 
     Sec'y of Def., Dep't of Def., to Daniel Levin, Counsel to 
     Deputy Assistant Sec'y of Def. Laura K. Cooper 1-2 (Oct. 22, 
     2019), https://perma.cc/WM97-DZJZ (``This letter informs you 
     and Ms. Cooper of the Administration-wide direction that 
     Executive Branch personnel `cannot participate in [the 
     impeachment] inquiry under these circumstances.' '' (quoting 
     Mr. Cipollone's letter)); id. at 25-32 (enclosing Mr. 
     Cipollone's letter).
       306. See H. Rep. No. 116-346, at 9; see also Read for 
     Yourself: President Trump's Abuse of Power, House Permanent 
     Select Comm. on Intelligence, https://perma.cc/2L54-YY9P.
       307. See H. Rep. No. 116-346, at 9.
       308. See id. at 10-11.
       309. See H. Rep. No. 116-335, at 217-20 (detailing the ways 
     that ``President Trump publicly attacked and intimidated 
     witnesses who came forward to comply with duly authorized 
     subpoenas and testify about his conduct.''); H. Rep. No. 116-
     346, at 366-67.
       310. See H. Rep. No. 116-335, at 221-23 (detailing the ways 
     that President Trump ``threatened and attacked an 
     Intelligence Community whistleblower''); H. Rep. No. 116-346, 
     at 366-67.
       311. See generally Mueller Report, Vol. II; H. Rep. No. 
     116-346, at 159-61.
       312. Mueller Report, Vol. II at 85-86.
       313. Id., Vol. II at 114-17.
       314. Id., Vol. II at 90-93.
       315. Id., Vol. II at 120-56.
       316. See Comm. on the Judiciary v. McGahn,--F. Supp. 3d--, 
     No. 19-2379. 2019 WL 6312011 (D.D.C. Nov. 25, 2019), appeal 
     pending, No. 19-5331 (D.C. Cir.). The U.S. Court of Appeals 
     for the D.C. Circuit heard oral argument in the case on 
     January 3, 2020.
       317. Mueller Report, Vol. I at 1 (describing the scope of 
     the order appointing Special Counsel Mueller).

[[Page S313]]

  

       318. See, e.g., id., Vol. I at 1-2 (the Trump Campaign 
     ``expected it would benefit electorally from information 
     stolen and released through Russian efforts'').
       319. See generally id., Vol. II. As the Mueller Report 
     summarizes, the Special Counsel's investigation ``found 
     multiple acts by the President that were capable of exerting 
     undue influence over law enforcement investigations, 
     including the Russian-interference and obstruction 
     investigations. The incidents were often carried out through 
     one-on-one meetings in which the President sought to use his 
     official power outside of usual channels. These actions 
     ranged from efforts to remove the Special Counsel and to 
     reverse the effect of the Attorney General's recusal; to the 
     attempted use of official power to limit the scope of the 
     investigation; to direct and indirect contacts with witnesses 
     with the potential to influence their testimony.'' Id., Vol. 
     II at 157.

            [In Proceedings Before the United States Senate]

             Trial Memorandum of President Donald J. Trump


                           EXECUTIVE SUMMARY

       The Articles of Impeachment now before the Senate are an 
     affront to the Constitution and to our democratic 
     institutions. The Articles themselves--and the rigged process 
     that brought them here--are a brazenly political act by House 
     Democrats that must be rejected. They debase the grave power 
     of impeachment and disdain the solemn responsibility that 
     power entails. Anyone having the most basic respect for the 
     sovereign will of the American people would shudder at the 
     enormity of casting a vote to impeach a duly elected 
     President. By contrast, upon tallying their votes, House 
     Democrats jeered until they were scolded into silence by the 
     Speaker. The process that brought the articles here violated 
     every precedent and every principle of fairness followed in 
     impeachment inquiries for more than 150 years. Even so, all 
     that House Democrats have succeeded in proving is that the 
     President did absolutely nothing wrong.
       After focus-group testing various charges for weeks, House 
     Democrats settled on two flimsy Articles of Impeachment that 
     allege no crime or violation of law whatsoever--much less 
     ``high Crimes and Misdemeanors,'' as required by the 
     Constitution. They do not remotely approach the 
     constitutional threshold for removing a President from 
     office. The diluted standard asserted here would permanently 
     weaken the Presidency and forever alter the balance among the 
     branches of government in a manner that offends the 
     constitutional design established by the Founders. House 
     Democrats jettisoned all precedent and principle because 
     their impeachment inquisition was never really about 
     discovering the truth or conducting a fair investigation. 
     Instead, House Democrats were determined from the outset to 
     find some way--any way--to corrupt the extraordinary power of 
     impeachment for use as a political tool to overturn the 
     result of the 2016 election and to interfere in the 2020 
     election. All of this is a dangerous perversion of the 
     Constitution that the Senate should swiftly and roundly 
     condemn.
     I. The articles fail because they do not identify any 
         impeachable offense

A. House Democrats' Theory of ``Abuse of Power'' Is Not an Impeachable 
                                Offense

       House Democrats' novel theory of ``abuse of power'' 
     improperly supplants the standard of ``high Crimes and 
     Misdemeanors'' with a made-up theory that would permanently 
     weaken the Presidency by effectively permitting impeachments 
     based merely on policy disagreements.
       1. By limiting impeachment to cases of ``Treason, Bribery, 
     or other high Crimes and Misdemeanors,'' \1\ the Framers 
     restricted impeachment to specific offenses against ``already 
     known and established law.'' \2\ That was a deliberate choice 
     designed to constrain the impeachment power. In keeping with 
     that restriction, every prior presidential impeachment in our 
     history has been based on alleged violations of existing 
     law--indeed, criminal law.\3\ House Democrats' newly invented 
     ``abuse of power'' theory collapses at the threshold because 
     it fails to allege any violation of law whatsoever.
       2. House Democrats' concocted theory that the President can 
     be impeached for taking permissible actions if he does them 
     for what they believe to be the wrong reasons would also 
     expand the impeachment power beyond constitutional bounds. It 
     would allow a hostile House to attack almost any presidential 
     action by challenging a President's subjective motives. 
     Worse, House Democrats' methods for identifying supposedly 
     illicit motives ignore the constitutional structure of our 
     government. As proof of improper motive, they claim that the 
     President supposedly ``disregarded United States foreign 
     policy towards Ukraine,'' \4\ that he was ``briefed on 
     official policy'' \5\ but chose to ignore it, and that he 
     ``ignored, defied, and confounded every office and agency 
     within the Executive Branch.'' \6\ These assertions are 
     preposterous and dangerous. They misunderstand the assignment 
     of power under the Constitution and the very concept of 
     democratic accountability. Article II states that ``[t]he 
     executive Power shall be vested in a President.'' \7\ It is 
     the President who defines foreign policy, not the unelected 
     bureaucrats who are his subordinates. Any theory of an 
     impeachable offense that turns on ferreting out supposedly 
     ``constitutionally improper'' \8\ motives by measuring the 
     President's policy decisions against a purported interagency 
     consensus \9\ is both fundamentally anti-democratic and an 
     absurdly impermissible inversion of the constitutional 
     structure.

  B. House Democrats' Theory of ``Obstruction of Congress'' Is Not an 
                          Impeachable Offense

       House Democrats' ``obstruction of Congress'' claim is 
     frivolous and dangerous. House Democrats propose removing the 
     President from office because he asserted legal rights and 
     privileges of the Executive Branch against defective 
     subpoenas--based on advice from the Department of Justice. 
     Accepting that theory would do lasting damage to the 
     separation of powers.

   1. President Trump properly asserted executive branch prerogatives

       Contrary to the mistaken charge that the President lacked 
     ``lawful cause or excuse'' to resist House Democrats' 
     subpoenas,\10\ the President acted only after securing advice 
     from the Department of Justice's Office of Legal Counsel 
     (OLC) and based on established legal principles or 
     immunities.
       a. Several Executive Branch officials refused to comply 
     with subpoenas purportedly issued pursuant to an 
     ``impeachment inquiry'' before the House had authorized any 
     such inquiry, because, as OLC advised, the subpoenas were 
     unauthorized and had no legal force.\11\
       b. The President directed three of his most senior advisers 
     not to comply with subpoenas seeking their testimony because 
     they are immune from compelled testimony before Congress. 
     Through administrations of both political parties, OLC ``has 
     repeatedly provided for nearly five decades'' that ``Congress 
     may not constitutionally compel the President's senior 
     advisers to testify about their official duties.'' \12\ In 
     the Clinton administration, for example, Attorney General 
     Janet Reno explained that ``the immunity such [immediate] 
     advisers enjoy from testimonial compulsion by a congressional 
     committee is absolute and may not be overborne by competing 
     congressional interests.'' \13\
       c. Under the President's supervision, Executive Branch 
     officials were directed not to comply with subpoenas because 
     the committees seeking their testimony refused to allow them 
     to be accompanied by agency counsel. OLC concluded that the 
     committees ``may not bar agency counsel from assisting an 
     executive branch witness without contravening the legitimate 
     prerogatives of the Executive Branch,'' and that attempting 
     to enforce a subpoena while barring agency counsel ``would be 
     unconstitutional.'' \14\

  2. Defending the separation of powers is not an impeachable offense

       Contrary to House Democrats' claims, asserting legal rights 
     and constitutional privileges of the Executive Branch is not 
     ``obstruction.''
       a. In a government of laws, asserting legal defenses cannot 
     be treated as obstruction; it is a fundamental right. As the 
     Supreme Court has instructed: ``[F]or an agent of the State 
     to pursue a course of action whose objective is to penalize a 
     person's reliance on his legal rights is `patently 
     unconstitutional.' '' \15\ The same principles apply in 
     impeachment. During the Clinton impeachment, Harvard Law 
     Professor Laurence Tribe put it this way:
       The allegations that invoking privileges and otherwise 
     using the judicial system to shield information . . . is an 
     abuse of power that should lead to impeachment and removal 
     from office is not only frivolous, but also dangerous.\16\
       In 1998, now-Chairman Jerrold Nadler agreed that a 
     president cannot be impeached for asserting a legal 
     privilege: ``[T]he use of a legal privilege is not illegal or 
     impeachable by itself, a legal privilege, executive 
     privilege.'' \17\ And Chairman Adam Schiff has turned the law 
     on its head with his unprecedented claim that it is 
     ``obstruction'' for any official to assert rights that 
     might prompt House committees even ``to consider 
     litigation'' to establish the validity of their subpoenas 
     in court.\18\
       b. Where, as here, the principles the President invoked are 
     critical for preserving Executive Branch prerogatives, 
     treating the assertion of privileges as ``obstruction'' would 
     do permanent damage to the separation of powers--among all 
     three branches. House Democrats have essentially announced 
     that they may treat any resistance to their demands as 
     ``obstruction'' without taking any steps to resolve their 
     dispute with the President. Accepting that unprecedented 
     approach would fundamentally damage the separation of powers 
     by making the House itself the sole judge of its authority. 
     It would permit Congress to threaten every President with 
     impeachment merely for protecting the prerogatives of the 
     Presidency. As Professor Jonathan Turley testified before the 
     House Judiciary Committee: ``Basing impeachment on this 
     obstruction theory would itself be an abuse of power . . . by 
     Congress.'' \19\
       c. At bottom, the ``obstruction'' charge asks the Senate to 
     remove a duly elected President from office because he acted 
     on the advice of the Department of Justice concerning his 
     legal and constitutional rights as President. Stating that 
     proposition exposes it as frivolous. The Framers restricted 
     impeachment to reach only egregious conduct that endangers 
     the Constitution. A difference of legal opinion over whether 
     subpoenas are enforceable cannot be dressed up to approach 
     that level. As Edmund Randolph explained in the Virginia 
     ratifying convention, ``No man ever thought of impeaching a 
     man for an opinion.'' \20\

[[Page S314]]

  

     II. The impeachment inquiry in the House was irredeemably 
         flawed

   A. House Democrats' Inquiry Violated All Precedent and Due Process

       1. The process that resulted in these Articles of 
     Impeachment was flawed from the start. Since the Founding of 
     the Republic, the House has never launched an impeachment 
     inquiry against a President without a vote of the full House 
     authorizing it. And there is good reason for that. No 
     committee can investigate pursuant to powers assigned by the 
     Constitution to the House--including the ``sole Power of 
     Impeachment'' \21\--unless the House has voted to delegate 
     authority to the committee.\22\ Here, it was emblematic of 
     the lack of seriousness that characterized this whole process 
     that House Democrats cast law and history aside and started 
     their purported inquiry with nothing more than a press 
     conference.\23\ On that authority alone, they issued nearly 
     two dozen subpoenas that OLC determined were unauthorized and 
     invalid.\24\ The full House did not vote to authorize the 
     inquiry until five weeks later when it adopted House 
     Resolution 660 on October 31, 2019. That belated action was a 
     telling admission that the process was unauthorized.
       2. Next, House Democrats concocted an unheard of procedure 
     that denied the President any semblance of fair process. The 
     proceedings began with secret hearings in a basement bunker 
     before three committees under the direction of Chairman 
     Schiff of the House Permanent Select Committee on 
     Intelligence (HPSCI). The President was denied any right to 
     participate at all. He was denied the right to have counsel 
     present, to cross examine witnesses, to call witnesses, and 
     to see and present evidence. Meanwhile, House Democrats 
     selectively leaked distorted versions of the secret testimony 
     to compliant members of the press, who happily fed the public 
     a false narrative about the President.
       Then, House Democrats moved on to a true show trial as they 
     brought their hand-picked witnesses, whose testimony had 
     already been set in private, before the cameras to present 
     prescreened testimony to the public. There, before HPSCI, 
     they continued to deny the President any rights. He could not 
     be represented by counsel, could not present evidence or 
     witnesses, and could not cross examine witnesses.
       This process not only violated every precedent from the 
     Nixon and Clinton impeachment inquiries, it violated every 
     principle of justice and fairness known to our legal 
     tradition. For more than 250 years, the common law system has 
     regarded cross-examination as the ``greatest legal engine 
     ever invented for the discovery of truth.'' \25\ House 
     Democrats denied the President that right and every other 
     right because they were not interested in the truth. Their 
     only interest was securing an impeachment, and they knew that 
     a fair process could not get them there.
       When the impeachment stage-show moved on to the Judiciary 
     Committee, House Democrats again denied the President his 
     rights. The Committee had already decided to forego fact-
     finding and to adopt the one-sided record from HPSCI's ex 
     parte hearings. Worse, Speaker Nancy Pelosi had already 
     instructed the Committee to draft articles of impeachment. 
     The only role for the Committee was to ram through the 
     articles to secure a House vote by Christmas.\26\ There could 
     not have been a more blatant admission that evidence did not 
     matter, the process was rigged, and impeachment was a pre-
     ordained result.
       All of this reflected shameful hypocrisy from House 
     Democrat leaders, who for decades had insisted on the 
     importance of due process protections in an impeachment 
     inquiry. Chairman Nadler himself has explained that a House 
     impeachment inquiry ``demands a rigorous level of due 
     process.'' \27\ Specifically, he explained that ``due process 
     mean[s] . . . the right to confront the witnesses against 
     you, to call your own witnesses, and to have the assistance 
     of counsel.'' \28\ Here, however, all due process rights were 
     denied to the President.
       3. Chairman Schiff's hearings were fatally defective for 
     another reason--Schiff himself was instrumental in helping to 
     create the story behind them. This inquiry centered on the 
     President's conversation on July 25, 2019, with the President 
     of Ukraine. That call became a matter of public speculation 
     after a so-called whistleblower relayed a distorted, second-
     hand version of the call to the Inspector General of the 
     Intelligence Community (ICIG). Before laundering his 
     distortions through the ICIG, the same person secretly shared 
     his false account with Chairman Schiff's HPSCI staff and 
     asked ``for guidance.'' \29\ After initially lying about it, 
     Chairman Schiff was forced to admit that his staff had 
     conferred with the so-called whistleblower before he filed 
     his complaint. But the entirety of the role that Chairman 
     Schiff and his staff played in orchestrating the complaint 
     that launched this entire farce remains shrouded in secrecy 
     to this day--Chairman Schiff himself shut down every effort 
     to inquire into it.
       4. The denial of basic due process rights to the President 
     is such a fundamental error infecting the House proceedings 
     that the Senate could not possibly rely upon the corrupted 
     House record to reach a verdict of conviction. Any such 
     record is tainted, and any reliance on a record created 
     through the wholesale denial of due process rights would be 
     unconstitutional. Nor is it the Senate's role to remedy the 
     House's errors by providing a ``do-over'' and developing the 
     record itself.

       B. House Democrats' Goal Was Never to Ascertain the Truth

       House Democrats resorted to these unprecedented procedures 
     because the goal was never to get to the truth. The goal was 
     to impeach the President, no matter the facts.
       House Democrats' impeachment crusade started the day the 
     President took office. As Speaker Pelosi confirmed in 
     December 2019, her party's quest to impeach the President had 
     already been ``going on for 22 months . . . [t]wo and a half 
     years, actually.'' \30\ The moment the President was sworn 
     in, The Washington Post reported that partisans had launched 
     a campaign to impeach him.\31\ The current proceedings began 
     with a complaint prepared with the assistance of a lawyer who 
     declared in 2017 that he would use ``impeachment'' to effect 
     a ``coup.'' \32\
       House Democrats originally pinned their impeachment hopes 
     on the lie that the Trump Campaign had colluded with Russia 
     during the 2016 election. That fixation brought the country 
     the Mueller investigation. But after almost two years, $32 
     million, 2,800 subpoenas, and nearly 500 search warrants 
     \33\--along with incalculable damage to the Nation--the 
     Mueller investigation thoroughly disproved Democrats' Russian 
     collusion delusion. To make matters worse, we now know 
     that the Mueller investigation (and its precursor, 
     Crossfire Hurricane) also brought with it shocking abuses 
     in the use of FISA orders to spy on American citizens and 
     a major-party presidential campaign--including omissions 
     and even outright lies to the Foreign Intelligence 
     Surveillance Court and the fabrication of evidence by a 
     committed partisan embedded in the FBI.
       House Democrats could not tolerate the findings of the 
     Mueller Report debunking the collusion myth. Instead, they 
     launched hearings and issued subpoenas straining to find 
     wrongdoing where Special Counsel Mueller and the Department 
     of Justice had found none. And they launched new 
     investigations, trying to rummage through the President's tax 
     returns and pushing fishing expeditions everywhere in the 
     hope that they might find something. No other President in 
     history has been subjected to a comparable barrage of 
     investigations, subpoenas, and lawsuits, all in service of an 
     insatiable partisan desire to find some way to remove him 
     from office.
       When those proceedings went nowhere, House Democrats seized 
     on the next vehicle that could be twisted to carry their 
     impeachment dream: a perfectly appropriate telephone call 
     between President Trump and the President of Ukraine. House 
     Democrats have pursued their newly concocted charges for two 
     reasons. First, they have been obsessed for years with 
     overturning the 2016 election. Radical left Democrats have 
     never been able to come to grips with losing the election, 
     and impeachment provides them a way to nullify the judgment 
     of the tens of millions of voters who rejected their 
     candidate. Second, they want to use impeachment to interfere 
     in the 2020 election. It is no accident that the Senate is 
     being asked to consider a presidential impeachment during an 
     election year. Put simply, Democrats have no response to the 
     President's record of achievement in restoring prosperity to 
     the American economy, rebuilding America's military, and 
     confronting America's adversaries abroad. Instead, they are 
     held hostage by a radical left wing that has foisted on their 
     party an agenda of socialism at home and appeasement abroad 
     that Democrat leaders know the American people will never 
     accept. For the Democrats, impeachment became an electoral 
     imperative. Congressman Al Green summarized that thinking 
     best: ``[I]f we don't impeach the [P]resident, he will get 
     re-elected.'' \34\ In their scorched-earth campaign against 
     the President, House Democrats view impeachment merely as the 
     continuation of politics by other means.
       The result of House Democrats' pursuit of their 
     obsessions--and their willingness to sacrifice every 
     precedent and every principle standing in their way--is 
     exactly what the Framers warned against: a wholly partisan 
     impeachment. These articles were adopted without a single 
     Republican vote. Indeed, there was bipartisan opposition to 
     them.\35\
       Democrats used to recognize that the momentous act of 
     overturning a national election by impeaching a President 
     should never be done on a partisan basis. As Chairman Nadler 
     explained:
       There must never be a narrowly voted impeachment or an 
     impeachment supported by one of our major political parties 
     and opposed by another. Such an impeachment will produce 
     divisiveness and bitterness in our politics for years to 
     come, and will call into question the very legitimacy of our 
     political institutions.\36\
       Senator Patrick Leahy agreed: ``A partisan impeachment 
     cannot command the respect of the American people. It is no 
     more valid than a stolen election.'' \37\ Chairman Nadler, 
     again, acknowledged that merely ``hav[ing] the votes'' and 
     ``hav[ing] the muscle'' in the House, without ``the 
     legitimacy of a national consensus,'' is just an attempted 
     ``partisan coup d'etat.'' \38\ Just last year, even Speaker 
     Pelosi acknowledged that an impeachment ``would have to be so 
     clearly bipartisan in terms of acceptance of it.'' \39\ All 
     of these prior invocations of principle have now been 
     abandoned, adding to the wreckage littering the wake of House 
     Democrats' impeach-at-all-costs strategy.

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     III. Article I fails because House Democrats have no evidence 
         to support their claims

  A. The Evidence Shows That the President Did Not Condition Security 
     Assistance or a Presidential Meeting on Announcements of Any 
                             Investigations

       House Democrats have falsely charged that the President 
     supposedly conditioned military aid or a presidential meeting 
     on Ukraine's announcing a specific investigation. Yet despite 
     running an entirely ex parte, one-sided process to gather 
     evidence, House Democrats do not have a single witness who 
     claims, based on direct knowledge, that the President ever 
     actually imposed such a condition. Several undisputed, core 
     facts make clear that House Democrats' charges are baseless.
       1. In an unprecedented display of transparency, the 
     President released the transcript of his July 25 call with 
     President Volodymyr Zelensky, and it shows that the President 
     did nothing wrong. The Department of Justice reviewed the 
     transcript months ago and rejected the suggestion by the ICIG 
     (based on the whistleblower's distorted account) that the 
     call might have raised an election-law violation.\40\
       2. President Zelensky, his Foreign Minister, and other 
     Ukrainian officials have repeatedly said there was no quid 
     pro quo and no pressure placed on them by anyone.
       3. President Zelensky, his senior advisers, and House 
     Democrats' own witnesses have all confirmed that Ukraine's 
     senior leaders did not even know the aid was paused until 
     after a Politico article was published on August 28, 2019--
     over a month after the July 25 call and barely two weeks 
     before the aid was released on September 11.
       4. House Democrats' case rests almost entirely on: (i) 
     statements from Ambassador to the European Union Gordon 
     Sondland that he had come to believe (before talking to the 
     President) that the aid and a meeting were ``likely'' linked 
     to investigations; and (ii) hearsay and speculation from 
     others echoing Sondland second- or third-hand. But Sondland 
     admitted that he was only ``presuming'' a link.\41\ He stated 
     unequivocally that he has no evidence ``[o]ther than [his] 
     own presumption'' that President Trump connected releasing 
     the aid to investigations, and he agreed that ``[n]o one on 
     this planet told [him] that Donald Trump was tying aid to 
     investigations.'' \42\ Similarly, as for a link between a 
     meeting and investigations, Sondland admitted that he was 
     speculating about that as well, based on hearsay.\43\ When 
     asked if ``the President ever [told him] personally about any 
     preconditions for anything''--i.e., for aid or a meeting--
     Sondland responded, ``No.'' \44\ And when Ambassador Kurt 
     Volker, the special envoy who had actually been negotiating 
     with the Ukrainians, was asked if the President ever withheld 
     a meeting to pressure the Ukrainians, he said: ``The answer 
     to the question is no.'' \45\ ``[T]here was no linkage like 
     that.'' \46\
       The only two people with statements on record who spoke 
     directly to the President on the matter--Sondland and Senator 
     Ron Johnson--directly contradicted House Democrats' false 
     allegations. Sondland testified that when he asked the 
     President what he wanted, the President stated unequivocally: 
     ``I want nothing. I want no quid pro quo.'' \47\ Similarly, 
     Senator Johnson related that, when he asked the President if 
     there was any linkage between investigations and the aid, the 
     President responded: ``(Expletive deleted)--No way. I would 
     never do that.'' \48\
       5. The military aid flowed on September 11, 2019, and a 
     presidential meeting was first scheduled for September 1 and 
     then took place on September 25, 2019, all without the 
     Ukrainian government having done anything about 
     investigations.
       6. The undisputed reality is that U.S. support for Ukraine 
     against Russia has increased under President Trump. President 
     Trump provided Ukraine Javelin anti-tank missiles to use 
     against Russia after President Obama refused to provide that 
     assistance. President Trump also imposed heavy sanctions on 
     Russia, for which President Zelensky thanked him.\49\ A 
     parade of State Department and National Security Council 
     (NSC) career officials universally acknowledged that 
     President Trump's policy was stronger in support of Ukraine 
     against Russia than his predecessor's. Ambassador Yovanovitch 
     testified that ``our policy actually got stronger'' under 
     President Trump,\50\ and Ambassador Taylor agreed that aid 
     under President Trump was a ``substantial improvement'' over 
     the previous administration, largely because ``this 
     administration provided Javelin anti-tank weapons,'' which 
     ``are serious weapons'' that ``will kill Russian tanks.'' 
     \51\
       The evidence shows that President Trump had legitimate 
     concerns about corruption and burden-sharing with our 
     allies--two consistent themes in his foreign policy. When his 
     concerns had been addressed, the aid was released on 
     September 11 without any action concerning investigations. 
     Similarly, a bilateral meeting with President Zelensky was 
     first scheduled for September 1 in Warsaw and, after 
     rescheduling due to Hurricane Dorian, took place on September 
     25 in New York, again, all without the Ukrainians doing 
     anything related to investigations.
       As Professor Turley summed it up, this impeachment 
     ``stand[s] out among modern impeachments as the shortest 
     proceeding, with the thinnest evidentiary record, and the 
     narrowest grounds ever used to impeach a president.'' \52\ It 
     is a constitutional travesty.

B. House Democrats Rest on the False Premise that There Could Have Been 
    No Legitimate Reason To Mention 2016 or the Biden-Burisma Affair

       The charges in Article I are further flawed because they 
     rest on the mistaken premise that it would have been 
     illegitimate for the President to mention to President 
     Zelensky either (i) possible Ukrainian interference in the 
     2016 election; or (ii) an incident in which then-Vice 
     President Biden had forced the dismissal of a Ukrainian 
     prosecutor. House Democrats acknowledge that, even under 
     their theory of ``abuse of power,'' they must establish (in 
     their words) that these matters were ``bogus'' or ``sham 
     investigations'' \53\--that the only reason for raising them 
     would have been ``to obtain an improper personal political 
     benefit.'' \54\ But that is obviously false. Even if the 
     President had raised those issues, there were legitimate 
     reasons to do so.
       1. Uncovering potential foreign interference in U.S. 
     elections is always a legitimate goal, whatever the source of 
     the interference and whether or not it fits with Democrats' 
     preferred narrative about 2016. House Democrats' assertion 
     that asking historical questions about the last election 
     somehow equates to securing ``improper interference'' in the 
     next election is nonsensical. Asking about the past cannot be 
     twisted into interference in a future election. Even if facts 
     uncovered about conduct in the last election were to have 
     some impact on the next election, uncovering historical facts 
     is not improper interference. Nor can House Democrats self-
     servingly equate asking any questions about Ukraine with 
     advocating that Ukraine, instead of Russia, interfered in 
     2016.\55\ Actors in more than one country can interfere in an 
     election at the same time, in different ways and for 
     different purposes. And there has been plenty of public 
     reporting to give reason to be suspicious about many 
     Ukrainians' conduct in 2016. Even one of House Democrats' own 
     star witnesses, Dr. Fiona Hill, acknowledged that Ukrainian 
     officials ``bet on Hillary Clinton winning the election,'' 
     and that ``they were trying to curry favor with the Clinton 
     campaign'' including by ``trying to collect information . . . 
     on Mr. Manafort and on other people as well.'' \56\ All of 
     that--and more--provides legitimate grounds for inquiry.
       2. It also would have been legitimate to mention the Biden-
     Burisma affair. Public reports indicate that then-Vice 
     President Biden threatened withholding U.S. loan guarantees 
     to secure the dismissal of a Ukrainian prosecutor even though 
     Biden was, at the time, operating under what appeared to be, 
     at the very least, a serious conflict of interest. The 
     prosecutor reportedly had been investigating Burisma--a 
     Ukrainian energy company notorious for corruption--and 
     Biden's son, Hunter, was sitting on Burisma's board.\57\ 
     Unless being son of the Vice President counted, Hunter had no 
     apparent qualifications to merit that seat, or to merit being 
     compensated (apparently) more richly than board members at 
     Fortune 100 energy giants like ConocoPhillips.\58\ In fact, 
     numerous career State Department and NSC employees agreed 
     that Hunter Biden's connection with Burisma created, at a 
     minimum, the appearance of a conflict of interest,\59\ and 
     The Washington Post reported as early as 2014 that ``[t]he 
     appointment of the [V]ice [P]resident's son to a Ukrainian 
     oil board looks nepotistic at best, nefarious at worst.'' 
     \60\ More than one official raised the issue with the Vice 
     President's office at the time, but the Vice President took 
     no action in response.\61\
       On those facts, it would have been appropriate to raise 
     this incident with President Zelensky. Ukraine cannot rid 
     itself of corruption if its prosecutors are always stymied. 
     Here, public reports suggested that Vice President Biden 
     played a role in derailing a legitimate inquiry while under a 
     monumental conflict of interest. If Biden were not running 
     for President, House Democrats would not argue that merely 
     raising the incident would have been improper. But former 
     Vice President Biden did not immunize his past conduct (or 
     his son's) from all scrutiny simply by declaring his 
     candidacy for the presidency.
       Importantly, even under House Democrats' theory, mentioning 
     the matter to President Zelensky would have been entirely 
     justified as long as there was a basis to think that would 
     advance the public interest. To defend merely asking a 
     question, the President would not have to show that Vice 
     President Biden (or his son) actually committed any 
     wrongdoing. By contrast, under their own theory of the case, 
     to show ``abuse of power,'' the House Managers would have to 
     prove that the inquiry could have no public purpose 
     whatsoever. They have no such evidence. The record shows it 
     would have been legitimate to mention the Biden-Burisma 
     affair.
     IV. The articles are structurally deficient and can only 
         result in acquittal
       The articles are also defective because each charges 
     multiple different acts as possible grounds for conviction. 
     The problem with offering such a menu of options is that, for 
     a valid conviction, the Constitution requires two-thirds of 
     Senators present to agree on the specific basis for 
     conviction. A vote on these articles, however, cannot ensure 
     that a two-thirds majority agreed on a particular ground for 
     conviction. Instead, such a vote could reflect an 
     amalgamation of votes resting on several different theories, 
     no single one of which would have garnered two-thirds support 
     if it had been presented separately. This structural 
     deficiency cannot be remedied by dividing the different 
     allegations within each article for voting, because

[[Page S316]]

     that is prohibited under Senate rules.\62\ The only 
     constitutional option is for the Senate to reject the 
     articles as framed and acquit the President.
       The Framers foresaw that the House might at times fall prey 
     to tempestuous partisan tempers. Alexander Hamilton 
     recognized that ``the persecution of an intemperate or 
     designing majority in the House of Representatives'' was a 
     real danger in impeachments,\63\ and Jefferson acknowledged 
     that impeachment provided ``the most formidable weapon for 
     the purposes of dominant faction that ever was contrived.'' 
     \64\ That is why the Framers entrusted the trial of 
     impeachments to the Senate. As Justice Story explained, the 
     Framers saw the Senate as a tribunal ``removed from popular 
     power and passions . . . and from the more dangerous 
     influence of mere party spirit,'' and guided by ``a deep 
     responsibility to future times.'' \65\ Now, perhaps as never 
     before, it is essential for the Senate to fulfill the role 
     Hamilton envisioned for it as a ``guard[] against the danger 
     of persecution, from the prevalency of a factious spirit'' in 
     the House.\66\
       The Senate should speedily reject these deficient Articles 
     of Impeachment and acquit the President. The only threat to 
     the Constitution that House Democrats have brought to light 
     is their own degradation of the impeachment process and 
     trampling of the separation of powers. Their fixation on 
     damaging the President has trivialized the momentous act of 
     impeachment, debased the standards of impeachable conduct, 
     and perverted the power of impeachment by turning it into a 
     partisan, election-year political tool. The consequences of 
     accepting House Democrats' diluted standards for impeachment 
     would reverberate far beyond this election year and do 
     lasting damage to our Republic. As Senator Lyman Trumbull, 
     one of the seven Republican Senators who crossed the aisle to 
     vote against wrongfully convicting President Andrew Johnson, 
     explained: ``Once [we] set the example of impeaching a 
     President for what, when the excitement of the hour shall 
     have subsided, will be regarded as insufficient causes . . . 
     no future President will be safe . . . . [A]nd what then 
     becomes of the checks and balances of the Constitution, so 
     carefully devised and so vital to its perpetuity? They are 
     all gone.'' \67\ It is the solemn duty of this body to be 
     the bulwark of the Constitution protecting against exactly 
     this result.
       Enough of the Nation's time and resources have been wasted 
     on House Democrats' partisan obsessions. The Senate should 
     bring a decisive end to these excesses so that Congress can 
     get back to its real job: working together with the President 
     to improve the lives of all Americans.


                               STANDARDS

       The extraordinary process invoked by House Democrats under 
     Article II, Section 4 of the Constitution is not the 
     constitutionally preferred means to determine who should lead 
     our country. It is a mechanism of last resort, reserved for 
     exceptional circumstances--not present here--in which a 
     President has engaged in unlawful conduct that strikes at the 
     core of our constitutional system of government.
     A. The Senate Must Decide All Questions of Law and Fact.
       The Constitution makes clear that an impeachment by the 
     House of Representatives is nothing more than an accusation. 
     The Articles of Impeachment approved by the House come to the 
     Senate with no presumption of regularity in their favor. On 
     each of the two prior occasions that the House adopted 
     articles of impeachment against a President, the Senate 
     refused to convict on them. Indeed, the Framers wisely 
     forewarned that the House could impeach for the wrong 
     reasons.\68\ That is why the Constitution entrusts the Senate 
     with the ``sole Power to try all Impeachments.'' \69\ Under 
     that charge, it is the Senate's constitutional duty to decide 
     for itself all matters of law and fact bearing upon this 
     trial.\70\ These decisions include whether the accusation 
     presented by House Democrats even rises to the level of 
     describing an impeachable offense, the standard of proof that 
     House Democrats must meet to prove their case, and whether 
     they have met this burden. As Rep. John Logan, a House 
     manager in President Johnson's impeachment trial, explained 
     ``all questions of law or of fact are to be decided in these 
     proceedings by the final vote'' \71\ of the Senate, and ``in 
     determining this general issue Senators must consider the 
     sufficiency or insufficiency in law or in fact of every 
     article of accusation.'' \72\
     B. An Impeachable Offense Requires a Violation of Established 
         Law that Inflicts Sufficiently Egregious Harm on the 
         Government that It Threatens to Subvert the Constitution.
       The President of the United States occupies a unique 
     position in the structure of our government. He is chosen 
     directly by the People through a national election to be the 
     head of an entire branch of government and Commander-in-Chief 
     of the armed forces and is entrusted with enormous 
     responsibilities for setting policies for the Nation. Whether 
     Congress should supplant the will expressed by tens of 
     millions of voters by removing the President from office is a 
     question of breathtaking gravity. Approaching that question 
     requires a clear understanding of the limits the Constitution 
     places on what counts--and what does not count--as an 
     impeachable offense.

         1. Text and Drafting History of the Impeachment Clause

       Fearful that the power of impeachment might be abused, and 
     recognizing that constitutional protections were required for 
     the Executive, the Framers crafted a limited power of 
     impeachment.\73\ The Constitution restricts impeachment to 
     enumerated offenses: ``Treason, Bribery, or other high Crimes 
     and Misdemeanors.'' \74\ Treason and bribery are well defined 
     offenses and are not at issue in this case. The operative 
     text here is the more general phrase ``other high Crimes and 
     Misdemeanors.'' The structure and language of the clause--the 
     use of the adjective ``other'' to describe ``high Crimes and 
     Misdemeanors'' in a list immediately following the specific 
     offenses ``Treason'' and ``Bribery''--calls for applying the 
     ejusdem generis canon of interpretation. This canon instructs 
     that `` `[w]here general words follow specific words in a 
     statutory enumeration, the general words are construed to 
     embrace only objects similar in nature to those objects 
     enumerated by the preceding specific words.'' \75\ Under that 
     principle, ``other high Crimes and Misdemeanors'' must be 
     understood to have the same qualities--in terms of 
     seriousness and their effect on the functioning of 
     government--as the crimes of ``Treason'' and ``Bribery.'' 
     \76\
       Treason is defined specifically in the Constitution and 
     ``consist[s] only in levying War against [the United States], 
     or in adhering to their Enemies, giving them Aid and 
     Comfort.'' \77\ This offense is ``a crime against and 
     undermining the very existence of the Government.'' \78\ 
     Bribery, like treason, is a serious offense against the 
     government that subverts the proper functioning of the state. 
     Blackstone, a ``dominant source of authority'' for the 
     Framers,\79\ called bribery an ``offense against public 
     justice.'' \80\ Professor Akhil Amar describes bribery as 
     ``secretly bending laws to favor the rich and powerful'' and 
     contends that in this context it ``involves official 
     corruption of a highly malignant sort, threatening the very 
     soul of a democracy committed to equality under the law.'' 
     \81\ According to Professor Philip Bobbitt, ``[l]ike treason, 
     the impeachable offense of bribery . . . must be an act that 
     actually threatens the constitutional stability and security 
     of the State.'' \82\ The text of the Constitution thus 
     indicates that the ``other'' crimes and misdemeanors that 
     qualify as impeachable offenses must be sufficiently 
     egregious that, like treason and bribery, they involve a 
     fundamental betrayal that threatens to subvert the 
     constitutional order of government.
       Treason and bribery are also, of course, offenses defined 
     by law. Each of the seven other references in the 
     Constitution to impeachment also supports the conclusion that 
     impeachments must be evaluated in terms of offenses against 
     settled law: The Constitution refers to ``Conviction'' for 
     impeachable offenses twice \83\ and ``Judgment in Cases of 
     Impeachment.'' \84\ It directs the Senate to ``try all 
     Impeachments'' \85\ and requires the Chief Justice's 
     participation when the President is ``tried.'' \86\ And it 
     implies impeachable offenses are ``Crimes'' and ``Offenses'' 
     in the Jury Trial Clause and the Pardon Clause, 
     respectively.\87\ These are all words that indicate 
     violations of established law.
       The use of the term ``high'' in the Impeachment Clause is 
     also significant, and was clearly deliberate. Under English 
     common law, ``high'' indicated crimes against the state; 
     Blackstone defined ``high treason'' to include only offenses 
     against ``the supreme executive power, or the king and his 
     government,'' calling it the ``highest civil crime.'' \88\
       In addition, ``high Crimes and Misdemeanors'' had a 
     technical meaning in English law,\89\ and there is evidence 
     that the Framers were aware of this ``limited,'' ``technical 
     meaning.'' \90\ In England, ``high Crimes and Misdemeanors'' 
     referred to offenses that could be the subject of impeachment 
     in parliament. No less an authority than Blackstone, however, 
     made clear that ``an impeachment before the lords by the 
     commons of Great Britain, in parliament, is a prosecution of 
     the already known and established law.'' \91\ As a result, 
     nothing in the Constitution's use of the term ``other high 
     Crimes and Misdemeanors'' suggests that impeachment under the 
     Constitution could reach anything other than a known offense 
     defined in existing law.
       Significantly, the records of the Constitutional Convention 
     also make clear that, in important respects, the Framers 
     intended the scope of impeachable offenses under the 
     Constitution to be much narrower than under English practice. 
     When the draft Constitution had limited the grounds for 
     impeachment to ``Treason, or bribery,'' \92\ George Mason 
     argued that the provision was too narrow because ``[a]ttempts 
     to subvert the Constitution may not be Treason'' and that the 
     clause ``will not reach many great and dangerous offenses.'' 
     \93\ He proposed the addition of ``maladministration,'' \94\ 
     which had been a ground for impeachment in English practice. 
     Madison opposed that change on the ground that ``[s]o vague a 
     term'' would make the President subject to ``a tenure during 
     [the] pleasure of the Senate,'' \95\ and the Convention 
     agreed on adding ``other high crimes & misdemeanors'' 
     instead.\96\
       By rejecting ``maladministration,'' the Framers 
     significantly narrowed impeachment under the Constitution and 
     made clear that mere differences of opinion, unpopular policy 
     decisions, or perceived misjudgments cannot constitutionally 
     be used as the basis for impeachment. Indeed, at various 
     earlier points during the Convention, drafts of the 
     Constitution had included as grounds for impeachment 
     ``malpractice or neglect of

[[Page S317]]

     duty'' \97\ and ``neglect of duty [and] malversation,'' \98\ 
     but the Framers rejected all of these formulations. The 
     ratification debates confirmed the point that differences of 
     opinion or differences over policy could not justify 
     impeachment. James Iredell warned delegates to North 
     Carolina's ratifying convention that ``[a] mere difference of 
     opinion might be interpreted, by the malignity of party, into 
     a deliberate, wicked action,'' \99\ and thus should not 
     provide the basis for impeachment. And Edmund Randolph 
     pointed out in the Virginia ratifying convention that ``[n]o 
     man ever thought of impeaching a man for an opinion.'' \100\
       Taken together, the text, drafting history, and debates 
     surrounding the Constitution make several points clear. 
     First, the debates ``make quite plain that the Framers, far 
     from proposing to confer illimitable power to impeach and 
     convict, intended to confer a limited power.'' \101\ As 
     Senator Leahy has put it, ``[t]he Framers purposely 
     restrained the Congress and carefully circumscribed [its] 
     power to remove the head of the co-equal Executive Branch.'' 
     \102\
       Second, the terminology of ``high Crimes and Misdemeanors'' 
     makes clear that an impeachable offense must be a violation 
     of established law. The Impeachment Clause did not confer 
     upon Congress a roving license to make up new standards of 
     conduct for government officials and to permit removal from 
     office merely on a conclusion that conduct was ``bad'' if 
     there was not an existing law that it violated.
       Third, by establishing that ``other'' impeachable offenses 
     must fall in the same class as the specific offenses of 
     ``treason'' and ``bribery,'' the Framers intended to 
     establish a requirement of particularly egregious conduct 
     threatening the constitutional order to justify impeachment. 
     Justice Story recognized impeachment was ``intended for 
     occasional and extraordinary cases'' only.\103\ For Professor 
     Bobbitt, ``[a]n impeachable offense is one that puts the 
     Constitution in jeopardy.'' \104\ Removal of the freely 
     elected President of the United States based on any lesser 
     standard would violate the plan of the Founders, who built 
     our government on the principle it would ``deriv[e] [its] 
     just powers from the consent of the governed.'' \105\

     2. The President's Unique Role in Our Constitutional Structure

       For at least two reasons, the President's unique role in 
     our constitutional structure buttresses the conclusion that 
     offenses warranting presidential impeachment must involve 
     especially egregious conduct that threatens to subvert the 
     constitutional order of government.
       First, conviction of a President raises particularly 
     profound issues under our constitutional structure because it 
     means overturning the democratically expressed will of the 
     people in the only national election in which all eligible 
     citizens participate. The impeachment power permits the 
     possibility that ``the legislative branch [will] essentially 
     cancel[] the results of the most solemn collective act of 
     which we as a constitutional democracy are capable: the 
     national election of a President.''\106\
       As even the House Managers have acknowledged, ``the issue'' 
     in a presidential impeachment trial ``is whether to overturn 
     the results of a national election, the free expression of 
     the popular will of the American people.'' \107\ That step 
     can be justified only by an offense crossing an exceptional 
     threshold. As Chairman Nadler has put it, ``[w]e must not 
     overturn an election and remove a President from office 
     except to defend our system of government or our 
     constitutional liberties against a dire threat . . . .'' 
     \108\ Especially where the American people are already 
     starting the process of voting for candidates for the next 
     presidential election, removing a President from office and 
     taking that decision away from the people requires meeting an 
     extraordinarily high standard. As then-Senator Biden 
     confirmed during President Clinton's trial, ``to remove a 
     duly elected president will unavoidably harm our 
     constitutional structure'' and ``[r]emoving the President 
     from office without compelling evidence would be historically 
     anti-democratic.'' \109\
       Any lesser standard would be inconsistent with the unique 
     importance of the President's role in the structure of the 
     government, the profound disruption and danger of uncertainty 
     that attend to removing a president from office, and the 
     grave implications of negating the will of the people 
     expressed in a national election.
       Second, because the President himself is vested with the 
     authority of an entire branch of the federal government, his 
     removal would cause extraordinary disruption to the Nation. 
     Article II, Section 1 declares in no uncertain terms that 
     ``[t]he executive Power shall be vested in a President of the 
     United States of America.'' \110\ As Justice Breyer has 
     explained, ``Article II makes a single President responsible 
     for the actions of the Executive Branch in much the same way 
     that the entire Congress is responsible for the actions of 
     the Legislative Branch, or the entire Judiciary for those of 
     the Judicial Branch.'' \111\ As a result, ``the application 
     of the Impeachment Clause to the President of the United 
     States involves the uniquely solemn act of having one branch 
     essentially overthrow another.'' \112\ It also carries the 
     risk of profound disruption for the operation of the federal 
     government.
       As ``the chief constitutional officer of the Executive 
     branch,'' the President is ``entrusted with supervisory and 
     policy responsibilities of utmost discretion and 
     sensitivity.'' \113\ Because he is assigned responsibility to 
     ``take Care that the Laws be faithfully executed,'' \114\ all 
     federal law enforcement depends, ultimately, on the direction 
     of the President. In addition, he is the Commander-in-Chief 
     of the armed forces \115\ and ``the sole organ of the federal 
     government in the field of international relations.'' \116\ 
     The foreign policy of the Nation is determined primarily by 
     the President. His removal would necessarily create 
     uncertainty and pose unique risks for U.S. interests around 
     the globe. As OLC put it, removal of the President would be 
     ``politically and constitutionally a traumatic event,'' \117\ 
     and Senator Bob Graham rightly called it ``one of the most 
     disruptive acts imaginable in a democracy'' during President 
     Clinton's trial.\118\

                3. Practice Under the Impeachment Clause

       The practical application of the Impeachment Clause by 
     Congress supports the conclusion that an impeachable offense 
     requires especially egregious conduct that threatens the 
     constitutional order and, specifically, that it requires a 
     violation of established law. The extraordinary threshold 
     required for impeachment is evidenced by the fact that, in 
     over two centuries under our Constitution, the House has 
     impeached a President only twice. In each case, moreover, the 
     Senate found the charges brought by the House insufficient to 
     warrant removal from office.
       In addition, until now, even in the articles of impeachment 
     that the Senate found insufficient, the House has never 
     impeached a President on charges that did not include a 
     violation of established law. President Clinton was impeached 
     on charges that included perjury and obstruction of 
     justice, both felonies under federal law.\119\ Similarly, 
     in the near-impeachment of President Nixon, the articles 
     of impeachment approved by the House Judiciary Committee 
     included multiple violations of law.\120\ Article I 
     alleged obstruction of justice.\121\ And Article II 
     asserted numerous legal breaches.\122\
       The impeachment of Andrew Johnson proves the same point. In 
     1867, the House Judiciary Committee recommended articles of 
     impeachment against President Johnson. The articles, however, 
     did not allege any violation of law. Largely as a result of 
     that fact, the Committee could not secure approval for them 
     from a majority of the House. The minority report from the 
     Committee arguing against adoption of the articles of 
     impeachment explained that ``[t]he House of Representatives 
     may impeach a civil officer, but it must be done according to 
     law. It must be for some offence known to the law, and not 
     created by the fancy of the members of the House.'' \123\ 
     Rep. James F. Wilson argued the position of the minority 
     report on the House floor, explaining that ``no civil officer 
     of the United States can be lawfully impeached except for a 
     crime or misdemeanor known to the law.'' \124\ As one 
     historian has explained, ``[t]he House had refused to impeach 
     Andrew Johnson . . . at least in part because many 
     representatives did not believe he had committed a specific 
     violation of law.'' \125\ It was only after President Johnson 
     violated the Tenure of Office Act, a law passed by Congress, 
     that he was successfully impeached.\126\
       Even if judicial impeachments have been based on charges 
     that do not involve a criminal offense or violation of 
     statute,\127\ that would provide no sound basis for diluting 
     the standards for presidential impeachment. Textually, the 
     Constitution's Good Behavior Clause alters the standard for 
     the impeachment of judges.\128\ In addition, for all the 
     reasons outlined above, the President's unique role in the 
     constitutional structure sets him apart and warrants more 
     rigorous standards for impeachment. ``When Senators remove 
     one of a thousand federal judges (or even one of nine 
     justices), they are not transforming an entire branch of 
     government. But that is exactly what happens when they oust 
     America's one and only President, in whom all executive power 
     is vested by the first sentence of Article II.'' \129\ Unlike 
     a presidential impeachment inquiry, impeachment of a federal 
     judge ``does not paralyze the Nation'' or cast doubt on the 
     direction of the country's domestic and foreign policy.\130\ 
     Similarly, ``[t]he grounds for the expulsion of the one 
     person elected by the entire nation to preside over the 
     executive cannot be the same as those for one member of the 
     almost four-thousand-member federal judiciary.'' \131\ Thus, 
     as then-Senator Biden recognized: ``The constitutional 
     scholarship overwhelmingly recognizes that the fundamental 
     structural commitment to a separation of powers requires [the 
     Senate] to view the President as different than a Federal 
     judge.'' \132\ Indeed, ``our history establishes that, as 
     applied, the constitutional standard for impeaching the 
     President has been distinctive, and properly so.'' \133\

 C. The Senate Cannot Convict Unless It Finds that the House Managers 
      Have Proved an Impeachable Offense Beyond a Reasonable Doubt

       Given the profound implications of removing a duly elected 
     president from office, an exceptionally demanding standard of 
     proof must apply in a presidential impeachment trial.\134\ 
     Senators should convict on articles of impeachment against a 
     President only if they find that the House Managers have 
     carried their burden of proving that the President committed 
     an impeachable offense beyond a reasonable doubt.
       As Senator Russ Feingold recognized in the Clinton 
     impeachment, ``[i]n making a decision of this magnitude, it 
     is best not to err

[[Page S318]]

     at all. If we must err, however, we should err on the side of 
     . . . respecting the will of the people.'' \135\ Democrat and 
     Republican Senators alike applied the beyond a reasonable 
     doubt standard during President Clinton's impeachment 
     trial.\136\ As Senator Barbara Mikulski put it then: ``The 
     U.S. Senate must not make the decision to remove a President 
     based on a hunch that the charges may be true. The strength 
     of our Constitution and the strength of our Nation dictate 
     that [the Senate] be sure--beyond a reasonable doubt.'' \137\

D. The Senate May Not Consider Allegations Not Charged in the Articles 
                             of Impeachment

       Under the Constitution, the House is given the ``sole Power 
     of Impeachment'' and the Senate is given the ``sole Power to 
     try all Impeachments.'' \138\ An impeachment is literally a 
     ``charge'' of particular wrongdoing.\139\ Thus, under the 
     division of responsibility in the Constitution, the Senate 
     can conduct a trial solely on the charges specified in 
     articles of impeachment approved by a vote of the House and 
     presented to the Senate. The Senate cannot expand the scope 
     of a trial to consider mere assertions appearing in House 
     reports that the House did not include in the articles of 
     impeachment submitted to a vote. Similarly, House Managers 
     trying the case in the Senate must be confined to the 
     specific conduct alleged in the Articles approved by the 
     House.
       These restrictions follow both from the plain terms of the 
     Constitution limiting the Senate to trying an ``impeachment'' 
     framed by the House and from elementary principles of due 
     process. ``[T]he senator's role is solely one of acting on 
     the accusations (Articles of Impeachment) voted by the House 
     of Representatives. The Senate cannot lawfully find the 
     president guilty of something not charged by the House, any 
     more than a trial jury can find a defendant guilty of 
     something not charged in the indictment.'' \140\ ``No 
     principle of procedural due process is more clearly 
     established than that notice of the specific charge, and a 
     chance to be heard in a trial of the issues raised by that 
     charge, if desired, are among the constitutional rights of 
     every accused.'' \141\ As the Supreme Court has explained, it 
     has been the rule for over 130 years that ``a court cannot 
     permit a defendant to be tried on charges that are not made 
     in the indictment against him.'' \142\ Doing so is ``fatal 
     error.'' \143\
       Under the same principles of due process, the Senate must 
     similarly refuse to consider any uncharged allegations as a 
     basis for conviction.


                           PROCEDURAL HISTORY

       House Democrats have focused these proceedings on a 
     telephone conversation between President Trump and President 
     Zelensky of Ukraine on July 25, 2019.\144\ At some unknown 
     time shortly after that call, a staffer in the Intelligence 
     Community (IC)--who had no first-hand knowledge of the call--
     approached the staff of Chairman Adam Schiff on the House 
     Permanent Select Committee on Intelligence (HPSCI) raising 
     complaints about the call.\145\ Although it is known that 
     Chairman Schiff's staff provided the IC staffer some 
     ``guidance,'' \146\ the extent of the so-called 
     whistleblower's coordination with Chairman Schiff's staff 
     remains unknown to this day.
       The IC staffer retained counsel, including an attorney who 
     had announced just days after President Trump took office 
     that he supported a ``coup'' and ``rebellion'' to remove the 
     President from office.\147\
       On August 12, 2019, the IC staffer filed a complaint about 
     the July 25 telephone call with the Inspector General of the 
     IC.\148\ The Inspector General found that there was ``some 
     indicia of an arguable political bias on the part of [the so-
     called whistleblower] in favor of a rival political 
     candidate.'' \149\
       On September 24, 2019, Speaker Nancy Pelosi unilaterally 
     announced at a press conference that ``the House of 
     Representatives is moving forward with an official 
     impeachment inquiry'' \150\ based on the anonymous complaint 
     about the July 25 telephone call. There was no vote by the 
     House to authorize such an inquiry.
       On September 25, pursuant to a previous announcement,\151\ 
     the President declassified and released the complete record 
     of the July 25 call.\152\
       On September 26, HPSCI held its first hearing regarding the 
     so-called whistleblower complaint.\153\ And just one week 
     later, on October 3, Chairman Schiff began a series of 
     secret, closed-door hearings regarding the complaint.\154\ 
     The President and his counsel were not permitted to 
     participate in any of these proceedings.
       On October 31, after five weeks of hearings, House 
     Democrats finally authorized an impeachment inquiry when the 
     full House voted to approve House Resolution 660.\155\ By its 
     terms, the Resolution did not purport to retroactively 
     authorize investigative efforts before October 31.\156\
       On November 13, HPSCI held the first of seven public 
     hearings featuring some of the witnesses who had already 
     testified in secret. At this stage, too, the President and 
     his counsel were denied any opportunity to participate. HPSCI 
     released a report on December 3, 2019.\157\
       On December 4, the House Judiciary Committee held its first 
     hearing, which featured four law professors, three of whom 
     were selected by Democrats.\158\
       The next day, December 5, Speaker Pelosi announced the 
     outcome of the Judiciary Committee's proceedings and directed 
     Chairman Jerrold Nadler to draft articles of 
     impeachment.\159\
       On December 9, four days after Speaker Pelosi announced 
     that articles of impeachment would be drafted, the Judiciary 
     Committee held its second and last hearing, which featured 
     presentations solely from staff members from HPSCI and the 
     Judiciary Committee.\160\ The House Judiciary Committee did 
     not hear from any fact witnesses at any time.
       On December 10, Chairman Jerrold Nadler offered two 
     articles of impeachment for the Judiciary Committee's 
     consideration,\161\ and the Committee approved the articles 
     on December 13 on a party-line vote.\162\
       On December 18, a mere 85 days after the press conference 
     purportedly launching the inquiry, House Democrats completed 
     the fastest presidential impeachment inquiry in history and 
     adopted the Articles of Impeachment over bipartisan 
     opposition.\163\
       House Democrats justified their unseemly haste by claiming 
     they had to move forward ``without delay'' because the 
     President would allegedly ``continue to threaten the Nation's 
     security, democracy, and constitutional system if he is 
     allowed to remain in office.'' \164\ In a remarkable 
     reversal, however, as soon as they had voted, they decided 
     that there was no urgency at all. House Democrats took a 
     leisurely four weeks to complete the ministerial act of 
     transmitting the articles to the Senate--more than three 
     times longer than the entire length of proceedings before the 
     House Judiciary Committee.
       The Senate now has the ``sole Power to try'' the Articles 
     of Impeachment transmitted by the House.\165\


The Articles Should be Rejected and the President Should Immediately be 
                               Acquitted.

     I. The Articles Fail to State Impeachable Offenses as a 
         Matter Of Law.

 A. House Democrats' Novel Theory of ``Abuse of Power'' Does Not State 
an Impeachable Offense and Would Do Lasting Damage to the Separation of 
                                 Powers

       House Democrats' novel conception of ``abuse of power'' as 
     a supposedly impeachable offense is constitutionally 
     defective. It supplants the Framers' standard of ``high 
     Crimes and Misdemeanors'' \166\ with a made-up theory that 
     the President can be impeached and removed from office under 
     an amorphous and undefined standard of ``abuse of power.'' 
     The Framers adopted a standard that requires a violation of 
     established law to state an impeachable offense. By contrast, 
     in their Articles of Impeachment, House Democrats have not 
     even attempted to identify any law that was violated. 
     Moreover, House Democrats' theory in this case rests on the 
     radical assertion that the President could be impeached and 
     removed from office entirely for his subjective motives--that 
     is, for undertaking permissible actions for supposedly 
     ``forbidden reasons.'' \167\ That unprecedented test is so 
     flexible it would vastly expand the impeachment power beyond 
     constitutional limits and would permanently weaken the 
     Presidency by effectively permitting impeachments based on 
     policy disagreements.
       House Democrats cannot salvage their unprecedented ``abuse 
     of power'' standard with fuzzy claims that the Framers 
     particularly intended impeachment to address ``foreign 
     entanglements'' and ``corruption of elections.'' \168\ Those 
     assertions are makeweights that distort history and add no 
     legitimacy to the radical theory of impeachment based on 
     subjective motive alone.
       Under the Constitution, impeachable offenses must be 
     defined under established law. And they must be based on 
     objective wrongdoing, not supposed subjective motives dreamt 
     up by a hostile faction in the House and superimposed onto a 
     President's entirely lawful conduct.

     1. House Democrats' Novel Theory of ``Abuse of Power'' as an 
    Impeachable Offense Subverts Constitutional Standards and Would 
                   Permanently Weaken the Presidency

       House Democrats' theory that the President can be impeached 
     and removed from office under a vaguely defined concept of 
     ``abuse of power'' would vastly expand the impeachment power 
     beyond the limits set by the Constitution and should be 
     rejected by the Senate.

(a) House Democrats' made-up ``abuse of power'' standard fails to state 
  an impeachable offense because it does not rest on violation of an 
                            established law

       House Democrats' claim that the Senate can remove a 
     President from office for running afoul of some ill-defined 
     conception of ``abuse of power'' finds no support in the text 
     or history of the Impeachment Clause. As explained 
     above,\169\ by limiting impeachment to cases of ``Treason, 
     Bribery, or other high Crimes and Misdemeanors,'' \170\ the 
     Framers restricted impeachment to specific offenses against 
     ``already known and established law.'' \171\  That was a 
     deliberate choice designed to constrain the power of 
     impeachment.\172\ Restricting impeachment to offenses 
     established by law provided a crucial protection for the 
     independence of the Executive from what James Madison called 
     the ``impetuous vortex'' of legislative power.\173\ As many 
     constitutional scholars have recognized, ``the Framers were 
     far more concerned with protecting the presidency from the 
     encroachments of Congress . . . than they were

[[Page S319]]

     with the potential abuse of executive power.'' \174\ The 
     impeachment power necessarily implicated that concern. If the 
     power were too expansive, the Framers feared that the 
     Legislative Branch may ``hold [impeachments] as a rod over 
     the Executive and by that means effectually destroy his 
     independence.'' \175\ One key voice at the Constitutional 
     Convention, Gouverneur Morris, warned that, as they crafted a 
     mechanism to make the President ``amenable to Justice,'' the 
     Framers ``should take care to provide some mode that will not 
     make him dependent on the Legislature.'' \176\ To limit the 
     impeachment power, Morris argued that only ``few'' ``offences 
     . . . ought to be impeachable,'' and the ``cases ought to be 
     enumerated & defined.'' \177\
       Indeed, the debates over the text of the Impeachment Clause 
     particularly reveal the Framers' concern that ill-defined 
     standards could give free rein to Congress to utilize 
     impeachment to undermine the Executive. As explained 
     above,\178\ when ``maladministration'' was proposed as a 
     ground for impeachment, it was rejected based on Madison's 
     concern that ``[s]o vague a term will be equivalent to a 
     tenure during [the] pleasure of the Senate.'' \179\ Madison 
     rightly feared that a nebulous standard could allow Congress 
     to use impeachment against a President based merely on policy 
     differences, making it function like a parliamentary no-
     confidence vote. That would cripple the independent Executive 
     the Framers had crafted and recreate the Parliamentary system 
     they had expressly rejected. Circumscribing the impeachment 
     power to reach only existing, defined offenses guarded 
     against such misuse of the authority.\180\
       As Luther Martin, who had been a delegate at the 
     Constitutional Convention, summarized the point at the 
     impeachment trial of Justice Samuel Chase in 1804, ``[a]dmit 
     that the House of Representatives have a right to impeach for 
     acts which are not contrary to law, and that thereon the 
     Senate may convict and the officer be removed, you leave your 
     judges and all your other officers at the mercy of the 
     prevailing party.'' \181\ The Framers prevented that 
     dangerous result by limiting impeachment to defined offenses 
     under the law.
       House Democrats cannot reconcile their amorphous ``abuse of 
     power'' standard with the constitutional text simply by 
     asserting that, ``[t]o the founding generation, abuse of 
     power was a specific, well-defined offense.'' \182\ In fact, 
     they conspicuously fail to provide any citation for that 
     assertion. Nowhere have they identified any contemporaneous 
     definition delimiting this purportedly ``well-defined'' 
     offense.
       Nor can House Democrats shore up their theory by invoking 
     English practice.\183\ According to House Democrats, 400 
     years of parliamentary history suggests that the particular 
     offenses charged in English impeachments can be abstracted 
     into several categories of offenses, including one involving 
     abuse of power.\184\ From there, they jump to the conclusion 
     that ``abuse of power'' itself can be treated as an offense 
     and that any fact pattern that could be described as showing 
     abuse of power can be treated as an impeachable offense. But 
     that entire methodology is antithetical to the approach the 
     Framers took in defining the impeachment power. The Framers 
     sought to confine impeachable offenses within known bounds to 
     protect the Executive from arbitrary exercises of power by 
     Congress. Indeed, the Framers expressly rejected vague 
     standards such as ``maladministration'' that had been used in 
     England in order to constrain the impeachment power within 
     defined limits. Deriving general categories from ancient 
     English cases and using those categories as the labels for 
     new, more nebulously defined purported ``offenses'' is 
     precisely counter to the Framers' approach. As the Republican 
     minority on the House Judiciary Committee in the Nixon 
     impeachment inquiry explained, ``[t]he whole tenor of the 
     Framers' discussions, the whole purpose of their many careful 
     departures from English impeachment practice, was in the 
     direction of limits and of standards.'' \185\
       House Democrats' theory also has no grounding in the 
     history of presidential impeachments. Until now, the House of 
     Representatives has never impeached a President of the United 
     States without alleging a violation of law--indeed, a crime. 
     The articles of impeachment against President Clinton 
     specified charges of perjury and obstruction of justice, both 
     felonies under federal law.\186\ In the Nixon impeachment 
     inquiry, the articles approved by the House Judiciary 
     Committee accused the President of obstructing justice, among 
     multiple other violations of the law.\187\ And as explained 
     above,\188\ the impeachment of President Johnson provides the 
     clearest evidence that a presidential impeachment requires 
     alleged violations of existing law. When the House Judiciary 
     Committee recommended impeaching Johnson in 1867 based on 
     allegations that included no violations of law, the House 
     rejected the recommendation.\189\ A majority in the House was 
     persuaded by the arguments of the minority on the Judiciary 
     Committee, who argued that ``[t]he House of Representatives 
     may impeach a civil officer, but it must be done according to 
     law. It must be for some offence known to the law, and not 
     created by the fancy of the members of the House.'' \190\ 
     Congress did not impeach President Johnson until the 
     following year, when he was impeached for violating the 
     Tenure of Office Act.\191\ The history of presidential 
     impeachments provides no support for House Democrats' vague 
     ``abuse of power'' charge.

   (b) House Democrats' unprecedented theory of impeachable offenses 
    defined by subjective intent alone would permanently weaken the 
                               presidency

       House Democrats' conception of ``abuse of power'' is 
     especially dangerous because it rests on the even more 
     radical claim that a President can be impeached and removed 
     from office solely for doing something he is allowed to do, 
     if he did it for the ``wrong'' subjective reasons. Under this 
     view, impeachment can turn entirely on ``whether the 
     President's real reasons, the ones actually in his mind at 
     the time, were legitimate.'' \192\ That standard is so 
     malleable that it would permit a partisan House--like this 
     one--to attack virtually any presidential decision by 
     questioning a President's motives. By eliminating any 
     requirement for wrongful conduct, House Democrats have 
     tried to make thinking the wrong thoughts an impeachable 
     offense.
       House Democrats' theory of impeachment based on subjective 
     motive alone is unworkable and constitutionally 
     impermissible.
       First, by making impeachment turn on nearly impossible 
     inquiries into the subjective intent behind entirely lawful 
     conduct, House Democrats' standard would open virtually every 
     presidential decision to partisan attack based on questioning 
     a President's motives. As courts have repeatedly observed, 
     ``[i]nquiry into the motives of elected officials can be both 
     difficult and undesirable, and such inquiry should be avoided 
     when possible.'' \193\ Thus, for example, courts will not 
     invalidate laws within Congress's constitutional authority 
     based on allegations about legislators' motives.\194\ As 
     constitutional historian Raoul Berger has observed, this 
     principle ``is equally applicable to executive action within 
     statutory or constitutional limits.'' \195\ Even House 
     Democrats' own expert, Professor Michael Gerhardt, has 
     previously explained (in defending the Obama Administration 
     against charges of abuse of power) that ``the President has 
     the ability to . . . strongly push back against any inquiry 
     into either the motivations or support for his actions.'' 
     \196\
       The Framers did not intend to expand the impeachment power 
     infinitely by allowing Congress to attack objectively lawful 
     presidential conduct based solely on unwieldy inquiries into 
     subjective intent. Under the Framers' plan, impeachment was 
     intended to apply to objective wrongdoing as identified by 
     offenses defined under existing law. As noted above, the 
     Framers rejected maladministration as a ground for 
     impeachment precisely because it was ``[s]o vague a term.'' 
     \197\ Instead, they settled on ``high Crimes and 
     Misdemeanors,'' \198\ as a term with a ``limited and 
     technical meaning.'' \199\ ``[H]igh Crimes and 
     Misdemeanors,'' as well as ``Treason'' and ``Bribery,'' \200\ 
     all denote objectively wrongful conduct as defined by 
     existing law. Each of the seven other references in the 
     Constitution to impeachment also supports the conclusion that 
     impeachments must be evaluated in terms of offenses against 
     settled law: The Constitution refers to ``Conviction'' for 
     impeachable offenses twice \201\ and ``Judgment in Cases of 
     Impeachment.'' \202\ It directs the Senate to ``try all 
     Impeachments'' \203\ and requires the Chief Justice's 
     participation when the President is ``tried.'' \204\ And it 
     implies impeachable offenses are ``Crimes'' and ``Offenses'' 
     in the Jury Trial Clause and the Pardon Clause, 
     respectively.\205\ These are all words that indicate 
     violations of established law. The Framers' words limited the 
     impeachment power and, in particular, sought to ensure that 
     impeachment could not be used to attack a President based on 
     mere policy differences.
       Given their apprehensions about misuse of the impeachment 
     power, it is inconceivable that the Framers crafted a purely 
     intent-based impeachment standard. Such a standard would be 
     so vague and malleable that entirely permissible actions 
     could lead to impeachment of a President (and potentially 
     removal from office) based solely on a hostile Congress's 
     assessment of the President's subjective motives. If that 
     were the rule, any President's political opponents could take 
     virtually any of his actions, mischaracterize his motives 
     after the fact, and misuse impeachment as a tool for 
     political opposition instead of as a safeguard against 
     egregious presidential misconduct.\206\ As Republicans on the 
     House Judiciary Committee during the Nixon impeachment 
     inquiry rightly explained, ``[a]n impeachment power exercised 
     without extrinsic and objective standards would be tantamount 
     to the use of bills of attainder and ex post facto laws, 
     which are expressly forbidden by the Constitution and are 
     contrary to the American spirit of justice.'' \207\
       House Democrats justify their focus on subjective motives 
     based largely on a cherry-picked snippet from a statement 
     James Iredell made in the North Carolina ratification 
     debates.\208\ Iredell observed that ``the President would be 
     liable to impeachment [if] . . . he had acted from some 
     corrupt motive or other.'' \209\ But nothing in that general 
     statement suggests that Iredell--let alone the Framers or the 
     hundreds of delegates who ratified the Constitution in the 
     states--subscribed to House Democrats' current theory 
     treating impeachment as a roving license for Congress to 
     attack a President's lawful actions based on subjective 
     motive alone. To the contrary, in the very same speech, 
     Iredell himself warned against the dangers of allowing 
     impeachment based on assessments of subjective motive. He 
     explained that there would often be divisions

[[Page S320]]

     between political parties and that, due to a lack of 
     ``charity,'' each might often ``attribute every opposition'' 
     to its own views ``to an ill motive.'' \210\ In that 
     environment, he warned, ``[a] mere difference of opinion 
     might be interpreted, by the malignity of party, into a 
     deliberate, wicked action.'' \211\ That, he argued, should 
     not be a basis for impeachment.\212\
       House Democrats' assertions that past presidential 
     impeachments provide support for their made-up impeachment-
     based-on-subjective-motives-alone theory are also wrong.\213\ 
     Contrary to their claims, neither the Nixon impeachment 
     inquiry nor the impeachment of President Johnson supports 
     their assertions.
       In the Nixon impeachment inquiry, none of the articles 
     recommended by the House Judiciary Committee was labeled 
     ``abuse of power'' or framed the charge in those terms. And 
     it is simply wrong to say that the theory underlying the 
     proposed articles was that President Nixon had taken 
     permissible actions with the wrong subjective motives. 
     Article I alleged President Nixon obstructed justice, a clear 
     violation of law.\214\ And Article II asserted numerous 
     breaches of the law. It claimed that President Nixon 
     ``violat[ed] the constitutional rights of citizens,'' 
     ``contraven[ed] the laws governing agencies of the executive 
     branch,'' and ``authorized and permitted to be maintained a 
     secret investigative unit within the office of the President 
     . . . which unlawfully utilized the resources of the Central 
     Intelligence Agency, [and] engaged in covert and unlawful 
     activities.'' \215\ Those allegations did not turn on 
     describing permissible conduct that had simply been done with 
     the wrong subjective motives.\216\ Instead, they charged 
     unlawful conduct.\217\
       House Democrats' reliance on the Johnson impeachment fares 
     no better. According to House Democrats, the Johnson 
     impeachment supports their concocted impeachment-based-on-
     subjective-motives theory under the following tortured logic: 
     The articles of impeachment actually adopted by the House 
     charged the violation of the Tenure of Office Act.\218\ But 
     that was not the ``real'' reason the House sought to remove 
     President Johnson. The real reason was that he had undermined 
     Reconstruction. And, in House Democrats' view, his improper 
     desire to thwart Reconstruction was actually a better reason 
     to impeach him.\219\ For support, House Democrats cite a 
     recent book co-authored by one of their own staffers (Joshua 
     Matz) and Laurence Tribe.\220\ This is nonsense. Nothing in 
     the Johnson impeachment involved charging the President with 
     taking objectively permissible action for the wrong 
     subjective reasons. Johnson was impeached for violating a law 
     passed by Congress.\221\ Moreover, President Johnson was 
     acquitted, despite whatever subjective motives he might have 
     had. House Democrats cannot conjure a precedent out of thin 
     air by simply imagining that the Johnson impeachment articles 
     said something other than what they said.\222\
       If the Johnson impeachment established any precedent 
     relevant here, it is that the House refused to impeach the 
     President until he clearly violated the letter of the law. As 
     one historian has explained, despite widespread anger among 
     Republicans about President Johnson's actions undermining 
     Reconstruction, until Johnson violated the Tenure of Office 
     Act, ``[t]he House had refused to impeach [him] . . . at 
     least in part because many representatives did not believe he 
     had committed a specific violation of law.'' \223\
       Second, House Democrats' theory raises particular dangers 
     because it makes ``personal political benefit'' one of the 
     ``forbidden reasons'' for taking government action.\224\ 
     Under that standard, a President could potentially be 
     impeached and removed from office for taking any action with 
     his political interests in view. In a representative 
     democracy, however, elected officials almost always consider 
     the effect that their conduct might have on the next 
     election. And there is nothing wrong with that.
       By making ``personal political gain'' an illicit motive for 
     official action, House Democrats' radical theory of 
     impeachment would permit a partisan Congress to remove 
     virtually any President by questioning the extent to which 
     his or her action was motivated by electoral considerations 
     rather than the ``right'' policy motivation. None of this has 
     any basis in the constitutional text, which specifies 
     particular offenses as impeachable conduct. Just as 
     importantly, under such a rule, impeachments would turn on 
     unanswerable questions that ultimately reduce to policy 
     disputes--exactly what the Framers saw as an impermissible 
     basis for impeachment. For example, if it is impeachable 
     conduct to act with too much of a view toward electoral 
     results, how much of a focus on electoral results is too 
     much, even assuming that Congress could accurately 
     disaggregate a President's actual motives? And how does one 
     measure presidential motives against some unknowable standard 
     of the ``right'' policy result uninfluenced by considerations 
     of political gain? That question, of course, quickly boils 
     down to nothing more than a dispute about the ``right'' 
     policy in the first place. None of this provides any 
     permissible basis for impeaching a President.
       Third, aptly demonstrating why all of this leads to 
     unconstitutional results, House Democrats have invented 
     standards for identifying supposedly illicit presidential 
     motives that turn the Constitution upside down. According to 
     House Democrats, they can show that President Trump acted 
     with illicit motives because, in their view, the President 
     supposedly ``disregarded United States foreign policy towards 
     Ukraine,'' \225\ ignored the ``official policy'' \226\ that 
     he had been briefed on, and ``ignored, defied, and confounded 
     every agency within the Executive Branch'' with his decisions 
     on Ukraine.\227\ These assertions are preposterous and 
     dangerous. They fundamentally misunderstand the assignment of 
     power under the Constitution.
       Article II of the Constitution states that ``the executive 
     Power shall be vested in a President''--not Executive Branch 
     staff.\228\ The vesting of the Executive Power in the 
     President makes him ``the sole organ of the nation in its 
     external relations, and its sole representative with foreign 
     nations.'' \229\ He sets foreign policy for the Nation, and 
     in ``this vast external realm,'' the ``President alone has 
     the power to speak . . . as a representative of the nation.'' 
     \230\ The Constitution assigns him control over foreign 
     policy precisely to ensure that the Nation speaks with one 
     voice.\231\ His decisions are authoritative regardless of the 
     judgments of the unelected bureaucrats participating in an 
     inter-agency process that exists solely to facilitate his 
     decisions, not to make decisions for him. Any theory of an 
     impeachable offense that turns on ferreting out supposedly 
     ``constitutionally improper'' motives by measuring the 
     President's policy decisions against a purported 
     ``interagency consensus'' formed by unelected staff is a 
     transparent and impermissible inversion of the constitutional 
     structure.
       It requires no leap of imagination to see the absurd 
     consequences that would follow from House Democrats' theory. 
     Imagine a President who, in an election year, determined to 
     withdraw troops from an overseas deployment to have them home 
     by Christmas. Should hostile lawmakers be able to seek 
     impeachment and claim proof of ``illicit motive'' because an 
     alleged ``interagency consensus'' showed that the ``real'' 
     national security interests of the United States required 
     keeping those troops in place? Manufacturing an impeachment 
     out of such an assertion ought to be dismissed out of hand.
       House Democrats' abuse-of-power theory is also profoundly 
     anti-democratic. In assigning the Executive Power to the 
     President, the Constitution ensures that power is exercised 
     by a person who is democratically responsible to the people 
     through a quadrennial election.\232\ This ensures that the 
     people themselves will regularly and frequently have a say in 
     the direction of the Nation's policy, including foreign 
     policy. As a result, removing a President on the ground that 
     his foreign policy decisions were allegedly based on 
     ``illicit motives''--because they failed to conform to a 
     purported ``consensus'' of career bureaucrats--would 
     fundamentally subvert the democratic principles at the core 
     of our Constitution.
       This very impeachment shows how anti-democratic House 
     Democrats' theory really is. Millions of Americans voted for 
     President Trump precisely because he promised to disrupt the 
     foreign policy status quo. He promised a new, ``America 
     First'' foreign policy that many in the Washington 
     establishment derided. And the President has delivered, 
     bringing fresh and successful approaches to foreign policy in 
     a host of areas, including relations with NATO, China, 
     Israel, and North Korea. In particular, with respect to 
     Ukraine and elsewhere, his foreign policy has focused on 
     ensuring that America does not shoulder a disproportionate 
     burden for various international missions, that other 
     countries do their fair share, and that taxpayer dollars are 
     not squandered. House Democrats' theory that a purported 
     inter-agency ``consensus'' among career bureaucrats can be 
     used to show improper motive is an affront to the tens of 
     millions of American citizens who voted for President Trump's 
     foreign policy and not a continuation of the Washington 
     establishment's policy preferences.

 2. House Democrats' assertions that the framers particularly intended 
      impeachment to guard against ``foreign entanglements'' and 
    ``corruption'' of elections are makeweights that distort history

       House Democrats try to shore up their made-up theory of 
     abuse of power by pretending that anything related to what 
     they call ``foreign entanglements'' or elections strikes at 
     the core of impeachment.\233\ This novel accounting of the 
     concerns animating the impeachment power conveniently allows 
     House Democrats to claim that their allegations just happen 
     to raise the perfect storm of impeachable conduct, as if 
     their accusations show that ``President Trump has realized 
     the Framers' worst nightmare.'' \234\ That is preposterous on 
     its face. The Framers were concerned about the possibility of 
     treason and the danger that foreign princes with vast 
     treasuries at their disposal might actually buy off the Chief 
     Executive of a fledgling, debt-ridden republic situated on 
     the seaboard of a vast wilderness continent--most of which 
     was still claimed by European powers eager to advance their 
     imperial interests. Their worst nightmare was not the 
     President of the United States-as-superpower having an 
     innocuous conversation with the leader of a comparatively 
     small European republic and disclosing the conversation for 
     all Americans to see.
       To peddle their distortion of history, House Democrats 
     cobble together snippets from the Framers' discussions on 
     various different subjects and try to portray them as if

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     they define the contours of impeachable offenses. As 
     explained above, the Framers intended a limited impeachment 
     power. But when House Democrats find the Framers raising 
     concerns about any risks to the new government, they leap to 
     the conclusion that those concerns must identify impeachable 
     offenses. Such transparently results-driven historical 
     analysis is baseless and provides no support for House 
     Democrats' drive to remove the President.
       First, House Democrats mangle history in offering ``foreign 
     entanglements'' as a type of impeachable offense. Their 
     approach confuses two different concepts--entangling the 
     country in alliances and fears of foreign governments buying 
     influence--to create a false impression that there is 
     something insidious about anything involving a foreign 
     connection that should make it a particularly ripe ground for 
     impeachment.
       When the Framers spoke about foreign ``entanglements'' they 
     had a particular danger in mind. That was the danger of the 
     young country becoming ensnared in alliances that would 
     draw it into conflicts between European powers. When 
     President Washington asserted that ``history and 
     experience prove that foreign influence is one of the most 
     baneful foes of republican government,'' he was not 
     warning about Chief Executives meriting removal from 
     office.\235\ He was advocating for neutrality in American 
     foreign policy, and in particular, with respect to 
     Europe.\236\ One of President Washington's most 
     controversial decisions was establishing American 
     neutrality in the escalating war between Great Britain and 
     revolutionary France.\237\ He then used his Farewell 
     Address to argue against ``entangl[ing] [American] peace 
     and prosperity in the toils of European ambition, 
     rivalship, interest, humor [and] caprice.'' \238\ Again, 
     he was warning about the United States being drawn into 
     foreign alliances that would trap the young country in 
     disputes between European powers. House Democrats' false 
     allegations here have nothing to do with the danger of a 
     foreign entanglement as the Founders understood that term, 
     and the admonitions from the Founding era they cite are 
     irrelevant.\239\
       The Framers were also concerned about the distinct problem 
     of foreign attempts to interfere in the governance of the 
     United States.\240\ But on that score, they identified 
     particular concerns based on historical examples and 
     addressed them specifically. They were concerned about 
     officials being bought off by foreign powers. Gouverneur 
     Morris articulated this concern: ``Our Executive . . . may be 
     bribed by a greater interest to betray his trust; and no one 
     would say that we ought to expose ourselves to the danger of 
     seeing the first Magistrate in foreign pay without being able 
     to guard [against] it by displacing him.'' \241\ He 
     specifically mentioned the bribe King Louis XIV of France had 
     paid to King Charles II of England to influence English 
     policy.\242\ This is why ``Bribery'' and ``Treason'' were 
     made impeachable offenses. The Framers also addressed the 
     danger of foreign inducements directed at the President by 
     barring his acceptance of ``any present, Emolument, Office, 
     or Title'' in the Foreign Emoluments Clause.\243\ House 
     Democrats' Articles of Impeachment make no allegations under 
     any of these specific offenses identified in the 
     Constitution.
       In the end, House Democrats' ahistorical arguments rest on 
     a non sequitur. They essentially argue that because the 
     Framers showed concern about the Nation being betrayed in 
     these specific provisions, any accusations that relate to 
     foreign influence must equally amount to impeachable conduct. 
     That simply does not follow. To the contrary, since the 
     Framers made specific provisions for the types of foreign 
     interference they feared, there is no reason to think that 
     the Impeachment Clause must be stretched and contorted to 
     reach other conduct simply because it has to do with 
     something foreign. The Framers' approach to treason, in 
     particular, suggests that House Democrats' logic is wrong. 
     The Framers defined treason in the Constitution to limit 
     it.\244\ Nothing about their concern for limiting treason 
     suggests that a general concern about foreign betrayal should 
     be used as a ratchet to expand the scope of the Impeachment 
     Clause and make it infinitely malleable so that all charges 
     cast in the vague language of ``foreign entanglements'' 
     should automatically state impeachable conduct.
       Second, House Democrats point to the Founders' concerns 
     that a President might bribe electors to stay in office.\245\ 
     But that specific concern does not mean, as they claim, that 
     anything to do with an election was a central concern of 
     impeachment and that impeachment is the tool the Framers 
     created to deal with it. The historical evidence shows the 
     Framers had a specific concern with presidential candidates 
     bribing members of the Electoral College.\246\ That concern 
     was addressed by the clear terms of the Constitution, which 
     made ``Bribery'' a basis for impeachment.\247\ Nothing in 
     House Democrats' sources suggests that simply because one 
     grave form of corruption related to elections became a basis 
     for impeachment, then any accusations of any sort related to 
     elections necessarily must fall within the ambit of 
     impeachable conduct. That is simply an invention of the House 
     Democrats.

 B. House Democrats' Charge of ``Obstruction'' Fails Because Invoking 
    Constitutionally Based Privileges and Immunities to Protect the 
           Separation of Powers Is Not an Impeachable Offense

       House Democrats' charge of ``obstruction'' is both 
     frivolous and dangerous. At the outset, the very suggestion 
     that President Trump has somehow ``obstructed'' Congress is 
     preposterous. The President has been extraordinarily 
     transparent about his interactions with President Zelensky. 
     Immediately after questions arose, President Trump took the 
     unprecedented step of declassifying and releasing the full 
     record of his July 25 telephone call, and he later released 
     the transcript of an April 21, 2019 call as well. It is well 
     settled that the President has a virtually absolute right to 
     maintain the confidentiality of his diplomatic communications 
     with foreign leaders.\248\ And keeping such communications 
     confidential is essential for the effective conduct of 
     diplomacy, because it ensures that foreign leaders will be 
     willing to talk candidly with the President. Nevertheless, 
     after weighing such concerns, the President determined that 
     complete transparency was important in this case, and he 
     released both call records so that the American people could 
     judge for themselves exactly what he said to the President of 
     Ukraine. That should have put an end to this inquiry before 
     it began. The President was not ``obstructing'' when he 
     freely released the central piece of evidence in this case.
       The President also was not ``obstructing'' when he rightly 
     decided to defend established Executive Branch 
     confidentiality interests, rooted in the separation of 
     powers, against unauthorized efforts to rummage through 
     Executive Branch files and to demand testimony from some of 
     the President's closest advisers. As the Supreme Court has 
     explained, the privilege protecting the confidentiality of 
     presidential communications ``is fundamental to the operation 
     of Government and inextricably rooted in the separation of 
     powers under the Constitution.'' \249\ For future occupants 
     of the Office of President, it was essential for the 
     President, like past occupants of the Office, to protect 
     Executive Branch confidentiality against House Democrats' 
     overreaching intrusions.
       The President's proper concern for requiring the House to 
     proceed by lawful measures and for protecting long-settled 
     Executive Branch confidentiality interests cannot be twisted 
     into an impeachable offense. To the contrary, House 
     Democrats' charge of ``obstruction'' comes nowhere close to 
     the constitutional standard. It does not charge any violation 
     of established law. More important, it is based on the 
     fundamentally mistaken premise that the President can be 
     removed from office for invoking established legal defenses 
     and immunities against defective subpoenas from House 
     committees.
       The President does not commit ``obstruction'' by asserting 
     legal rights and privileges.\250\ And House Democrats turn 
     the law on its head with their unprecedented claim that it is 
     ``obstruction'' for anyone to assert rights that might 
     require the House to try to establish the validity of its 
     subpoenas in court.\251\ House Democrats' radical theories 
     are especially misplaced where, as here, the legal principles 
     invoked by the President and other Administration officials 
     are critical for preserving the separation of powers--and 
     based on advice from the Department of Justice's Office of 
     Legal Counsel.
       Treating a disagreement regarding constitutional limits on 
     the House's authority to compel documents or testimony as an 
     impeachable offense would do permanent damage to the 
     Constitution's separation of powers and our structure of 
     government. It would allow the House of Representatives to 
     declare itself supreme and turn any disagreement with the 
     Executive over informational demands into a purported basis 
     for removing the President from office. As Professor Turley 
     has explained, ``Basing impeachment on this obstruction 
     theory would itself be an abuse of power . . . by Congress'' 
     \252\

1. President Trump acted properly--and upon advice from the Department 
 of Justice--by asserting established legal defenses and immunities to 
 resist legally defective demands for information from House committees

       House Democrats' purported ``obstruction'' charge is based 
     on three actions by the President or Executive Branch 
     officials acting under his authority, each of which was 
     entirely proper and taken only after securing advice from 
     OLC.

(a) Administration officials properly refused to comply with subpoenas 
                that lacked authorization from the House

       It was entirely proper for Administration officials to 
     decline to comply with subpoenas issued pursuant to a 
     purported ``impeachment inquiry'' before the House of 
     Representatives had authorized any such inquiry. No House 
     committee can issue subpoenas pursuant to the House's 
     impeachment power without authorization from the House 
     itself. On precisely that basis, OLC determined that all 
     subpoenas issued before the adoption of House Resolution 660 
     on October 31, 2019, purportedly to advance an ``impeachment 
     inquiry,'' were unauthorized and invalid.\253\ Numerous 
     witness subpoenas and all of the document subpoenas cited in 
     Article II are invalid for this reason alone. These invalid 
     subpoenas imposed no legal obligation on the recipients, and 
     it was entirely lawful for the recipients not to comply with 
     them.\254\ The belated adoption of House Resolution 660 on 
     October 31 to authorize the inquiry essentially conceded that 
     a vote was required and did nothing to remedy the inquiry's 
     invalid beginnings.

[[Page S322]]

  


  (i) A delegation of authority from the House is required before any 
      committee can investigate pursuant to the impeachment power

       No committee can exercise authority assigned by the 
     Constitution to the House absent a clear delegation of 
     authority from the House itself.\255\ The Constitution 
     assigns the ``sole Power of Impeachment'' \256\ to the House 
     as a chamber--not to individual Members or subordinate units. 
     Assessing the validity of a committee's inquiry and subpoenas 
     thus requires ``constru[ing] the scope of the authority which 
     the House of Representatives gave to'' the committee.\257\ 
     Where a committee cannot demonstrate that its inquiries have 
     been authorized by an affirmative vote of the House assigning 
     the committee authority, the committee's actions are ultra 
     vires, and its subpoenas have no force.\258\
       To pursue an ``impeachment inquiry,'' and to compel 
     testimony and the production of documents for such an 
     inquiry, the committee must be authorized to conduct an 
     inquiry pursuant to the House's impeachment power. That power 
     is distinct from the power to legislate assigned to Congress 
     in Article I, Section 1. Congress's power to investigate in 
     support of its power to legislate is limited to inquiring 
     into topics ``on which legislation could be had.'' \259\ An 
     impeachment inquiry is not subject to the same constraint. An 
     impeachment inquiry does not aid Congress in considering 
     legislation, but instead requires reconstructing past events 
     to examine the conduct of specific persons. That differs from 
     the forward-looking nature of any legislative 
     investigation.\260\ Given these differences, a committee 
     seeking to investigate pursuant to the impeachment power must 
     show that the House has actually authorized the committee to 
     use that specific power.
       The Speaker of the House cannot treat the House's 
     constitutional power as her own to distribute to committees 
     based on nothing more than her own say-so. That would 
     exacerbate the danger of a minority faction invoking the 
     power of impeachment to launch disruptive inquiries without 
     any constitutional legitimacy from a majority vote in the 
     House. It would also permit a minority to seize the House's 
     formidable investigative powers to pursue divisive 
     investigations for partisan purposes that a House majority 
     might not be willing to authorize. House Democrats have not 
     identified any credible support for their theory of 
     authorization by press conference.\261\

(ii) Nothing in existing House rules authorized any committee to pursue 
                         an impeachment inquiry

       Nothing in the House Rules adopted at the beginning of this 
     Congress delegated authority to pursue an impeachment inquiry 
     to any committee. In particular, Rule X, which defines each 
     committee's jurisdiction, makes clear that it addresses only 
     committees' ``legislative jurisdiction''--not 
     impeachment.\262\ Rule X does not assign any committee any 
     authority whatsoever with respect to impeachment. It does not 
     even mention impeachment. And that silence is not accidental. 
     Rule X devotes more than 2,000 words to describing the 
     committees' areas of jurisdiction in detail. The six 
     committees that Speaker Pelosi instructed to take part in the 
     purported impeachment inquiry here have their jurisdiction 
     defined down to the most obscure legislative issues, ranging 
     from the Judiciary Committee's jurisdiction over ``[s]tate 
     and territorial boundary lines'' \263\ to the Oversight 
     Committee's responsibility for ``[h]olidays and 
     celebrations.'' \264\ But Rule X does not assign any 
     committee authority regarding impeachment. Neither does Rule 
     XI's grant of specific investigative powers, such as the 
     power to hold hearings and to issue subpoenas. Each 
     committee's specific investigative powers under Rule XI are 
     restricted to Rule X's jurisdictional limits \265\--which do 
     not include impeachment.\266\
       Rule X's history confirms that the absence of any reference 
     to ``impeachment'' was deliberate. When the House considered 
     a number of proposals between 1973 and 1974 to transfer power 
     from the House to committees and to remake committee 
     jurisdiction, the House specifically rejected an initial 
     proposal that would have added ``impeachments'' to the 
     Judiciary Committee's jurisdiction.\267\ Instead, the House 
     amended the rules to provide standing authorization for 
     committees to use investigatory powers only pursuant to their 
     legislative jurisdiction \268\ (previously, for example, a 
     separate House vote was required to delegate subpoena 
     authority to a particular committee for a particular 
     topic).\269\ Thus, after these amended rules were adopted, 
     committees were able to begin investigations within their 
     legislative jurisdiction and issue subpoenas without securing 
     House approval, but that resolution did not authorize self-
     initiated impeachment inquiries. Indeed, it was precisely 
     because ``impeachment was not specifically included within 
     the jurisdiction of the House Judiciary Committee'' that 
     then-Chairman Peter Rodino announced that the ``Committee on 
     the Judiciary will have to seek subpoena power from the 
     House'' for the Nixon impeachment inquiry.\270\ The House 
     majority, minority, and Parliamentarian, as well as the 
     Department of Justice, all agreed on this point.\271\

(iii) More than 200 years of precedent confirm that the House must vote 
                    to begin an impeachment inquiry

       Historical practice confirms the need for a House vote to 
     launch an impeachment inquiry. Since the Founding of the 
     Republic, the House has never undertaken the solemn 
     responsibility of a presidential impeachment inquiry without 
     first authorizing a particular committee to begin the 
     inquiry. That has also been the House's nearly unbroken 
     practice for every judicial impeachment for two hundred 
     years.
       In every prior presidential impeachment inquiry, the House 
     adopted a resolution explicitly authorizing the committee to 
     conduct the investigation before any compulsory process was 
     used.\272\ In President Clinton's impeachment, the House 
     Judiciary Committee explained that the resolution was a 
     constitutional requirement ``[b]ecause impeachment is 
     delegated solely to the House of Representatives by the 
     Constitution'' and thus ``the full House of Representatives 
     should be involved in critical decision making regarding 
     various stages of impeachment.'' \273\ As the Judiciary 
     Committee Chairman explained during President Nixon's 
     impeachment, an ``authoriz[ation] . . . resolution has always 
     been passed by the House'' for an impeachment inquiry and 
     ``is a necessary step.'' \274\ Thus, he recognized that, 
     without authorization from the House, ``the committee's 
     subpoena power [did] not now extend to impeachment.'' \275\ 
     Indeed, with respect to impeachments of judges or lesser 
     officers in the Executive Branch, the requirement that the 
     full House pass a resolution authorizing an impeachment 
     inquiry traces back to the first impeachments under the 
     Constitution.\276\
       That historical practice has continued into the modern era, 
     in which there have been only three impeachments that did not 
     begin with a House resolution authorizing an inquiry. Each of 
     those three outliers involved impeachment of a lower court 
     judge during a short interlude in the 1980s.\277\ Those 
     outliers provide no precedent for a presidential impeachment. 
     To paraphrase the Supreme Court, ``when considered against 
     200 years of settled practice, we regard these few scattered 
     examples as anomalies.'' \278\ In addition, as explained 
     above,\279\ ``[t]he impeachment of a federal judge does not 
     provide the same weighty considerations as the impeachment of 
     a president.'' \280\ Setting aside these three outliers, 
     precedent shows that a House vote is required to initiate an 
     impeachment inquiry for judges and subordinate executive 
     officials. At least the same level of process must be used to 
     begin the far more serious process of inquiring into 
     impeachment of the President.

(iv) The Subpoenas Issued Before House Resolution 660 Were Invalid and 
       Remain Invalid Because the Resolution Did Not Ratify Them

       The impeachment inquiry was unauthorized and all the 
     subpoenas issued by House committees in pursuit of the 
     inquiry were therefore invalid. OLC reached the same 
     conclusion.\281\ The vast bulk of the proceedings in the 
     House were thus founded on the use of unlawful process to 
     compel testimony. Until now, House Democrats have 
     consistently agreed that a vote by the House is required to 
     authorize an impeachment inquiry. In 2016, House Democrats on 
     the Judiciary Committee agreed that ``[i]n the modern era, 
     the impeachment process begins in the House of 
     Representatives only after the House has voted to authorize 
     the Judiciary Committee to investigate whether charges are 
     warranted.'' \282\ As current Judiciary Committee member Rep. 
     Hank Johnson said in 2016, ``[t]he impeachment process cannot 
     begin until the 435 Members of the House of Representatives 
     adopt a resolution authorizing the House Judiciary Committee 
     to conduct an independent investigation.'' \283\ As Chairman 
     Nadler put it, an impeachment inquiry without a House vote is 
     ``an obvious sham'' and a ``fake impeachment,'' \284\ or as 
     House Manager Rep. Hakeem Jeffries explained, it is ``a 
     political charade,'' ``a sham,'' and ``a Hollywood-style 
     production.'' \285\
       These invalid subpoenas remain invalid today. House 
     Resolution 660 merely directed the six investigating 
     committees to ``continue their ongoing investigations'' \286\ 
     and did not even purport to ratify retroactively the nearly 
     two dozen invalid subpoenas issued before it was 
     adopted,\287\ as OLC has explained.\288\ The House knows how 
     to use language effectuating ratification when it wants to--
     indeed, it used such language less than six months ago in a 
     resolution that ``ratifie[d] . . . all subpoenas previously 
     issued'' by a committee.\289\ The omission of anything 
     similar from House Resolution 660 means that subpoenas issued 
     before House Resolution 660 remain invalid, and the entire 
     fact-gathering process pursuant to those subpoenas was ultra 
     vires.
       Contrary to false claims from House Democrats, the 
     President did not ``declare[] himself above impeachment,'' 
     reject ``any efforts at accommodation or compromise,'' or 
     declare ``himself and his entire branch of government exempt 
     from subpoenas issued by the House.'' \290\ The White House 
     simply made clear that Administration officials should not 
     participate in House Democrats' inquiry ``under these 
     circumstances''--meaning a process that was unauthorized 
     under the House's own rules and suffered from the other 
     serious defects.\291\ The President's counsel also made it 
     clear that, if the investigating committees sought to proceed 
     under their oversight authorities, the White House stood 
     ``ready to engage in that process as [it] ha[s] in the past, 
     in a manner consistent with well-established bipartisan 
     constitutional protections.'' \292\ It was Chairman

[[Page S323]]

     Schiff and his colleagues who refused to engage in any 
     accommodation process with the White House.

  (b) The President Properly Asserted Immunity of His Senior Advisers 
                 From Compelled Congressional Testimony

       The President also properly directed his senior advisers 
     not to testify in response to subpoenas.\293\ Those subpoenas 
     suffered from a separate infirmity: they were unenforceable 
     because the President's senior advisers are immune from 
     compelled testimony before Congress.\294\ Consistent with the 
     longstanding position of the Executive Branch, OLC advised 
     the Counsel to the President that those senior advisers (the 
     Acting Chief of Staff, the Legal Advisor to the National 
     Security Council, and the Deputy National Security Advisor) 
     were immune from the subpoenas issued to them.\295\
       Across administrations of both political parties, OLC ``has 
     repeatedly provided for nearly five decades'' that ``Congress 
     may not constitutionally compel the President's senior 
     advisers to testify about their official duties.'' \296\ For 
     example, President Obama asserted the same immunity for a 
     senior adviser in 2014.\297\ Similarly, during the Clinton 
     administration, Attorney General Janet Reno opined that 
     ``immediate advisers'' to the President are immune from being 
     compelled to testify before Congress, and that the ``the 
     immunity such advisers enjoy from testimonial compulsion by a 
     congressional committee is absolute and may not be overborne 
     by competing congressional interests.'' \298\ She explained 
     that ``compelling one of the President's immediate advisers 
     to testify on a matter of executive decision-making would . . 
     . raise serious constitutional problems, no matter what the 
     assertion of congressional need.'' \299\
       This immunity exists because senior advisers ``function as 
     the President's alter ego.'' \300\ Allowing Congress to 
     summon the President's senior advisers would be tantamount to 
     permitting Congress to subpoena the President, which would be 
     intolerable under the Constitution: ``Congress may no more 
     summon the President to a congressional committee room than 
     the President may command Members of Congress to appear at 
     the White House.'' \301\
       In addition, immunity is essential to protect the 
     President's ability to secure candid and confidential advice 
     and have frank discussions with his advisers. It thus serves, 
     in part, to protect the same interests that underlie 
     Executive Privilege.\302\ As the Supreme Court has explained, 
     the protections for confidentiality embodied in the doctrine 
     of Executive Privilege are ``fundamental to the operation of 
     Government and inextricably rooted in the separation of 
     powers under the Constitution.'' \303\ The subpoenas issued 
     to the President's senior advisers in this inquiry 
     necessarily implicated three core areas of Executive 
     Privilege--presidential communications, national security and 
     foreign policy information, and deliberative process.
       First, one of the House Democrats' obvious objectives was 
     to find out about presidential communications. The document 
     subpoena sent to Acting White House Chief of Staff Mulvaney, 
     for instance, sought materials reflecting the President's 
     discussions with advisers,\304\ and Chairman Schiff's report 
     specifically identified documents that House Democrats 
     sought, including ``briefing materials for President Trump,'' 
     a ``presidential decision memo,'' and presidential call 
     records.\305\
       Courts have long recognized constitutional limits on 
     Congress's ability to obtain presidential communications. As 
     the Supreme Court has explained, executive decisionmaking 
     requires the candid exchange of ideas, and ``[h]uman 
     experience teaches that those who expect public dissemination 
     of their remarks may well temper candor with a concern for 
     appearances and for their own interests to the detriment of 
     the decisionmaking process.'' \306\ Protecting the 
     confidentiality of communications ensures the President's 
     ability to receive candid advice.\307\
       Second, there can be no dispute that the matters at issue 
     here implicate national security and foreign policy. As 
     Deputy National Security Adviser Kupperman has explained, 
     House Democrats were ``seeking testimony relating to 
     confidential national security communications concerning 
     Ukraine.'' \308\ But OLC has established that ``immunity is 
     particularly justified'' where a senior official's ``duties 
     concern national security'' or ``relations with a foreign 
     government'' \309\--subject areas where the President's 
     authority is at its zenith under the Constitution.\310\ As 
     the Supreme Court explained in United States v. Nixon, the 
     ``courts have traditionally shown the utmost deference to 
     Presidential responsibilities'' for foreign policy and 
     national security, and claims of privilege in this area thus 
     receive a higher degree of deference than invocations of ``a 
     President's generalized interest in confidentiality.'' \311\
       The House's inquiry involved communications with a foreign 
     leader and the development of foreign policy toward a foreign 
     country. There are few areas where the President's powers 
     under the Constitution are greater and his obligation to 
     protect internal Executive Branch deliberations more 
     profound.
       Third, House Democrats were seeking deliberative process 
     information. For instance, the committees requested White 
     House documents reflecting internal deliberations about 
     foreign aid, the delegation to President Zelensky's 
     inauguration, and potential meetings with foreign 
     leaders.\312\ Courts have long recognized that the 
     ``deliberative process privilege'' applies across the 
     Executive Branch and protects ``materials that would reveal 
     advisory opinions, recommendations and deliberations 
     comprising part of a process by which governmental decisions 
     and policies are formulated.'' \313\ The privilege prevents 
     ``injury to the quality of agency decisions by allowing 
     government officials freedom to debate alternative approaches 
     in private,'' \314\ and the privilege has been consistently 
     recognized by administrations of both political parties.\315\

   (c) Administration officials properly instructed employees not to 
   testify before committees that improperly excluded agency counsel

       Subpoenas for testimony from other Executive Branch 
     officials suffered from a distinct flaw. They impermissibly 
     demanded that officials testify without agency counsel 
     present.\316\ OLC has determined that congressional 
     committees ``may not bar agency counsel from assisting an 
     executive branch witness without contravening the legitimate 
     prerogatives of the Executive Branch,'' and that attempting 
     to enforce a subpoena while barring agency counsel ``would be 
     unconstitutional.'' \317\ As OLC explained, that principle 
     applies in the context of the House's purported impeachment 
     inquiry just as it applies in more routine congressional 
     oversight requests.\318\
       The requirement for congressional committees to permit 
     agency counsel to attend depositions of Executive Branch 
     officials is firmly grounded in the President's 
     constitutional authorities ``to protect privileged 
     information from disclosure'' and to ``control the activities 
     of subordinate officials within the Executive Branch.'' \319\ 
     As OLC has explained, without the assistance of agency 
     counsel, an Executive Branch employee might not be able to 
     determine when a question invaded a privileged area.\320\ It 
     is the vital role of agency counsel to ensure that 
     constitutionally based confidentiality interests are 
     protected. Congressional rules do not override these 
     constitutional principles, and there is no legitimate reason 
     for House Democrats to seek to deprive these officials of the 
     assistance of appropriate counsel.\321\
       The important role of agency counsel in congressional 
     inquiries has been recognized by administrations of both 
     political parties. During the Obama Administration, for 
     instance, OLC stated that exclusion of agency counsel ``could 
     potentially undermine the Executive Branch's ability to 
     protect its confidentiality interests in the course of the 
     constitutionally mandated accommodation process, as well as 
     the President's constitutional authority to consider and 
     assert executive privilege where appropriate.'' \322\
       Requiring agency counsel to be present when Executive 
     Branch employees testify does not raise any insurmountable 
     problems for congressional information gathering. To the 
     contrary, as recently as April 2019, the House Committee on 
     Oversight and Government Reform and the Trump Administration 
     were able to work out an accommodation that satisfied both an 
     information request and the need to have agency counsel 
     present for an interview. In that case, after initially 
     threatening contempt proceedings over a dispute, the late 
     Chairman Elijah Cummings allowed White House attorneys to 
     attend a transcribed interview of the former Director of the 
     White House Personnel Security Office.\323\ House Democrats 
     could have eliminated a significant legal defect in their 
     subpoenas simply by following Chairman Cummings' example. 
     They did not take this step, so the Administration properly 
     accepted the advice of OLC that House Democrats' actions were 
     unconstitutional and directed witnesses not to appear without 
     agency counsel present.

      2. Asserting legal defenses and immunities grounded in the 
   constitution's separation of powers is not an impeachable offense

       House Democrats' theory that it is ``obstruction'' for the 
     President to assert legal rights--especially rights and 
     immunities grounded in the separation of powers--turns the 
     law on its head and would do permanent damage to the 
     structure of our government.

  (a) Asserting Legal Defenses and Privileges Is Not ``Obstruction.''

       Under fundamental principles of our legal system, asserting 
     legal defenses cannot be labeled unlawful ``obstruction.'' In 
     a government of laws, asserting legal defenses is a 
     fundamental right. As the Supreme Court has explained: 
     ``[F]or an agent of the State to pursue a course of action 
     whose objective is to penalize a person's reliance on his 
     legal rights is `patently unconstitutional.' '' \324\ As 
     Harvard Law Professor Laurence Tribe correctly explained in 
     1998, the same basic principles apply in impeachment:
       The allegations that invoking privileges and otherwise 
     using the judicial system to shield information . . . is an 
     abuse of power that should lead to impeachment and removal 
     from office is not only frivolous, but also dangerous.\325\
       Similarly, in 1998, now-Chairman Nadler of the House 
     Judiciary Committee agreed that a president cannot be 
     impeached for asserting a legal privilege. As he put it, 
     ``the use of a legal privilege is not illegal or impeachable 
     by itself, a legal privilege, executive privilege.'' \326\
       House Democrats, however, ran roughshod over these 
     principles. They repeatedly threatened Executive Branch 
     officials with obstruction charges if the officials dared to

[[Page S324]]

     assert legal rights against defective subpoenas. They claimed 
     that any ``failure or refusal to comply with [a] subpoena, 
     including at the direction or behest of the President or 
     others at the White House, shall constitute evidence of 
     obstruction.'' \327\ Even worse, Chairman Schiff made the 
     remarkable claim that any action ``that forces us to 
     litigate or have to consider litigation, will be 
     considered further evidence of obstruction of justice.'' 
     \328\ Those assertions turn core principles of the law 
     inside out.

 (b) House Democrats' Radical Theory of ``Obstruction'' Would Do Grave 
                   Damage to the Separation of Powers

       More important, in the context of House demands for 
     information from the Executive Branch, House Democrats' 
     radical theory that asserting legal privileges should be 
     treated immediately as impeachable ``obstruction'' would do 
     lasting damage to the separation of powers.
       The Legislative and Executive Branches have frequently 
     clashed on questions of constitutional interpretation, 
     including on issues surrounding congressional demands for 
     information, since the very first presidential 
     administration.\329\ Such interbranch conflicts are not 
     evidence of an impeachable offense. To the contrary, they are 
     part of the constitutional design. The Founders anticipated 
     that the branches might have differing interpretations of the 
     Constitution and might come into conflict. As Madison 
     explained, ``the Legislative, Executive, and Judicial 
     departments . . . must, in the exercise of its functions, be 
     guided by the text of the Constitution according to its own 
     interpretation of it.'' \330\ Friction between the branches 
     on such points is part of the separation of powers at 
     work.\331\
       When the Legislative and Executive Branches disagree about 
     their constitutional duties with respect to sharing 
     information, the proper and historically accepted solution is 
     not an article of impeachment. Instead, it is for the 
     branches to engage in a constitutionally mandated 
     accommodation process in an effort to resolve the 
     disagreement.\332\ As courts have explained, this 
     ``[n]egotiation between the two branches'' is ``a dynamic 
     process affirmatively furthering the constitutional scheme.'' 
     \333\
       Where the accommodation process fails, Congress has other 
     tools at its disposal to address a disagreement with the 
     Executive. Historically, the House has held Executive Branch 
     officials in contempt.\334\ The process of holding a formal 
     vote of the House on a contempt resolution ensures that the 
     House itself examines the subpoena in question and weighs in 
     on launching a full-blown confrontation with the Executive 
     Branch.\335\ In addition, in recent times, the House of 
     Representatives has taken the view that it may sue in court 
     to obtain a judicial determination of the validity of its 
     subpoenas and an injunction to enforce them.\336\
       In this case, if House Democrats had actually been 
     interested in securing information (rather than merely adding 
     a phony count to their impeachment charge sheet), the proper 
     course would have been to engage with the Administration in 
     one or more of these mechanisms for resolving the interbranch 
     conflict.\337\ House Democrats rejected any effort to pursue 
     any of these avenues. Instead, they simply announced that 
     constitutional accommodation, contempt, and litigation were 
     all too inconvenient for their politically driven timetable 
     and that they must impeach the President immediately.\338\
       Permitting that approach and treating the President's 
     response to the subpoenas as an impeachable offense would do 
     grave damage to the separation of powers. Suggesting that 
     every congressional demand for information must automatically 
     be obeyed on pain of impeachment would undermine the 
     foundational premise that the Legislative and Executive 
     Branches are coequal branches of the government, neither of 
     which is subservient to the other. As Madison explained, 
     where the Executive and the Legislative Branches come into 
     conflict ``neither of them, it is evident, can pretend to an 
     exclusive or superior right of settling the boundaries 
     between their respective powers.'' \339\ That is why the 
     courts have insisted on an accommodations process by which 
     the two branches work to reach a compromise in which the 
     interest of each branch is addressed.\340\ House Democrats, 
     by contrast, have declared the House supreme not only over 
     the Executive Branch, but also over the Judicial Branch, by 
     baldly proclaiming that, whenever a committee chairman 
     invokes the possibility of impeachment, the House itself is 
     the sole judge of its own powers, because (in their view) 
     ``the Constitution gives the House the final word.'' \341\
       House Democrats' theory is unprecedented and dangerous for 
     our structure of government. There is no reason to believe 
     that the House, acting as judge in its own case, will 
     properly acknowledge limits on its own powers. That is 
     evident from numerous cases in which courts have refused to 
     enforce congressional subpoenas because they are invalid or 
     overbroad.\342\ More important, the House Democrats' theory 
     means that the House could dangle the threat of impeachment 
     over every congressional demand for information. Trivializing 
     impeachment in this manner would functionally transform our 
     government into precisely the type of parliamentary system 
     the Framers rejected.
       In his testimony before the House Judiciary Committee, 
     Professor Turley rightly pointed out that, by ``claiming 
     Congress can demand any testimony or documents and then 
     impeach any president who dares to go to the courts,'' House 
     Democrats were advancing a position that was ``entirely 
     untenable and abusive [of] an impeachment.'' \343\ Other 
     scholars agree. In the Clinton impeachment, for example, 
     Professor Susan Low Bloch testified that ``impeaching a 
     president for invoking lawful privileges is a dangerous and 
     ominous precedent.'' \344\
       In the past, the House itself has agreed and has recognized 
     that a President cannot be impeached for asserting a 
     privilege. For example, the House Judiciary Committee 
     rejected as a ground for impeachment the allegation that 
     President Clinton had ``frivolously and corruptly asserted 
     executive privilege'' in connection with a criminal 
     investigation.\345\ Although the Committee believed that 
     ``the President ha[d] improperly exercised executive 
     privilege,'' \346\ it nevertheless determined that this was 
     not an ``impeachable offense[].'' \347\ Similarly, over 175 
     years ago, the House rejected an attempt to impeach President 
     Tyler ``for abusing his powers based on his refusals to share 
     with the House inside details on whom he was considering to 
     nominate to various confirmable positions and his vetoing of 
     a wide range of Whig-sponsored legislation.'' \348\
       If House Democrats' unprecedented theory of ``obstruction 
     of Congress'' were correct, virtually every President could 
     have been impeached. Throughout our history, Presidents have 
     refused to share information with Congress. For example, when 
     Congress investigated Operation Fast and Furious during the 
     last administration, President Obama invoked Executive 
     Privilege with respect to documents responsive to a 
     congressional subpoena.\349\ Instead of a rash rush to 
     impeachment, House Republicans secured a favorable court 
     ruling on President Obama's assertion of privilege.\350\ 
     President Trump's actions are entirely consistent with such 
     steps taken by his predecessors. As Professor Turley 
     explained, ``[i]f this Committee elects to seek impeachment 
     on the failure to yield to congressional demands in an 
     oversight or impeachment investigation, it will have to 
     distinguish a long line of cases where prior presidents 
     sought . . . [judicial] review while withholding witnesses 
     and documents.'' \351\
       House Democrats fare no better in claiming that President 
     Trump announced a more ``categorical'' refusal to cooperate 
     with House demands than any past president.\352\ That claim 
     misunderstands the law and misrepresents both the President's 
     conduct and history. On the law, there is nothing 
     impermissible about asserting rights consistently and 
     ``categorically.'' There is no requirement for a President to 
     cede Executive Branch confidentiality interests some of the 
     time lest he be too ``categorical'' in their defense. On the 
     facts, the President did not issue a categorical refusal. As 
     noted above, the Counsel to the President made clear to House 
     Democrats that, if they sought to pursue regular oversight, 
     the Administration would ``stand ready to engage in that 
     process as we have in the past, in a manner consistent with 
     well-established bipartisan constitutional protections.'' 
     \353\ It was House Democrats who refused to engage in the 
     accommodation process. And as for history, past Presidents--
     such as Presidents Truman, Coolidge, and Jackson--did 
     announce categorical refusals to cooperate at all with 
     congressional inquiries.\354\ None was impeached as a result.
       Contrary to House Democrats' assertions, it also makes no 
     difference that the subpoenas here were purportedly issued as 
     part of an impeachment inquiry.\355\ The defenses and 
     immunities the President has asserted are grounded in the 
     separation of powers and protect confidentiality interests 
     that are vital for the functioning of the Executive Branch. 
     Those defenses and immunities do not disappear the instant 
     the House opens an impeachment inquiry. Just as with the 
     judicial need for evidence in a criminal trial, the House's 
     interest in investigating does not mean Executive Privilege 
     goes away; instead, ``it is necessary to resolve those 
     competing interests in a manner that preserves the essential 
     functions of each branch.'' \356\ If anything, the 
     interbranch conflict inherent in an impeachment inquiry 
     heightens the need for scrupulous adherence to principles 
     preserving each branch's mechanisms for protecting its own 
     legitimate sphere of authority.
       House Democrats' insistence that the Constitution assigns 
     the House the ``sole Power of Impeachment'' \357\ does 
     nothing to advance their argument. That provision simply 
     makes clear that the power of impeachment is assigned to the 
     House and not anywhere else. It does not make the power of 
     impeachment a paramount authority that sweeps away the 
     constitutionally based privileges of other branches.\358\ The 
     fundamental Madisonian principle that each branch must place 
     checks on the others--that ``[a]mbition must be made to 
     counteract ambition''--continues to apply even when the House 
     invokes the power of impeachment.\359\ The mere fact that 
     impeachment provides an ultimate check on the Executive does 
     not mean the Framers made it a blank check for the House to 
     expand its power without limit.
       OLC has determined that Executive Privilege principles 
     continue to apply in an impeachment inquiry.\360\ And 
     scholars agree that Presidents may assert privileges in 
     response to demands for information in an impeachment 
     inquiry, as Executive Privilege is ``essential to the . . . 
     dignified conduct of the presidency and to the free flow of 
     candid advice to the President.'' \361\
       None of the excuses House Democrats have offered justifies 
     their unprecedented leap to

[[Page S325]]

     impeachment while bypassing any effort either to seek 
     constitutionally mandated accommodations or to go to court. 
     Their claim that there was no time is no justification.\362\ 
     As Professor Turley has explained, ``[t]he decision to adopt 
     an abbreviated schedule for the investigation and not to seek 
     to compel such testimony [in court] is a strategic choice of 
     the House leadership. It is not the grounds for an 
     impeachment.'' \363\ Nor is their claim about urgency 
     credible. The only constraint on timing here came from House 
     Democrats' self-imposed deadline to ensure that this 
     impeachment charade would not drag on into the Democratic 
     primary season. They also showed no urgency when they waited 
     four weeks to send the Articles of Impeachment to the Senate. 
     If House Democrats had cared about constitutional precedent, 
     they would have adhered to the ordinary timetable for 
     something as momentous as a presidential impeachment and 
     would have taken the time to work out disputes with the 
     Executive Branch on subpoenas. House Democrats arbitrarily 
     decided to skip that step.
       Next, Democrats falsely claim that that ``the House has 
     never before relied on litigation to compel witness testimony 
     or the production of documents in a Presidential impeachment 
     proceeding.'' \364\ But the House has filed such lawsuits, 
     including just last year. In one case, the House made a court 
     filing asserting that its impeachment inquiry entitled it to 
     certain grand jury information on the same day the House 
     Judiciary Committee issued its report.\365\ And in another 
     case purportedly based on an impeachment inquiry, House 
     Democrats recently argued that, when at an impasse, disputes 
     with the Executive Branch can ``only be resolved by the 
     courts.'' \366\ These filings are flatly inconsistent with 
     House Democrats' position here, where they claim that any 
     impasse should lead to impeachment.
       Lastly, House Democrats also find no support for their 
     theory of ``obstruction'' in the Clinton and Nixon 
     impeachment proceedings.\367\ To the contrary, the Clinton 
     proceedings establish conclusively that there is no plausible 
     basis for an article of impeachment based on the assertion of 
     rights and privileges. In 1997 and 1998, there had been 
     numerous court rulings rejecting various assertions of 
     Executive Privilege by President Clinton.\368\ The House 
     Judiciary Committee concluded that Clinton's assertions of 
     Executive Privilege were frivolous, especially because they 
     related to ``purely private'' matters--not official 
     actions.\369\ Nevertheless, the Committee decided that the 
     assertions of privilege did not constitute an ``impeachable 
     offense[].'' \370\
       Nothing from the Nixon impeachment proceedings supports 
     House Democrats either. The record there included evidence 
     that, as part of efforts to cover up the Watergate break-in, 
     the President had (among other things): provided information 
     from the Department of Justice to subjects of criminal 
     investigations to help them evade justice; used the FBI, 
     Secret Service, and Executive Branch personnel to conduct 
     illegal electronic surveillance; and illegally attempted to 
     secure access to tax return information in order to influence 
     individuals.\371\ Moreover, the Committee had transcripts of 
     tapes on which the President discussed asserting privileges, 
     not to protect governmental decision making, but solely to 
     stymie the investigation into the break-in.\372\ It was only 
     in that context that the House Judiciary Committee narrowly 
     recommended an article of impeachment asserting that 
     President Nixon had ``failed without lawful cause or excuse 
     to produce papers and things'' sought by Congress.\373\ There 
     is nothing remotely comparable in this case. Among other 
     things, every step the Trump Administration has taken has 
     been well-founded in law and supported by the opinion of the 
     Department of Justice. Moreover, the subpoenas here attempted 
     to probe into matters involving the conduct of foreign 
     relations--matters squarely at the core of Executive 
     Privilege where the President's powers and need to preserve 
     confidentiality are at their apex.

 (c) The President cannot be removed from office based on a difference 
                            in legal opinion

       House Democrats' reckless ``obstruction'' theory is further 
     flawed because it asks the Senate to remove a duly elected 
     President from office based on differences of legal opinion 
     in which the President acted on the advice of OLC. As 
     explained above, the Framers restricted impeachment to remedy 
     solely egregious conduct that endangers the constitutional 
     structure of government. No matter how House Democrats try to 
     dress up their claim, a difference of legal opinion over an 
     assertion of grounds to resist subpoenas does not rise to 
     that level. The Framers themselves recognized that 
     differences of opinion could not justify impeachment. As 
     Edmund Randolph explained in the Virginia ratifying 
     convention, ``[n]o man ever thought of impeaching a man for 
     an opinion.'' \374\
       Until now, that principle has prevailed, as the House has 
     expressly rejected attempts to impeach presidents based on 
     legal disputes over assertions of privilege. As noted above, 
     in the Clinton impeachment, the House Judiciary Committee 
     rejected a draft article alleging that President Clinton had 
     ``frivolously and corruptly asserted executive privilege.'' 
     \375\ Even though the Committee concluded that ``the 
     President ha[d] improperly exercised executive privilege,'' 
     \376\ it decided that this was not an ``impeachable 
     offense[].'' \377\ The Committee concluded it did not have 
     ``the ability to second guess the rationale behind the 
     President or what was in his mind in asserting that executive 
     privilege'' and it ``ought to give . . . the benefit of the 
     doubt [to the President] in the assertion of executive 
     privilege.'' \378\ As the Committee recognized, members of 
     Congress need not agree that a President's assertion of a 
     privilege or immunity is correct to recognize that making the 
     assertion of legal privileges itself an impeachable offense 
     is a dangerous and unwarranted step.
       The House took a similar view in rejecting an attempt to 
     impeach President Tyler in 1843 when he refused congressional 
     demands for information. As Professor Gerhardt has explained:
       Tyler's attempts to protect and assert what he regarded as 
     the prerogatives of his office were a function of his 
     constitutional and policy judgments; they might have been 
     wrong-headed or even poorly conceived (at least in the view 
     of many Whigs in Congress), but they were not malicious 
     efforts to abuse or expand his powers. . . .\379\
       President Trump's resistance to congressional subpoenas 
     here was similarly ``a function of his constitutional and 
     policy judgments.'' As the House recognized in the cases of 
     President Tyler and President Clinton, divergent views on 
     such matters cannot possibly be sufficient to remove a duly 
     elected president from office. And that is especially the 
     case here, where President Trump's actions were expressly 
     based on advice from the Department of Justice.
     II. The Articles Resulted from an Impeachment Inquiry that 
         Violated All Precedent and Denied the President 
         Constitutionally Required Due Process.
       Three defects make the House's purported impeachment 
     inquiry irredeemably flawed. First, as the Department of 
     Justice advised at the time, the House's investigating 
     committees compelled testimony and documents by issuing 
     subpoenas that were invalid when issued and are invalid 
     today. See Parts I.B.1(a), II.A. Second, the impeachment 
     inquiry failed to provide due process to the President as 
     required by the Constitution. See Part II.B. Contrary to 
     150 years of precedent, the House excluded the President 
     from the process, denying him any right to participate or 
     defend himself. House Democrats only pretended to provide 
     the President any rights after the entire factual record 
     had been compiled in ex parte hearings and after Speaker 
     Pelosi had predetermined the result by instructing the 
     Judiciary Committee to draft articles of impeachment. 
     Third, the House's factual investigation was supervised by 
     an interested fact witness, Chairman Schiff, who--after 
     falsely denying it--admitted that his staff had been in 
     contact with the whistleblower and had given him guidance. 
     See Part II.C. These three fundamental errors infected the 
     underpinnings of this trial, and the Senate cannot 
     constitutionally rely upon House Democrats' tainted record 
     to reach any verdict other than acquittal. See Part II.D. 
     Nor is it the Senate's role to give House Democrats a 
     ``do-over'' to develop the record anew in the Senate. 
     These errors require rejecting the Articles and acquitting 
     the President.

A. The Purported Impeachment Inquiry Was Unauthorized at the Outset and 
    Compelled Testimony Based on Nearly Two Dozen Invalid Subpoenas

       It is emblematic of the rush to judgment throughout the 
     House's slap-dash impeachment inquiry that Chairman Schiff's 
     investigating committees began issuing subpoenas and 
     compelling testimony when they plainly had no authority to do 
     so. The House committees built their one-sided record by 
     purporting to compel testimony and documents using nearly two 
     dozen subpoenas ``[p]ursuant to the House of Representatives' 
     impeachment inquiry.'' \380\ But their only authority was 
     Speaker Pelosi's announcement at a press conference on 
     September 24, 2019. As a result, the inquiry and the almost 
     two dozen subpoenas issued before October 31, 2019 came 
     before the House delegated any authority under its ``sole 
     Power of Impeachment'' to any committee.\381\ As OLC 
     summarized:
       The Constitution vests the ``sole Power of Impeachment'' in 
     the House of Representatives. U.S. Const. art. I, Sec. 2, cl. 
     5. For precisely that reason, the House itself must authorize 
     an impeachment inquiry, as it has done in virtually every 
     prior impeachment investigation in our Nation's history, 
     including every one involving a President. A congressional 
     committee's ``right to exact testimony and to call for the 
     production of documents'' is limited by the ``controlling 
     charter'' the committee has received from the House. United 
     States v. Rumely, 345 U.S. 41, 44 (1953). Yet the House, by 
     its rules, has authorized its committees to issue subpoenas 
     only for matters within their legislative jurisdiction. 
     Accordingly, no committee may undertake the momentous move 
     from legislative oversight to impeachment without a 
     delegation by the full House of such authority.\382\
       Thus, as explained above, all subpoenas issued before the 
     adoption of House Resolution 660 on October 31, 2019, 
     purportedly to advance an ``impeachment inquiry,'' were 
     unauthorized and invalid.

 B. House Democrats' Impeachment Inquiry Deprived the President of the 
        Fundamentally Fair Process Required by the Constitution

       The next glaring defect in House Democrats' impeachment 
     proceedings was the wholly unfair procedures used to conduct 
     the

[[Page S326]]

     inquiry and compile the record. The Constitution requires 
     that something as momentous as impeaching the President be 
     done in a fundamentally fair way. Both the Due Process Clause 
     and separation of powers principles require the House to 
     provide the President with fair process and an opportunity to 
     defend himself. Every modern presidential impeachment 
     inquiry--and every impeachment investigation for the last 150 
     years--has expressly preserved the accused's rights to a 
     fundamentally fair process and ensured a balanced development 
     of the evidence. These included the rights to cross-examine 
     witnesses, to call witnesses, to be represented by counsel at 
     all hearings, to make objections relating to the examination 
     of witnesses or the admissibility of evidence, and to respond 
     to evidence and testimony received. There is no reason to 
     think that the Framers designed a mechanism for the 
     profoundly disruptive act of impeaching the President that 
     could be accomplished through any unfair and arbitrary means 
     that the House might invent.\383\

  1. The Text and Structure of the Constitution Demand that the House 
     Ensure Fundamentally Fair Procedures in an Impeachment Inquiry

            (a) The Due Process Clause Requires Fair Process

       The federal Due Process Clause broadly states that ``[n]o 
     person shall . . . be deprived of life, liberty, or property, 
     without due process of law'' \384\ and applies to every part 
     of the federal government. In any proceeding that may lead to 
     deprivation of a protected interest, it requires fair 
     procedures commensurate with the interests at stake.\385\ 
     There is no exemption from the clause for Congress. Thus, for 
     example, the Supreme Court has held that due process 
     protections apply to congressional investigations and provide 
     witnesses in such investigations certain rights.\386\ 
     Congress's ``power to investigate, broad as it may be, is 
     also subject to recognized limitations''--including those 
     ``found in the specific individual guarantees of the Bill of 
     Rights.'' \387\ It would be anomalous if the Due Process 
     Clause applied to investigations conducted under Congress's 
     legislative power--which aim merely to gather information for 
     legislation--but somehow did not apply to impeachment 
     investigations aimed at stripping individuals of their 
     government positions. An impeachment investigation against 
     the President potentially seeks to charge the President with 
     ``Treason, Bribery, or other high Crimes and Misdemeanors,'' 
     \388\ and to strip the President of both (1) his 
     constitutionally granted right to ``hold his Office during 
     the Term of Four years,'' \389\ and (2) his eligibility to 
     ``hold and enjoy any Office of honor, Trust or Profit under 
     the United States,'' \390\ including to be re-elected as 
     President.\391\
       Those actions plainly involve deprivations of property and 
     liberty interests protected by the Due Process Clause.\392\ 
     As a threshold matter, it is settled law that even the lowest 
     level ``public employees who can be discharged only for cause 
     have a constitutionally protected property interest in their 
     tenure and cannot be fired without due process.'' \393\ 
     Nothing in the Constitution suggests that the impeachment 
     process for addressing charges crossing the extraordinarily 
     high threshold of ``Treason, Bribery, or other high Crimes 
     and Misdemeanors'' \394\ should involve less fair process 
     than what the Constitution requires for every lower-level 
     federal employee. The Constitution also explicitly gives the 
     President (and every individual) a protected liberty interest 
     in eligibility for election to the Office of President--so 
     long as the individual meets the qualifications 
     established by the Constitution.\395\ Finally, every 
     federal officer has a protected liberty interest in his 
     reputation that would be directly impaired by impeachment 
     charges.\396\ Impeachment by the House alone has an impact 
     warranting the protections of due process.\397\ The 
     House's efforts to deprive the President of these 
     constitutionally protected property and liberty interests 
     necessarily implicate the Due Process Clause. The fact 
     that impeachment is a constitutionally prescribed 
     mechanism for removing federal officials from office does 
     not make it any the less a mechanism affecting rights 
     within the ordinary ambit of the clause.
       The gravity of the deprivation at stake in an impeachment--
     especially a presidential impeachment--buttresses the 
     conclusion that some due process limitations must apply. It 
     would be incompatible with the Framers' understanding of the 
     ``delicacy and magnitude of a trust which so deeply concerns 
     the political reputation and existence of every man engaged 
     in the administration of public affairs'' \398\ to think that 
     they envisioned a system in which the House was free to 
     devise any arbitrary or unfair mechanism it wished for 
     impeaching individuals. The Supreme Court has described due 
     process as ``the protection of the individual against 
     arbitrary action.'' \399\ There is no reason to think that 
     protection was not intended to extend to impeachments.
       Similarly, the momentous impact of a presidential 
     impeachment on the operation of the government suggests that 
     the drafters of the Constitution expected the process to be 
     governed by procedures that would ensure a fair assessment of 
     evidence. The Bill of Rights guarantees due process, not out 
     of an abstract, academic interest in process as an end in 
     itself, but rather due to a belief, deeply rooted in the 
     Anglo-American system of law, that procedural protections 
     reduce the chances of erroneous decision-making.\400\ The 
     Framers surely did not intend to approve a process for 
     determining impeachments that would be wholly cut loose from 
     all traditional mechanisms deemed essential in our legal 
     heritage for discovering the truth.
       The sole judicial opinion to reach the question held that 
     the Due Process Clause applies to impeachment 
     proceedings.\401\ In Hastings v United States, the district 
     court held that the Due Process Clause imposes an independent 
     constitutional constraint on how the Senate exercises its 
     ``sole Power to try all Impeachments.'' \402\ In 1974, the 
     Department of Justice suggested the same view, opining that 
     ``[w]hether or not capable of judicial enforcement, due 
     process standards would seem to be relevant to the manner of 
     conducting an impeachment proceeding'' in the House--
     including ``the ability of the President to be represented at 
     the inquiry of the House Committee, to cross-examine 
     witnesses, and to offer witnesses and evidence,'' completely 
     separate from the trial in the Senate.\403\

           (b) The Separation of Powers Requires Fair Process

       A proper respect for the head of a co-equal branch of the 
     government also requires that the House use procedures that 
     are not arbitrary and that are designed to permit the fair 
     development of evidence. The Framers intended the impeachment 
     power to be limited to ``guard[] against the danger of 
     persecution, from the prevalency of a factious spirit.'' 
     \404\ The Constitution places the power of impeachment in the 
     entire House precisely to ensure that a majority of the 
     elected representatives of the people decide to move an 
     impeachment forward. That design would be undermined if a 
     House vote were shaped by an investigatory process so 
     lopsided that it effectively empowered only one faction to 
     develop evidence and foreclosed the ability of others--
     including the accused--to develop the facts. Rather than 
     promoting deliberation by a majority of the people's 
     representatives, that approach would foster precisely the 
     factionalism that the Framers foresaw as one of the greatest 
     dangers in impeachments. ``By forcing the House and Senate to 
     act as tribunals rather than merely as legislative bodies, 
     the Framers infused the process with notions of due process 
     to prevent impeachment from becoming a common tool of party 
     politics.'' \405\
       The need for fair process as a reflection of respect for 
     the separation of powers is further buttressed by the unique 
     role of the President in the constitutional structure. As 
     explained above,\406\ ``presidential impeachments are 
     qualitatively different from all others'' because they 
     overturn a national election and risk grave disruption of the 
     government.\407\ It is unthinkable that a process carrying 
     such grave risks for the Nation should not be regulated by 
     any constitutional limits. And the need for fair process is 
     even more critical where, as here, impeachment turns on how 
     the President has exercised authorities within his exclusive 
     constitutional sphere. The President is ``the constitutional 
     representative of the United States in its dealings with 
     foreign nations.'' \408\ Preserving the President's ability 
     to carry out this constitutional function requires that he be 
     provided fair process and an opportunity to defend himself in 
     any investigation into how he has exercised his authority to 
     conduct foreign affairs. Otherwise, a partisan faction could 
     smear the President with one-sided allegations with no 
     opportunity for the President to respond. That would threaten 
     to ``undermine the President's capacity'' for ``effective 
     diplomacy'' and ``compromise the very capacity of the 
     President to speak for the Nation with one voice in dealing 
     with other governments.'' \409\

(c) The House's Sole Power of Impeachment and Power to Determine Rules 
of Its Own Proceedings Do Not Eliminate the Constitutional Requirement 
                             of Due Process

       Nothing in the House's ``sole Power of Impeachment'' \410\ 
     and power to ``determine the Rules of its Proceedings'' \411\ 
     undermines the House's obligation to use fundamentally fair 
     procedures in impeachment. Those provisions simply mean that 
     the House, and no other entity, has these powers. The Supreme 
     Court has made clear that independent constitutional 
     constraints limit otherwise plenary powers committed to one 
     of the political branches.\412\ For example, even though 
     ``[t]he [C]onstitution empowers each house to determine its 
     rules of proceedings,'' each House ``may not by its rules 
     ignore constitutional restraints or violate fundamental 
     rights.'' \413\ Similarly, the doctrine of Executive 
     Privilege, which is rooted in the separation of powers, 
     constrains Congress's exercise of its constitutionally 
     assigned powers. A congressional committee cannot simply 
     demand access to information protected by Executive 
     Privilege. Instead, if it can get access to such information 
     at all, it must show that the information ``is demonstrably 
     critical to the responsible fulfillment of the Committee's 
     functions.'' \414\ The House could not evade that constraint 
     by invoking its plenary authority to ``determine the Rules of 
     its Proceedings'' \415\ and adopting a rule allowing its 
     committees to override Executive Privilege.\416\ Executive 
     Privilege, which is itself grounded in the Constitution, 
     similarly constrains the House's ability to demand 
     information pursuant to its ``sole Power of Impeachment.'' 
     \417\
       Nixon v. United States, in any case, does not suggest 
     otherwise.\418\ Nixon addressed whether the use of a 
     committee to take evidence in a Senate impeachment trial 
     violated the direction in the Constitution that the Senate

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     shall have ``sole Power to try all Impeachments.'' \419\ The 
     Court held that the challenge presented a non-justiciable 
     political question \420\--specifically, that ``[i]n the case 
     before us, there is no separate provision of the Constitution 
     that could be defeated by allowing the Senate final authority 
     to determine the meaning of the word `try' in the Impeachment 
     Trial Clause.'' \421\ But Nixon did not hold that all 
     questions related to impeachment are non-justiciable \422\ or 
     that there are no constitutional constraints on impeachment. 
     To the contrary, the Court ``agree[d] with Nixon that courts 
     possess power to review either legislative or executive 
     action that transgresses identifiable textual limits,'' 
     but merely concluded ``that the word `try' in the 
     Impeachment Trial Clause does not provide an identifiable 
     textual limit on the authority which is committed to the 
     Senate.'' \423\ More importantly, the justiciability of 
     such questions is irrelevant. Constitutional obligations 
     need not be enforceable by the judiciary to exist and 
     constrain the political branches. As Madison explained, 
     ``as the Legislative, Executive, and Judicial departments 
     of the United States are co-ordinate, and each equally 
     bound to support the Constitution, it follows that each 
     must in the exercise of its functions, be guided by the 
     text of the Constitution according to its own 
     interpretation of it.'' \424\ Particularly in the 
     impeachment context, ``we have to divest ourselves of the 
     common misconception that constitutionality is discussable 
     or determinable only in the courts, and that anything is 
     constitutional which a court cannot or will not overturn. 
     . . . Congress's responsibility to preserve the forms and 
     the precepts of the Constitution is greater, rather than 
     less, when the judicial forum is unavailable, as it 
     sometimes must be.'' \425\ A holding that a particular 
     question is a non-justiciable political question leaves 
     that question to the political branches to use 
     ``nonjudicial methods of working out their differences'' 
     \426\ and does not relieve the House of its constitutional 
     obligation.

    2. The House's Consistent Practice of Providing Due Process in 
  Impeachment Investigations for the Last 150 Years Confirms that the 
                   Constitution Requires Due Process

       Historical practice provides a gloss on the requirements of 
     the Constitution and strongly confirms that House impeachment 
     investigations must adhere to basic forms of due process. 
     ``In separation-of-powers cases, th[e] [Supreme] Court has 
     often put significant weight upon historical practice.'' 
     \427\ As James Madison explained, it ``was foreseen at the 
     birth of the Constitution, that difficulties and differences 
     of opinion might occasionally arise in expounding terms [and] 
     phrases necessarily used in such a charter . . . and that it 
     might require a regular course of practice to liquidate [and] 
     settle the meaning of some of them.'' \428\ The Constitution 
     ``contemplates that practice will integrate the dispersed 
     powers [of the federal government] into a workable 
     government.'' \429\ The Supreme Court has thus explained that 
     historical practice reflects ``an admissible view of the 
     Constitution,'' \430\ and ``consistent congressional practice 
     requires our respect.'' \431\ Although constitutional 
     requirements governing House impeachment proceedings may have 
     been unsettled when the Constitution was adopted, by the 
     1870s consistent practice in the House (unbroken since then) 
     gave meaning to the Constitution and settled the minimum 
     procedures that must be afforded for a fair impeachment 
     inquiry.
       The Framers, who debated impeachment with reference to the 
     contemporaneous English impeachment of Warren Hastings,\432\ 
     knew that ``the House of Commons did hear the accused, and 
     did permit him to produce testimony, before they voted an 
     impeachment against him.'' \433\ And practice in the United 
     States rapidly established that the accused in an impeachment 
     must be allowed fair process. Although a few early 
     impeachment investigations were ex parte,\434\ the House 
     provided the accused with notice and an opportunity to be 
     heard in the majority of cases starting as early as 
     1818.\435\
       By Judge Peck's impeachment in 1830, House Members, 
     explicitly acknowledging that ``it was obvious that it had 
     not yet been settled by precedent,'' had an extensive debate 
     to ``settle[]'' ``[t]he practice in cases of impeachments, so 
     far as regards the proceedings in this House.'' \436\ Judge 
     Peck had asked for the House to give him the ability to 
     submit a ``written exposition of the whole case, embracing 
     both the facts and the law, and give him, also, process to 
     call his witnesses from Missouri in support of his 
     statements.'' \437\ The Judiciary Committee Chairman, James 
     Buchanan, pointed out that ``in the case of Warren Hastings'' 
     in England, ``the House of Commons did hear the accused, and 
     did permit him to produce testimony, before they voted an 
     impeachment against him.'' \438\ Mr. Ingersoll explained 
     that, in a prior impeachment inquiry against Vice President 
     Calhoun, ``a friend of the Vice President had been permitted 
     to appear, and represent him throughout the whole 
     investigation,'' that ``[w]itnesses, also, had been examined 
     on the part of the accused,'' and that ``witnesses in favor 
     of the Vice President had been examined, as well as against 
     him, and that his representative had been allowed to present 
     before the committee through every stage of the 
     examination.'' \439\ He noted that ``[t]he committee at that 
     time took some pains to ascertain what was the proper mode of 
     proceeding, and they became satisfied that the party accused 
     had, in these preliminary proceedings, a right to be thus 
     heard.'' \440\ Mr. Pettis similarly concluded that ``[t]he 
     request of the Judge is supported by the whole train of 
     English decisions in cases of a like kind'' and that he 
     should be given those rights here as well.\441\ The debate 
     was thus settled in favor of due process rights for Judge 
     Peck.\442\
       By at least the 1870s, despite some unsettled practice in 
     the interim, the House Judiciary Committee concluded that an 
     opportunity for the ``accused by himself and his counsel [to] 
     be heard'' had ``become the established practice of the 
     [Judiciary Committee] in cases of impeachment'' and thus 
     ``deemed it due to the accused that he should have'' due 
     process.\443\ That ``established practice'' has been followed 
     in every House impeachment investigation for the past 150 
     years \444\ and has provided a fixed meaning for the 
     constitutional requirements governing House impeachment 
     proceedings.\445\ The fact that the House has not followed a 
     perfectly consistent practice dating all the way back to 
     1789, or that there were early outliers, is irrelevant.\446\
       The House's Parliamentarian acknowledges that while ``the 
     committee sometimes made its inquiry ex parte'' in ``earlier 
     practice'' before the 1870s, the practice dating to the 1870s 
     ``is to permit the accused to testify, present witnesses, 
     cross-examine witnesses, and be represented by counsel.'' 
     \447\ Current House Democrats are already on record agreeing 
     that due process protections apply in the House's impeachment 
     inquiries. Chairman Nadler has admitted that ``[t]he power of 
     impeachment is a solemn responsibility, assigned to the House 
     by the Constitution,'' and ``[t]hat responsibility demands a 
     rigorous level of due process.'' \448\ He has rightly 
     acknowledged, expressly in the context of impeachment, that 
     ``[t]he Constitution guarantees the right of anyone who is 
     accused of any wrongdoing, and fundamental fairness 
     guarantees the right of anyone, to have the right to confront 
     the witness against him.'' \449\ Rep. Hank Johnson--a current 
     Judiciary Committee member--has similarly recognized that 
     ``[t]here is a reason for a careful process when it comes to 
     the most drastic action of impeachment; it is called due 
     process.'' \450\
       The two modern presidential impeachment inquiries also 
     abundantly confirm the due process protections that apply to 
     the accused in an impeachment inquiry. In fact, every 
     President who has asked to participate in an impeachment 
     investigation has been afforded extensive rights to do 
     so.\451\ The House Judiciary Committee adopted explicit 
     procedures to provide Presidents Clinton and Nixon with 
     robust opportunities to defend themselves, including the 
     rights ``to attend all hearings, including any held in 
     executive session''; ``respond to evidence received and 
     testimony adduced by the Committee''; ``submit written 
     requests'' for ``the Committee to receive additional 
     testimony or other evidence''; \452\ ``question any witness 
     called before the Committee''; and raise ``[o]bjections 
     relating to the examination of witnesses, or to the 
     admissibility of testimony and evidence.'' \453\ President 
     Clinton was given access to the grand-jury evidence that 
     underpinned the Starr report.\454\ The Committee also ensured 
     that the minority could fully participate in the 
     investigation and hearings, including by submitting evidence, 
     objecting to witness examination and evidence, and exercising 
     co-equal subpoena authority to issue a subpoena subject to 
     overruling by the full Committee.\455\ Both Presidents 
     were thus able to present robust defenses before the 
     Committee.\456\ Indeed, President Clinton's counsel gave 
     an opening statement, the President called 14 expert 
     witnesses over two days, and the President's counsel also 
     gave a closing statement \457\ and cross-examined the 
     witnesses, including ``question[ing] Judge Starr for an 
     hour.'' \458\ In this impeachment inquiry, the House 
     Intelligence Committee fulfilled the investigatory role 
     that the House Judiciary Committee filled in prior 
     impeachments, and thus, these rights should have been 
     available in the proceedings before the Intelligence 
     Committee.

 3. The President's Counsel Must Be Allowed To Be Present at Hearings, 
       See and Present Evidence, and Cross-Examine All Witnesses

       The exact contours of the procedural protections required 
     during an impeachment investigation must, of course, be 
     adapted to the nature of that proceeding. The hallmarks of a 
     full blown trial are not required, but procedures must 
     reflect, at a minimum, basic protections that are essential 
     for ensuring a fair process that is designed to get at the 
     truth.
       The Supreme Court's ``precedents establish the general rule 
     that individuals must receive notice and an opportunity to be 
     heard before the Government deprives them'' of a 
     constitutionally protected interest.\459\ That means, at a 
     minimum, that the evidence must be disclosed to the accused, 
     and the accused must be permitted an opportunity to test and 
     respond to the evidence--particularly through ``[t]he rights 
     to confront and cross-examine witnesses,'' which ``have long 
     been recognized as essential to due process.'' \460\ For 250 
     years, ``the policy of the Anglo-American system of evidence 
     has been to regard the necessity of testing by cross-
     examination as a vital feature of the law.'' \461\ Cross-
     examination is ``the greatest legal engine ever invented for 
     the discovery of

[[Page S328]]

     truth,'' \462\ ``shed[ding] light on the witness' perception, 
     memory and narration'' \463\ and ``expos[ing] 
     inconsistencies, incompleteness, and inaccuracies in his 
     testimony.'' \464\ Thus, ``[i]n almost every setting where 
     important decisions turn on questions of fact, due process 
     requires an opportunity to confront and cross-examine adverse 
     witnesses.'' \465\ It is unthinkable that the Framers, 
     steeped in the history of Anglo-American jurisprudence, would 
     create a system that would allow the Chief Executive and 
     Commander-in-Chief of the armed forces to be impeached based 
     on a process that developed evidence without providing any of 
     the elementary procedures that the common law developed over 
     centuries for ensuring the proper testing of evidence in an 
     adversarial process.
       The most persuasive source indicating what the Constitution 
     requires in an impeachment investigation is the record of the 
     House's own past practice, as explained above.\466\ The due 
     process rights consistently afforded by the House to the 
     accused for the past 150 years have generally included the 
     right to appear and to be represented by counsel at all 
     hearings, to have access to and respond to the evidence, to 
     submit evidence and testimony, to question witnesses and 
     object to evidence, and to make opening statements and 
     closing arguments.\467\ Chairman Nadler, Chairman Schiff, 
     other House Democrats, and then-Representative Schumer have 
     repeatedly confirmed these procedural requirements.\468\

  4. The House Impeachment Inquiry Failed to Provide the Due Process 
   Demanded by the Constitution and Generated a Fundamentally Skewed 
            Record That Cannot Be Relied Upon in the Senate

       Despite clear precedent mandating due process for the 
     accused in any impeachment inquiry--and especially in a 
     presidential impeachment inquiry--House Democrats concocted a 
     wholly unprecedented three-stage process in this case that 
     denied the President fair process at every step of the way. 
     Indeed, because the process started without any actual 
     authorization from the House, committees initially made up 
     the process as they went along. In the end, all three phases 
     of the House's inquiry failed to afford the President even 
     the most rudimentary procedures demanded by the Constitution, 
     fundamental fairness, and over 150 years of precedent.

          (a) Phase I: Secret Hearings in the Basement Bunker

       The first phase involved secret proceedings in a basement 
     bunker where the President was not given any rights at all. 
     This phase consisted of depositions taken by joint hearings 
     of the House Permanent Select Committee on Intelligence 
     (HPSCI), the House Committee on Foreign Affairs, and the 
     House Committee on Oversight and Reform. To ensure there 
     would be no transparency for the President or the American 
     people, depositions were conducted in a facility designed for 
     securing highly classified information--even though all of 
     the depositions were ``conducted entirely at the unclassified 
     level.'' \469\ The President was denied any opportunity to 
     participate. He was denied the right to have counsel present. 
     He was denied the right to cross-examine witnesses, call 
     witnesses, and present evidence. He was even denied the right 
     to have Executive Branch counsel present during depositions 
     of Executive Branch officials, thereby undermining any 
     ability for the President to protect longstanding 
     constitutional privileges over Executive Branch 
     information.\470\ Members in the Republican minority on the 
     investigating committees could not provide a counterweight to 
     remedy the lack of process for the President. They were 
     denied subpoena authority to call witnesses, and they were 
     blocked even from asking questions that would ensure a 
     balanced development of the facts. For example, Chairman 
     Schiff repeatedly shut down any line of questioning that 
     would have exposed personal self-interest, prejudice, or bias 
     of the whistleblower.\471\
       Finally, House Democrats made clear that the proceedings' 
     secrecy was just a partisan stratagem. Daily leaks describing 
     purported testimony of witnesses were calculated to present 
     the public with a distorted view of what was taking place 
     behind closed doors and further the narrative that the 
     President had done something wrong.\472\
       House Democrats' assertions that the basement Star Chamber 
     hearings were justified because the House ``serves in a role 
     analogous to a grand jury and prosecutor'' \473\ are 
     baseless. The House's unbroken practice of providing due 
     process over the last 150 years confirms that the House is 
     not merely a grand jury.\474\ Chairman Nadler, other House 
     Democrats, and then-Representative Schumer rejected such 
     analogies as a ``cramped view of the appropriate role of the 
     House [that] finds no support in the Constitution and is 
     completely contrary to the great weight of historical 
     precedent.'' \475\ The Judiciary Committee's own impeachment 
     consultant and staff have rejected ``[g]rand jury analogies'' 
     as ``badly misplaced when it comes to impeachment.'' \476\
       More importantly, the narrow rationales that justify 
     limiting procedural protections in grand juries simply do not 
     apply here.\477\ For example, it is primarily grand jury 
     secrecy--not the preliminary nature of grand jury proceedings 
     in developing the basis for a charge--that ``justif[ies] the 
     limited procedural safeguards available to . . . persons 
     under investigation.'' \478\ That secrecy, in turn, promotes 
     two primary objectives. It allows an investigation to proceed 
     without notice to those under suspicion and thus may further 
     the investigation.\479\ In addition, a ``cornerstone'' 
     of grand jury secrecy is the policy of protecting the 
     public reputations of those who may be investigated but 
     never charged.\480\
       Neither rationale applied to Chairman Schiff's proceedings 
     for a straightforward reason: in relevant respects, the 
     proceedings were entirely public. Chairman Schiff made no 
     secret that the target of his investigation was President 
     Trump. He and his colleagues held news conferences to 
     announce that fact, and they leaked information intended to 
     damage the President from their otherwise secret 
     hearings.\481\ In addition, the exact witness list with the 
     dates, times, and places of witness testimony were announced 
     to the world long in advance of each hearing. And witnesses' 
     opening statements, as well as slanted summaries of their 
     testimony, were selectively leaked to the press in real time. 
     The entire direction of the investigation, as well as 
     specific testimony, was thus telegraphed to the world. These 
     acts would have violated federal criminal law if grand jury 
     rules had applied.\482\
       It is also well settled that the one-sided procedures 
     employed by Chairman Schiff were not designed to be the best 
     mechanism for getting at the truth. Grand jury procedures 
     have never been justified on the theory that they are well 
     adapted for uncovering ultimate facts. To the contrary, as 
     explained above, the Anglo-American legal system has long 
     recognized that ``adversarial testing,'' particularly cross-
     examination, ``will ultimately advance the public interest in 
     truth and fairness.'' \483\ Those essential procedural rights 
     are no less necessary in impeachment proceedings unless one 
     adopts the counterintuitive assumption that the Framers did 
     not intend an impeachment inquiry to use any of the familiar 
     mechanisms developed over centuries in the common law to get 
     at the truth.

       (b) Phase II: The Public, Ex Parte Show Trial Before HPSCI

       After four weeks of secret--and wholly unauthorized--
     hearings, House Democrats finally introduced a resolution to 
     have the House authorize an impeachment inquiry and to set 
     procedures for it. House Resolution 660, however, merely 
     compounded the fundamentally unfair procedures from the 
     secret cellar hearings by subjecting the President to a 
     second round of ex parte hearings before Chairman Schiff's 
     committee. The only difference was that this second round 
     took place in public.\484\ Thus, after screening witnesses' 
     testimony behind closed doors, Chairman Schiff moved on to a 
     true show trial--a stage-managed inquisition in front of the 
     cameras, choreographed with pre-screened testimony to build a 
     narrative aiming at a pre-determined result. The President 
     was still denied any opportunity to participate, to cross-
     examine witnesses, to present witnesses or evidence, or to 
     protect constitutionally privileged Executive Branch 
     information by having agency counsel present. All of this was 
     directly contrary to the rules that had governed the Nixon 
     and Clinton impeachment inquiries. There, the President had 
     been allowed to cross-examine any fact witnesses called by 
     the committee.\485\ In addition, the President had been 
     permitted to call witnesses, and the ranking member on the 
     investigating committee had been permitted co-equal subpoena 
     authority.\486\

    (c) Phase III: The Ignominious Rubber Stamp from the Judiciary 
                               Committee

       The House Committee on the Judiciary simply rubber-stamped 
     the ex parte record compiled by Chairman Schiff and, per the 
     Speaker's direction, relied on it to draft articles of 
     impeachment. Under House Resolution 660, it was only during 
     this third phase that the President was even nominally 
     allowed a chance to participate and some rudimentary elements 
     of process.\487\ With fact-finding already over, there was no 
     meaningful way to allow the President to use those rights for 
     a balanced factual inquiry. Instead, the Judiciary Committee 
     doubled down on using the skewed, one-sided record developed 
     by Chairman Schiff. Thus, the only procedural protections 
     that House Resolution 660 provided the President were 
     inadequate from the outset because they came far too late in 
     the proceedings to be effective. Procedural protections such 
     as cross-examination are essential as the factual record is 
     being developed. Providing process only after the record has 
     been compiled and after charges are being drafted can do 
     little to remedy the distortions built into the record. Here, 
     most witnesses testified twice under oath on the same 
     topics--once in a secret rehearsal to preview their 
     testimony, and again in public--without any cross-examination 
     by the President's counsel. Locking witnesses into their 
     stories by having them testify twice vastly reduces the 
     benefit of cross-examination. Any deviation from prior 
     testimony potentially exposes a witness to a double perjury 
     charge, and, worse, the prior ex parte testimony becomes 
     fixed in each witness's mind in place of actual memory.
       While it would have been next to impossible for a 
     proceeding before the Judiciary Committee to remedy the 
     defects in the prior two rounds of hearings, Chairman Nadler 
     had no interest in even attempting to do that. His only 
     interest was following marching orders to report articles of 
     impeachment to the House so they could be voted on before 
     Christmas. Thus, he repeatedly provided vague and inadequate 
     notice about what proceedings were planned until he 
     ultimately

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     informed the President that he had no plans for any 
     evidentiary hearings at all.
       For example, on November 26, 2019--two days before 
     Thanksgiving--Chairman Nadler informed the President and the 
     Ranking Member that the Judiciary Committee would hold a 
     hearing on December 4 vaguely limited to ``the historical and 
     constitutional basis of impeachment.'' \488\ The Chairman 
     provided no further information about the hearing, including 
     the identities of the witnesses, but nonetheless required the 
     President to indicate whether he wished to participate by 
     Sunday, December 1. Every aspect of the planning for this 
     hearing departed from the Clinton and Nixon precedents. The 
     Committee afforded the President no scheduling input, no 
     meaningful information about the hearing, and so little time 
     to prepare that it effectively denied the Administration a 
     fair opportunity to participate. The Committee ultimately 
     announced the identities of the witnesses less than two days 
     before the hearing.\489\ For a similar hearing with scholars 
     in the Clinton impeachment, the Committee provided two-and-a-
     half weeks' notice to prepare and scheduled the hearing on a 
     date suggested by the President's attorneys.\490\ President 
     Trump understandably declined to participate in that biased 
     constitutional law seminar because he could not ``fairly be 
     expected to participate in a hearing while the witnesses are 
     yet to be named and while it remains unclear whether the 
     Judiciary Committee will afford the President a fair process 
     through additional hearings.'' \491\
       Meanwhile, in a separate letter on November 29, 2019, 
     Chairman Nadler asked the President to specify, by December 
     6, how he would participate in future undefined 
     ``proceedings'' and which ``privileges'' in the Judiciary 
     Committee's Impeachment Procedures the President's counsel 
     would seek to exercise.\492\ At the same time, he gave no 
     indication as to what these ``proceedings'' would involve, 
     what subjects they would address, whether witnesses would be 
     heard (or who they would be), or when any hearings would be 
     held.\493\ To inform the President's decision, the 
     President's counsel asked Chairman Nadler for information 
     about the ``scope and nature of the proceedings'' he planned, 
     including topics of hearings, whether he intended ``to allow 
     for fact witnesses to be called,'' and whether he would allow 
     ``the President's counsel the right to cross examine fact 
     witnesses.'' \494\ The President's counsel even offered to 
     meet with Chairman Nadler to discuss a plan for upcoming 
     hearings.\495\ All to no avail--Chairman Nadler did not even 
     bother to respond.
       And the Judiciary Committee continued to hide the ball. 
     Throughout the week of December 2, the President's counsel 
     were in contact with Committee counsel trying to get answers 
     concerning what hearings were planned, so that the President 
     could determine whether and how to participate. But all that 
     Committee staff were authorized to convey was: (i) a hearing 
     on an unknown topic had been publicly announced for December 
     9; (ii) before that hearing, the Committee might be issuing 
     two additional reports (one based on the December 4 
     constitutional law seminar and one dredging up unspecified 
     aspects of Special Counsel Mueller's report); and (iii) they 
     would not have an answer to any other questions about the 
     subjects of the December 9 hearing or whether any other 
     hearings would be scheduled until after the close of business 
     on Thursday, December 5.
       On the morning of December 5, Speaker Pelosi instructed the 
     Judiciary Committee to begin drafting articles of impeachment 
     before the Committee had received any presentation on the 
     HPSCI report, heard any fact witness, or heard a single word 
     from the President in his defense.\496\ Later that day, 
     Committee counsel informed the President's counsel that--
     other than a report addressing the meaning of ``high Crimes 
     and Misdemeanors'' based on the December 4 constitutional law 
     seminar and other than a hearing on December 9 involving a 
     presentation of the HPSCI majority and minority reports 
     solely by staff--there were no immediate plans to issue any 
     other reports or have any other hearings.
       Meanwhile, Chairman Nadler was also playing hide-the-ball 
     with the minority members of his own Committee. The 
     Committee's Ranking Member, Doug Collins, sent at least seven 
     letters to Chairman Nadler trying to find out about the 
     process the Committee would follow and requesting specific 
     rights to ensure a balanced presentation of the law and 
     facts, including requesting witnesses.\497\ Chairman Nadler 
     simply ignored them. He offered only an after-the-fact 
     response \498\ that denied his request for witnesses in part 
     on the misleading claim that ``the President is not 
     requesting any witnesses,'' when it was Chairman Nadler who 
     had refused to commit to allowing the President to call 
     witnesses in the first place.\499\
       As a backdrop to all of this, Chairman Nadler had 
     threatened to invoke the unprecedented provision of the 
     Committee's Impeachment Inquiry Procedures Pursuant to House 
     Resolution 660 that allowed him to deny the President any due 
     process rights if the President continued to assert 
     longstanding privileges and immunities to protect Executive 
     Branch information and to challenge the validity of the 
     investigating committees' subpoenas.\500\ This approach also 
     departed from all precedent in the Clinton and Nixon 
     proceedings.\501\ Even though both Presidents had asserted 
     numerous privileges, the Judiciary Committee never 
     contemplated that offering the opportunity to present a 
     defense and to have a fair hearing should be conditioned on 
     forcing the President to abandon the longstanding 
     constitutional rights and privileges of the Executive Branch. 
     The Supreme Court has already addressed such Catch-22 choices 
     and has made clear that it is ``intolerable that one 
     constitutional right should have to be surrendered in order 
     to assert another.'' \502\ Conditioning access to basic 
     procedural rights on an agreement to waive other fundamental 
     rights is the same as denying procedural rights altogether.
       As a result, by the December 6 deadline, the President had 
     been left with no meaningful choice at all. The Committee was 
     already under instructions to draft articles of impeachment 
     before hearing any evidence; Chairman Nadler had kept the 
     President in the dark until the last minute about how and 
     when the Committee would proceed; and Committee counsel had 
     finally confirmed that the Committee's plan was to hear 
     solely a staff presentation of the HPSCI report and not to 
     hold any other hearings. It was abundantly clear that, if the 
     President asked to present or cross examine any witnesses, 
     any future hearings would merely be window-dressing designed 
     to place a veneer of fair process on a stage-managed show 
     trial already hurtling toward a preordained result. The 
     President would not be given any meaningful opportunity to 
     question fact witnesses or otherwise respond to the one-sided 
     factual record transmitted by HPSCI. The Judiciary 
     Committee's assertion that the President ``could have had his 
     counsel make a presentation of evidence or request that other 
     witnesses be called'' \503\ is thus entirely disingenuous. 
     Under those circumstances, the President determined that he 
     would not condone House Democrats' violations of due 
     process--and that he would not lend legitimacy to their 
     unprecedented procedures--by participating in their show 
     trial.
       Chairman Nadler ultimately refused to allow the Committee 
     to hear from a single fact witness or hear any evidence 
     first-hand. He also blatantly violated House Rules by 
     refusing to allow the minority to have a minority hearing 
     day.\504\ Instead, the Judiciary Committee simply relied on 
     the ex parte evidence gathered by Chairman Schiff's show 
     trial with no procedural protections at all. And there could 
     be no clearer admission that the evidence simply did not 
     matter than Speaker Pelosi's instruction to begin drafting 
     articles of impeachment before the Committee had even heard 
     any evidence whatsoever.\505\
       All of this conduct highlights rank hypocrisy by Chairman 
     Nadler, who, during the Clinton impeachment, decried the fact 
     that there had been ``no witness called in front of this 
     committee against the President'' and declared it ``a failure 
     of the Chairman of this committee that we are going to 
     consider voting impeachment, having heard no witnesses 
     whatsoever against the President.'' \506\ Then, Chairman 
     Nadler argued that the Judiciary Committee cannot simply 
     receive a report compiled by another entity (there, the 
     Independent Counsel) and proceed to judgment. That, in his 
     words, ``would be to say that the role of this committee of 
     the House is a mere transmission belt or rubber stamp,'' 
     \507\ and would ``conclude the inquiry expeditiously, but not 
     fairly, and not without trashing the Constitution and every 
     principle of due process and fundamental fairness that we 
     have held sacred since the Magna Carta.'' \508\ House 
     Democrats on the Judiciary Committee made the same point just 
     a few years ago in 2016: ``[i]n all modern cases, the 
     Committee has conducted an independent, formal investigation 
     into the charges underlying a resolution of impeachment--
     again, even when other authorities and other congressional 
     committees have already investigated the underlying issue.'' 
     \509\
       The House's constitutionally deficient proceedings have so 
     distorted the factual record compiled in the House that it 
     cannot constitutionally be relied upon for the Senate to 
     reach any verdict other than acquittal.

   C. The House's Inquiry Was Irredeemably Defective Because It Was 
Presided Over by an Interested Fact Witness Who Lied About Contact with 
            the Whistleblower Before the Complaint Was Filed

       The House's entire factual investigation was carefully 
     orchestrated--and restricted--by an interested fact witness: 
     Chairman Schiff. His repeated falsehoods about the President 
     leave him with no credibility whatsoever. In March 2017, 
     Chairman Schiff lied, announcing that he already had evidence 
     that the Trump campaign colluded with Russia.\510\ That was 
     proved false when the Mueller Report was released and the 
     entire Russian hoax Chairman Schiff had been peddling was 
     disproved.
       In this proceeding, Chairman Schiff violated basic fairness 
     by overseeing and prosecuting the proceedings while secretly 
     being a witness in the case. Before public release of the 
     whistleblower complaint, when asked whether he had ``heard 
     from the whistleblower,'' Chairman Schiff falsely denied 
     having ``heard from the whistleblower,'' saying: ``We have 
     not spoken directly with the whistleblower. We would like to 
     . . . But yes, we would love to talk directly with the 
     whistleblower.'' \511\ As multiple media outlets concluded, 
     that statement was ``flat-out false'' \512\--a ``[w]hopper'' 
     of a lie that earned ``four Pinnochios'' from The Washington 
     Post \513\--because it ``wrongly implied the committee had 
     not been contacted'' by the whistleblower before the 
     complaint was filed.\514\ Subsequent reporting showed that 
     Chairman Schiff's staff had not only had

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     contact with the whistleblower, but apparently played some 
     still-unverified role in advising the whistleblower before 
     the complaint was filed.\515\ And Chairman Schiff began the 
     hearings in this matter by lying once again and reading a 
     fabricated version of the President's telephone conversation 
     with President Zelensky to the American people.\516\
       Given the role that Chairman Schiff and his staff 
     apparently played in advising the whistleblower, Chairman 
     Schiff made himself a fact witness in these proceedings. The 
     American people understand that Chairman Schiff cannot 
     covertly assist with the submission of a complaint, mislead 
     the public about his involvement, and then pretend to be a 
     neutral ``investigator.'' No wonder Chairman Schiff 
     repeatedly denied requests to subpoena the whistleblower and 
     shut down any questions that he feared might identify the 
     whistleblower. Questioning the whistleblower would have 
     exposed before the American people the role Chairman Schiff 
     and his staff had in concocting the very complaint they 
     purported to be investigating.

     D. The Senate May Not Rely on a Factual Record Derived from a 
            Procedurally Deficient House Impeachment Inquiry

       The Senate may not rely on a corrupted factual record 
     derived from constitutionally deficient proceedings to 
     support a conviction of the President of the United States. 
     Nor is it the Senate's role to attempt to remedy the House's 
     errors by providing a ``do-over'' to develop the record anew 
     in the Senate. In the courts, comparable fundamental errors 
     underpinning the foundations of a case would require throwing 
     the case out. The denial of ``basic protections'' of due 
     process ``necessarily render[s]'' a proceeding 
     ``fundamentally unfair,'' precluding it from ``reliably 
     serv[ing] its function as a vehicle for determination of 
     guilt or innocence.'' \517\ A ``proceeding infected with 
     fundamental procedural error, like a void judicial judgment, 
     is a legal nullity.'' \518\ That is why, for example, 
     criminal indictments may not proceed to trial when they 
     result from ``fundamental'' errors that cause ``the 
     structural protections of the grand jury [to] have been so 
     compromised as to render the proceedings fundamentally 
     unfair.'' \519\ The same principles should apply in the 
     impeachment trial context. The Senate cannot rely on a record 
     developed in a hopelessly defective House proceeding to 
     convict the President.

  E. House Democrats Used an Unprecedented and Unfair Process Because 
 Their Goal to Impeach at Any Cost Had Nothing To Do with Finding the 
                                 Truth

       House Democrats' impeachment inquiry was never a quest for 
     the truth. Instead it was an inquisition in pursuit of an 
     offense to justify a pre-ordained outcome--impeaching 
     President Trump by any means necessary. The procedural 
     protections that the House has afforded to the accused in 
     every impeachment for the last 150 years were incompatible 
     with that agenda. Ensuring a fair process that uses time-
     tested methods for getting at the truth--like adversarial 
     cross examination of witnesses by counsel for the accused--
     takes time and it also risks undermining the accusers' 
     preferred version of the facts. But House Democrats had no 
     time. By September 2019, when the President released the 
     transcript of his telephone call with President Zelensky, the 
     2020 campaign for the presidency was already well underway, 
     and they needed a fast and tightly controlled process that 
     would yield their political goal: impeachment by Christmas.
       In fact, House Democrats have been on a crusade to impeach 
     the President since the moment he took office three years 
     ago. As Speaker Pelosi recently confirmed, her party's quest 
     for impeachment had ``been going on for 22 months . . . [t]wo 
     and a half years, actually.'' \520\ The moment that the 
     President was sworn in, two liberal advocacy groups launched 
     a campaign to impeach him.\521\ The current proceedings began 
     with a complaint prepared with the assistance of a lawyer who 
     declared in 2017 that he was already planning to use 
     ``impeachment'' to effect a ``coup.'' \522\ The first 
     resolution proposing articles of impeachment against 
     President Trump was filed before he had been in office for 
     six months.\523\ As soon as Democrats gained control of the 
     House in the 2018 midterm elections, they made clear that 
     they would stop at nothing to impeach the President. Rep. 
     Rashida Tlaib, for example, announced in January 2019: 
     ``[W]e're going to go in there and we're gonna impeach the 
     motherf****r.'' \524\
       Over the past three years, House Democrats have filed at 
     least eight resolutions to impeach the President, alleging a 
     vast range of preposterous purported offenses. They have 
     repeatedly charged the President with obstruction of justice 
     in connection with the Mueller investigation \525\--an 
     allegation that the Department of Justice resoundingly 
     rejected.\526\ One resolution sought to impeach the President 
     for protecting national security by restricting U.S. entry by 
     nationals of eight countries \527\--an action upheld by the 
     Supreme Court.\528\ Another tried to impeach the President 
     for publishing disparaging tweets about Democrat House 
     members in response to their own attacks on the 
     President.\529\ Still another gathered a hodge-podge of 
     absurd charges, including failing to nominate persons to fill 
     vacancies and insulting the press.\530\
       In this case, House Democrats ran the fastest presidential 
     impeachment fact-finding on record. They raced through their 
     entire process in less than three months from the beginning 
     of their fact-finding investigation on September 24, 2019 to 
     the adoption of articles on December 18--meeting their 
     deadline of impeachment by Christmas. That rushed three-month 
     process stands apart from every prior presidential 
     impeachment--the fastest of which took place after a fact-
     finding period nearly four times as long. Independent Counsel 
     Ken Starr received authorization to investigate the charges 
     that led to President Clinton's impeachment in January 
     1998,\531\ almost a full year before the House impeached 
     President Clinton in December 1998.\532\ Congress began 
     investigating President Nixon's conduct in February 
     1973,\533\ more than one year before July 1974, when the 
     House Judiciary Committee voted to recommend articles of 
     impeachment.\534\ The investigation into President Johnson 
     also exceeded 12 months. Except for a two-month break between 
     a vote rejecting articles of impeachment in 1867 and the 
     authorization of a second impeachment inquiry,\535\ President 
     Johnson's impeachment was investigated over 14 months from 
     January 1867 \536\ to the adoption of articles of impeachment 
     in March 1868.\537\ The two inquiries were closely 
     related,\538\ and one article of impeachment was carried over 
     from the first impeachment inquiry.\539\ The Democrats' need 
     for speed only underscores that, unlike prior impeachments, 
     these proceedings were never about conducting a serious 
     inquiry into the truth.
       Although they tried everything, Democrats pinned their 
     impeachment dreams primarily on the Mueller investigation and 
     their dogmatic faith in the myth that President Trump--or at 
     least his campaign--was somehow in league with Russia. After 
     $32 million, 2,800 subpoenas, nearly 500 search warrants, 230 
     orders for communications records, and 500 witness 
     interviews, that inquisition disproved the myth of collusion 
     between the President or his campaign and Russia. As the 
     Mueller Report informed the public, Special Counsel Mueller 
     and his team of investigators and FBI agents could not find 
     any evidence of collusion between the Trump Campaign and the 
     Russian government.\540\ While the Mueller investigation was 
     pending, though, Chairman Schiff flatly lied to the American 
     people, telling them that he was privy to `` `more than 
     circumstantial evidence' that the President's associates 
     colluded with Russia.'' \541\ He played up the Mueller 
     investigation, promising that it would show wrongdoing ``of a 
     size and scope probably beyond Watergate.'' \542\
       The damage caused by Democrats' Russian collusion delusion 
     stretches far beyond anything directly attributable to the 
     Mueller investigation. The Mueller investigation itself was 
     triggered by an FBI investigation, known as Crossfire 
     Hurricane, that involved gross abuses of FBI investigative 
     tools--including FISA orders and undercover agents. The FBI 
     abused its extraordinary authorities to spy on American 
     citizens and a major-party presidential campaign.\543\ 
     According to a report from the Inspector General of the 
     Department of Justice, these abuses included ``multiple 
     instances'' of factual assertions to the FISA court that were 
     knowingly ``inaccurate, incomplete, or unsupported by 
     appropriate documentation'' \544\--in other words, lies to 
     the FISA court. One FBI official, who openly advocated for 
     ``resistance'' against the President, even fabricated 
     evidence to persuade the FISA court to maintain surveillance 
     on an American citizen connected with the Trump 
     Campaign.\545\ Tellingly, the Inspector General could not 
     rule out the possibility that Crossfire Hurricane was 
     corrupted by political bias, because the FBI could not 
     provide ``satisfactory explanations'' for the extraordinary 
     litany of errors and abuses that plagued the investigation 
     from its inception--all of which indicated bias against the 
     President.\546\
       Despite all of this, House Democrats have refused to accept 
     the conclusions of the Mueller Report. They held hearings and 
     issued subpoenas hoping to uncover collusion where Mueller 
     had found none. Failing that, they tried to keep the 
     impeachment flame alive by manufacturing an obstruction 
     charge--even though the Department of Justice had already 
     rejected such a claim.\547\ They embarked on new fishing 
     expeditions, such as demanding the President's tax returns, 
     investigating the routine Executive Branch practice of 
     granting case-by-case exceptions to the President's 
     voluntarily undertaken ethics guidelines, and the costs of 
     the July 4 ``Salute to America'' event--all in the hope that 
     rummaging through those records might give them some new 
     basis for attacking the President.
       Democrats have been fixated on impeachment and Russia for 
     the past three years for two reasons. First, they have never 
     accepted the results of the 2016 election and have been 
     consumed by an insatiable need to justify their continued 
     belief that President Trump could not ``really'' have won. 
     Long before votes had been cast, Democrats had taken it as an 
     article of faith that Hillary Clinton would be the next 
     President. House Democrats' impeachment and Russia obsessions 
     thus stem from a pair of false beliefs held as dogma: that 
     Donald Trump should not be President and that he is President 
     only by virtue of foreign interference.
       The second reason for Democrats' fixations is that they 
     desperately need an illegitimate boost for their candidate in 
     the 2020 election, whoever that may be. Put simply, Democrats 
     have no response to the President's record of achievement in 
     restoring growth and prosperity to the American economy, 
     rebuilding America's military, and confronting America's 
     adversaries abroad. They have no policies and no ideas to 
     compete against that.

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     Instead, they are held hostage by a radical left wing that 
     has foisted on the party a radical agenda of socialism at 
     home and appeasement abroad that Democrat leaders know the 
     American people will never accept. For Democrats, President 
     Trump's record of success made impeachment an electoral 
     imperative. As Congressman Al Green explained it: ``if we 
     don't impeach the [P]resident, he will get re-elected.'' 
     \548\
       The result of House Democrats' relentless pursuit of their 
     obsessions--and their willingness to sacrifice every 
     precedent, every principle, and every procedural right 
     standing in their way--is exactly what the Framers warned 
     against: a wholly partisan impeachment. The Articles of 
     Impeachment now before the Senate were adopted without a 
     single Republican vote. Indeed, the only bipartisan aspect of 
     these articles was congressional opposition to their 
     adoption.\549\
       Democrats used to recognize that the momentous act of 
     overturning a national election by impeaching a President 
     should never take place on a partisan basis, and that 
     impeachment should not be used as a partisan tool in 
     electoral politics. As Chairman Nadler explained in 1998:
       The effect of impeachment is to overturn the popular will 
     of the voters. We must not overturn an election and remove a 
     President from office except to defend our system of 
     government or our constitutional liberties against a dire 
     threat, and we must not do so without an overwhelming 
     consensus of the American people. There must never be a 
     narrowly voted impeachment or an impeachment supported by one 
     of our major political parties and opposed by another. Such 
     an impeachment will produce divisiveness and bitterness in 
     our politics for years to come, and will call into question 
     the very legitimacy of our political institutions.\550\
       Senator Leahy agreed: ``A partisan impeachment cannot 
     command the respect of the American people. It is no more 
     valid than a stolen election.'' \551\ Chairman Schiff 
     likewise recognized that a partisan impeachment would be 
     ``doomed for failure,'' adding that there was ``little to be 
     gained by putting the country through that kind of wrenching 
     experience.'' \552\ Earlier last year even Speaker Pelosi 
     acknowledged that, ``before I think we should go down any 
     impeachment path,'' it ``would have to be so clearly 
     bipartisan in terms of acceptance of it.'' \553\
       Now, however, House Democrats have completely abandoned 
     those principles and placed before the Senate Articles of 
     Impeachment that are partisan to their core. In their rush to 
     impeach the President before Christmas, Democrats allowed 
     speed and political expediency to conquer fairness and truth. 
     As Professor Turley explained, this impeachment ``stand[s] 
     out among modern impeachments as the shortest proceeding, 
     with the thinnest evidentiary record, and the narrowest 
     grounds ever used to impeach a president.'' \554\ And as the 
     vote closed, House Democrats could not contain their glee. 
     Several Democrats clapped; others cheered; and still others 
     raised exclamations of joy on the floor of the House of 
     Representatives--until the Speaker shamed them into 
     silence.\555\
       The Framers foresaw clearly the possibility of such an 
     improper, partisan use of impeachment. As Hamilton 
     recognized, impeachment could be a powerful tool in the hands 
     of determined ``pre-existing factions.'' \556\ The Framers 
     fully recognized that ``the persecution of an intemperate or 
     designing majority in the House of Representatives'' was a 
     real danger.\557\ That is why they chose the Senate as the 
     tribunal for trying impeachments. Further removed from the 
     politics of the day than the House, they believed the Senate 
     could mitigate the ``danger that the decision'' to remove a 
     President would be based on the ``comparative strength of 
     parties'' rather ``than by the real demonstrations of 
     innocence or guilt.'' \558\ The Senate would thus ``guard[] 
     against the danger of persecution, from the prevalency of a 
     factious spirit'' in the House.\559\ It now falls to the 
     Senate to fulfill the role of guardian that the Framers 
     envisioned and to reject these wholly insubstantial Articles 
     of Impeachment that have been propelled forward by nothing 
     other than partisan enmity toward the President.
     III. Article I Fails Because the Evidence Disproves House 
         Democrats' Claims
       Despite House Democrats' unprecedented, rigged process, the 
     record they compiled clearly establishes that the President 
     did nothing wrong.
       This entire impeachment charade centers on a telephone call 
     that President Trump had with President Zelensky of Ukraine 
     on July 25, 2019. There is no mystery about what happened on 
     that call, because the President has been completely 
     transparent: he released a transcript of the call months ago. 
     And that transcript shows conclusively that the call was 
     perfectly appropriate. Indeed, the person on the other end of 
     the call, President Zelensky, has confirmed in multiple 
     public statements that the call was perfectly normal. Before 
     they had even seen the transcript, though, House Democrats 
     concocted all their charges based on distortions peddled by a 
     so-called whistleblower who had no first-hand knowledge of 
     the call. And contrary to their claims, the transcript proves 
     that the President did not seek to use either security 
     assistance or a presidential meeting as leverage to pressure 
     Ukrainians to announce investigations on two subjects: (i) 
     possible Ukrainian interference in the 2016 election; or (ii) 
     an incident in which then-Vice President Biden had forced the 
     dismissal of a Ukrainian anti-corruption prosecutor who 
     reportedly had been investigating a company (Burisma) that 
     paid Biden's son, Hunter, to sit on its board.\560\ The 
     President did not even mention the security assistance on the 
     call, and he invited President Zelensky to the White House 
     without any condition whatsoever. When the President released 
     the transcript of the call on September 25, 2019, it cut the 
     legs out from under all of House Democrats' phony claims 
     about a quid pro quo. That should have ended this entire 
     matter.
       Nevertheless, House Democrats forged ahead, determined to 
     gin up some other evidence to prop up their false narrative. 
     But even their rigged process failed to yield the evidence 
     they wanted. Instead, the record affirmatively refutes House 
     Democrats' claims. In addition to the transcript, the central 
     fact in this case is this: there are only two people who have 
     made statements on the record who say they spoke directly to 
     the President about the heart of this matter--Ambassador 
     Gordon Sondland and Senator Ron Johnson. And they both 
     confirmed that the President stated unequivocally that he 
     sought nothing and no quid pro quo of any kind from Ukraine. 
     House Democrats' claims are built entirely on speculation 
     from witnesses who had no direct knowledge about anything and 
     who never even spoke to the President about this matter.
       House Democrats' charges also rest on the fundamentally 
     mistaken premise that it would have been illegitimate for the 
     President to ask President Zelensky about either: (i) 
     Ukrainian interference in the 2016 election or (ii) the 
     Biden-Burisma affair. That is obviously wrong. Asking another 
     country to examine potential interference in a past U.S. 
     election is always permissible. Similarly, it would not have 
     been improper for the President to ask the Ukrainians about 
     an incident in which Vice President Biden had threatened 
     withholding U.S. loan guarantees to secure the dismissal of a 
     prosecutor when Biden had been operating under, at the very 
     least, the appearance of a serious conflict of interest.

 A. The Evidence Refutes Any Claim That the President Conditioned the 
Release of Security Assistance on an Announcement of Investigations by 
                                Ukraine

       The evidence squarely refutes the made-up claim that the 
     President leveraged security assistance in exchange for 
     Ukraine announcing an investigation into either interference 
     in the 2016 election or the Biden-Burisma affair.

  1. The July 25 Call Transcript Shows the President Did Nothing Wrong

       The most important piece of evidence demonstrating the 
     President's innocence is the transcript of the President's 
     July 25 telephone call with President Zelensky. In an 
     unprecedented act of transparency, the President made that 
     transcript public months ago.\561\ President Trump did not 
     even mention the security assistance on the call, and he 
     certainly did not make any connection between the assistance 
     and any investigation. Instead, the record shows that he 
     raised two issues that are entirely consistent with both his 
     authority to conduct foreign relations and his longstanding 
     concerns about how the United States spends taxpayers' money 
     on foreign aid: burden-sharing and corruption.
       Burden-sharing has been a consistent theme of the 
     President's foreign policy,\562\ and he raised burden-sharing 
     directly with President Zelensky, noting that ``Germany does 
     almost nothing for you'' and ``[a] lot of the European 
     countries are the same way.'' \563\ President Zelensky 
     acknowledged that European countries should be Ukraine's 
     biggest partner, but they surprisingly were not.\564\
       President Trump also raised concerns about corruption. He 
     first raised these concerns in connection with reports of 
     Ukrainian actions in the 2016 presidential election. Numerous 
     media outlets have reported that Ukrainian officials took 
     steps to influence and interfere in the 2016 election to 
     undermine then-candidate Trump, and three Senate committee 
     chairmen are currently investigating this interference.\565\ 
     President Trump raised ``this whole situation'' and noted 
     particularly that President Zelensky was ``surrounding 
     [him]self with some of the same people.'' \566\ President 
     Zelensky responded by noting that he had recalled the 
     Ukrainian Ambassador to the United States--an individual who 
     had sought to influence the U.S. election by authoring an 
     anti-Trump op-ed.\567\ As Democrats' witness Dr. Hill 
     testified, many officials in the State Department and NSC 
     were similarly concerned about individuals surrounding 
     Zelensky.\568\
       The President also mentioned an incident involving then-
     Vice President Joe Biden and a corruption investigation 
     involving Burisma.\569\ In that incident, a corruption 
     investigation involving Burisma had reportedly been stopped 
     after Vice President Biden threated to withhold one billion 
     dollars in U.S. loan guarantees unless the Ukrainian 
     government fired a prosecutor.\570\ At the time, Vice 
     President Biden's son, Hunter, was sitting on the Burisma's 
     board of directors.\571\ The fired prosecutor reportedly had 
     been investigating Burisma at the time.\572\ In fact, on July 
     22, 2019--just days before the July 25 call--The Washington 
     Post reported that the prosecutor ``said he believes his 
     ouster was because of his interest in [Burisma]'' and ``[h]ad 
     he remained in his post. . .he would have questioned Hunter

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     Biden.'' \573\ The incident raised important issues for anti-
     corruption efforts in Ukraine, as it raised at least the 
     possibility that a U.S. official may have been involved in 
     derailing a legitimate investigation of a foreign sovereign.
       As these examples show, President Trump raised corruption 
     issues with President Zelensky. House Democrats' claim that 
     he did not address corruption because the incidents he raised 
     were ``not part of any official briefing materials or talking 
     points'' is nonsense.\574\ President Trump spoke 
     extemporaneously and used specific examples rather than 
     following boilerplate talking points proposed by the 
     NSC.\575\ That is the President's prerogative. He is not 
     bound to raise his concerns with a foreign leader in the 
     terms a staffer placed on a briefing card.
       More important, President Zelensky has publicly confirmed 
     that he understood President Trump to be talking precisely 
     about corruption. On the call, President Zelensky 
     acknowledged that the incidents President Trump had raised 
     highlighted ``the issue of making sure to restore the 
     honesty.'' \576\ As President Zelensky later explained, he 
     understood President Trump to be saying ``we are tired of any 
     corruption things.'' \577\ President Zelensky explained that 
     his response was essentially, ``[w]e are not corrupt.'' \578\
       In contrast to the explicit discussions about burden-
     sharing and corruption, there was no discussion of the paused 
     security assistance on the July 25 call. To fill that gap, 
     House Democrats seize on President Zelensky's statement that 
     Ukraine was ``almost ready to buy more Javelins,'' and 
     President Trump's subsequent turn of the conversation as he 
     said, ``I would like you to do us a favor though because our 
     country has been through a lot and Ukraine knows a lot about 
     it.'' \579\ According to House Democrats, that sequence alone 
     somehow linked the security assistance to a ``favor'' for 
     President Trump relating to ``his reelection efforts.'' \580\ 
     That is nonsense.
       First, President Trump asked President Zelensky to ``do us 
     a favor,'' and he made clear that ``us'' referred to ``our 
     country'' as he put it, ``because our country has been 
     through a lot.'' \581\ Second, nothing in the flow of the 
     conversation suggests that the President was drawing a 
     connection between the Javelin sales and the next topics he 
     turned to.\582\ The President was clearly transitioning to a 
     new subject. Third, as Democrats' own witnesses conceded, 
     Javelins are not part of the security assistance that had 
     been temporarily paused.\583\ Accordingly, House Democrats' 
     assertion that ``President Trump froze'' Javelin sales 
     ``without explanation'' is demonstrably false.\584\ Fourth, 
     the President frequently uses variations of the phrase ``do 
     us a favor'' in the context of international diplomacy, and 
     the ``favors'' have nothing to do with the President's 
     personal interests.\585\ The President cannot be removed from 
     office because House Democrats deliberately misconstrue one 
     of his commonly used phrases.
       Notably, multiple government officials were on the July 25 
     call, and only one of them--NSC Director for European Affairs 
     Alexander Vindman--raised any concerns at the time about the 
     substance of it.\586\ His concerns were based primarily on 
     policy disagreements and a misplaced belief that the 
     President of the United States should have deferred to him on 
     matters of foreign relations. Lt. Col. Vindman testified that 
     he had ``deep policy concerns'' \587\ about Ukraine retaining 
     bipartisan support,\588\ but he ultimately conceded that the 
     President not a staffer like him sets policy.\589\
       Mr. Morrison, Lt. Col. Vindman's supervisor, affirmed that 
     ``there was nothing improper that occurred during the call.'' 
     \590\ Similarly, National Security Advisor to the Vice 
     President Keith Kellogg said that he ``heard nothing wrong or 
     improper on the call.'' \591\

 2. President Zelensky and Other Senior Ukrainian Officials Confirmed 
     There Was No -Quid Pro Quo and No Pressure on Them Concerning 
                             Investigations

       The Ukrainian government also made clear that President 
     Trump did not connect security assistance and investigations 
     on the call. The Ukrainians' official statement did not 
     reflect any such link,\592\ and President Zelensky has been 
     crystal clear about this in his public statements. He has 
     explained that he ``never talked to the President from the 
     position of a quid pro quo'' \593\ and stated that they did 
     not discuss the security assistance on the call at all.\594\ 
     Indeed, President Zelensky has confirmed several separate 
     times that his communications with President Trump were 
     ``good'' and ``normal,'' and ``no one pushed me.'' \595\ The 
     day after the call, President Zelensky met with Ambassador 
     Volker, Ambassador Sondland, and Ambassador Taylor in Kyiv. 
     Ambassador Volker reported that the Ukrainians ``thought [the 
     call] went well.'' \596\ Likewise, Ambassador Taylor reported 
     that President Zelensky stated that he was ``happy with the 
     call.'' \597\ And Ms. Croft, who met with President 
     Zelensky's chief of staff Andriy Bohdan the day after the 
     call, heard from Bohdan that the call ``was a very good call, 
     very positive, they had good chemistry.'' \598\
       Other high ranking Ukrainian officials confirmed that they 
     never perceived a connection between security assistance and 
     investigations. Ukrainian Foreign Minister Vadym Prystaiko 
     stated his belief that ``there was no pressure,'' \599\ he 
     has ``never seen a direct link between investigations and 
     security assistance,'' and ``there was no clear connection 
     between these events.'' \600\ Similarly, when President 
     Zelensky's adviser, Andriy Yermak, was asked if ``he had ever 
     felt there was a connection between the U.S. military aid and 
     the requests for investigations,'' he was ``adamant'' that 
     ``[w]e never had that feeling'' and ``[w]e did not have the 
     feeling that this aid was connected to any one specific 
     issue.'' \601\

3. President Zelensky and Other Senior Ukrainian Officials Did Not Even 
           Know That the Security Assistance Had Been Paused

       House Democrats' theory is further disproved because the 
     evidence shows that President Zelensky and other senior 
     Ukrainian officials did not even know that the aid had been 
     paused until more than a month after the July 25, 2019 call, 
     when the pause was reported in Politico at the end of 
     August.\602\ The Ukrainians could not have been pressured 
     by a pause on the aid they did not even know about.
       The uniform and uncontradicted testimony from American 
     officials who actually interacted with President Zelensky and 
     other senior Ukrainian officials was that they had no reason 
     to think that Ukraine knew of the pause until more than a 
     month after the July 25 call. Ambassador Volker testified 
     that he ``believe[s] the Ukrainians became aware of the delay 
     on August 29 and not before.'' \603\ Ambassador Taylor agreed 
     that, to the best of his knowledge, ``nobody in the Ukrainian 
     Government became aware of a hold on military aid until . . . 
     August 29th.'' \604\ Mr. Morrison concurred, testifying that 
     he had ``no reason to believe the Ukrainians had any 
     knowledge of the review until August 28, 2019.'' \605\ Deputy 
     Assistant Secretary Kent and Ambassador Sondland agreed.\606\
       Public statements from high-level Ukrainian officials have 
     confirmed the same point. For example, adviser to President 
     Zelensky Andriy Yermak told Bloomberg that President Zelensky 
     and his key advisers learned of the pause only from the 
     Politico article.\607\ And then-Foreign Minister Pavlo 
     Klimkin learned of the pause in the aid ``by reading a news 
     article,'' and Deputy Minister of Defense Oleh Shevchuk 
     learned ``through media reports.'' \608\
       Further confirmation that the Ukrainians did not know about 
     the pause comes from the fact that the Ukrainians did not 
     raise the security assistance in any of the numerous high-
     level meetings held over the summer--something Yermak told 
     Bloomberg they would have done had they known.\609\ President 
     Zelensky did not raise the issue in meetings with Ambassador 
     Taylor on either July 26 or August 27.\610\ And Volker--who 
     was in touch with the highest levels of the Ukrainian 
     government--explained that Ukrainian officials ``would 
     confide things'' in him and ``would have asked'' if they had 
     any questions about the aid.\611\ Things changed, however, 
     within hours of the publication of the Politico article, when 
     Yermak, a top adviser to President Zelensky, texted 
     Ambassador Volker to ask about the report.\612\
       The House Democrats' entire theory falls apart because 
     President Zelensky and other officials at the highest levels 
     of the Ukrainian government did not even know about the 
     temporary pause until shortly before the President released 
     the security assistance. As Ambassador Volker said: ``I don't 
     believe . . . they were aware at the time, so there was no 
     leverage implied.'' \613\ These facts alone vindicate the 
     President.

     4. House Democrats Rely Solely on Speculation Built on Hearsay

       House Democrats' charge is further disproved by the 
     straightforward fact that not a single witness with actual 
     knowledge ever testified that the President suggested any 
     connection between announcing investigations and security 
     assistance. Assumptions, presumptions, and speculation based 
     on hearsay are all that House Democrats can rely on to spin 
     their tale of a quid pro quo.
       House Democrats' claims are refuted first and foremost by 
     the fact that there are only two people with statements on 
     record who spoke directly with the President about the 
     matter--and both have confirmed that the President expressly 
     told them there was no connection whatsoever between the 
     security assistance and investigations. Ambassador Sondland 
     testified that he asked President Trump directly about these 
     issues, and the President explicitly told him that he did not 
     want anything from Ukraine:
       I want nothing. I want nothing. I want no quid pro quo. 
     Tell Zelensky to do the right thing . . . .\614\
       Similarly, Senator Ron Johnson has said that he asked the 
     President ``whether there was some kind of arrangement where 
     Ukraine would take some action and the hold would be 
     lifted,'' and the answer was clear and ``[w]ithout 
     hesitation'': ``(Expletive deleted)--No way. I would never do 
     that.'' \615\
       Although he did not speak to the President directly, 
     Ambassador Volker also explained that President Trump never 
     linked security assistance to investigations, and the 
     Ukrainians never indicated that they thought there was any 
     connection:
       [Q.] Did the President of the United States ever say to you 
     that he was not going to allow aid from the United States to 
     go to [ ] Ukraine unless there were investigations into 
     Burisma, the Bidens, or the 2016 elections?
       [A.] No, he did not.
       [Q.] Did the Ukrainians ever tell you that they understood 
     that they would not get a

[[Page S333]]

     meeting with the President of the United States, a phone call 
     with the President of the United States, military aid or 
     foreign aid from the United States unless they undertook 
     investigations of Burisma, the Bidens, or the 2016 elections?
       [A.] No, they did not.\616\
       Against all of that unequivocal testimony, House Democrats 
     base their case entirely on witnesses who offer nothing but 
     speculation. Worse, it is speculation that traces back to one 
     source: Sondland. Other witnesses repeatedly invoked things 
     that Ambassador Sondland had said in a chain of hearsay that 
     would never be admitted in any court. For example, Chairman 
     Schiff's leading witness, Ambassador Taylor, acknowledged 
     that, to the extent he thought there was a connection between 
     the security assistance and investigations, his information 
     came entirely from things that Sondland said--or (worse) 
     second-hand accounts of what Morrison told Taylor that 
     Sondland had said.\617\ Similarly, Morrison testified that he 
     ``had no reason to believe that the release of the security-
     sector assistance might be conditioned on a public statement 
     reopening the Burisma investigation until [his] September 1, 
     2019, conversation with Ambassador Sondland.'' \618\
       Sondland, however, testified unequivocally that ``the 
     President did not tie aid to investigations.'' Instead, he 
     acknowledged that any link that he had suggested was based 
     entirely on his own speculation, unconnected to any 
     conversation with the President:
       [Q.] What about the aid? [Ambassador Volker] says that they 
     weren't tied, that the aid was not tied --
       [A.] And I didn't say they were conclusively tied either. I 
     said I was presuming it.
       [Q.] Okay. And so the President never told you they were 
     tied.
       [A.] That is correct.
       [Q.] So your testimony and [Ambassador Volker's] testimony 
     is consistent, and the President did not tie aid to 
     investigations.
       [A.] That is correct.\619\
       Indeed, Sondland testified that he did ``not recall any 
     discussions with the White House on withholding U.S. security 
     assistance from Ukraine in return for assistance with the 
     President's 2020 reelection campaign.'' \620\ And he 
     explained that he ``did not know (and still do[es] not 
     know) when, why, or by whom the aid was suspended,'' so he 
     just ``presumed that the aid suspension had become linked 
     to the proposed anti-corruption statement.'' \621\ In his 
     public testimony alone, Sondland used variations of 
     ``presume,'' ``assume,'' ``guess,'' or ``speculate'' over 
     thirty times. When asked if he had any ``testimony [] that 
     ties President Trump to a scheme to withhold aid from 
     Ukraine in exchange for these investigations,'' he stated 
     that he has nothing ``[o]ther than [his] own 
     presumption,'' and he conceded that ``[n]o one on this 
     planet told [him] that Donald Trump was tying aid to 
     investigations.'' \622\ House Democrats' assertion that 
     ``President Trump made it clear to Ambassador Sondland--
     who conveyed this message to Ambassador Taylor--that 
     everything was dependent on such an announcement [of 
     investigations],'' simply misrepresents the 
     testimony.\623\

      5. The Security Assistance Flowed Without Any Statement or 
                        Investigation by Ukraine

       The made-up narrative that the security assistance was 
     conditioned on Ukraine taking some action on investigations 
     is further disproved by the straightforward fact that the aid 
     was released on September 11, 2019, without the Ukrainians 
     taking any action on investigations. President Zelensky never 
     made a statement about investigations, nor did anyone else in 
     the Ukrainian government. Instead, the evidence confirms that 
     the decision to release the aid was based on entirely 
     unrelated factors. See infra Part III.B. The paused aid, 
     moreover, was entirely distinct from U.S. sales of Javelin 
     missiles and thus had no effect on the supply of those arms 
     to Ukraine.\624\

 6. President Trump's Record of Support for Ukraine Is Beyond Reproach

       Part of House Democrats' baseless charge is that the 
     temporary pause on security assistance somehow ``compromised 
     the national security of the United States'' by leaving 
     Ukraine vulnerable to Russian aggression.\625\ The record 
     affirmatively disproves that claim. In fact, Chairman 
     Schiff's hearings established beyond a doubt that the Trump 
     Administration has been a stronger, more reliable friend to 
     Ukraine than the prior administration. Ambassador Yovanovitch 
     testified that ``our policy actually got stronger'' under 
     President Trump, largely because, unlike the Obama 
     administration, ``this administration made the decision to 
     provide lethal weapons to Ukraine'' to help Ukraine fend off 
     Russian aggression.\626\ Yovanovitch explained that ``we all 
     felt [that] was very significant.'' \627\ Ambassador Taylor 
     similarly explained that the aid package provided by the 
     Trump Administration was a ``substantial improvement'' over 
     the policy of the prior administration, because ``this 
     administration provided Javelin antitank weapons,'' which 
     ``are serious weapons'' that ``will kill Russian tanks.'' 
     \628\ Deputy Assistant Secretary Kent agreed that Javelins 
     ``are incredibly effective weapons at stopping armored 
     advance, and the Russians are scared of them,'' \629\ and 
     Ambassador Volker explained that ``President Trump approved 
     each of the decisions made along the way,'' and as a result, 
     ``America's policy towards Ukraine strengthened.'' \630\ As 
     Senator Johnson has noted, President Trump capitalized on a 
     longstanding congressional authorization that President Obama 
     did not: ``In 2015, Congress overwhelmingly authorized $300 
     million of security assistance to Ukraine, of which $50 
     million was to be available only for lethal defensive 
     weaponry. The Obama administration never supplied the 
     authorized lethal defensive weaponry, but President Trump 
     did.'' \631\
       Thus, any claim that President Trump put the security of 
     Ukraine at risk is flatly incorrect. The pause on security 
     assistance (which was entirely distinct from the Javelin 
     sales) was lifted by the end of the fiscal year, and the aid 
     flowed to Ukraine without any preconditions. Ambassador 
     Volker testified that the brief pause on releasing the aid 
     was ``not significant.'' \632\ And Under Secretary of State 
     for Political Affairs David Hale explained that ``this [was] 
     future assistance. . . . not to keep the army going now,'' 
     disproving the false claim made by House Democrats that the 
     pause caused any harm to Ukraine over the summer.\633\ In 
     fact, according to Oleh Shevchuk, the Ukrainian Deputy 
     Minister of Defense who oversaw U.S. aid shipments, ``the 
     hold came and went so quickly'' that he did not notice any 
     change.\634\

   B. The Administration Paused Security Assistance Based on Policy 
       Concerns and Released It After the Concerns Were Satisfied

       What the evidence actually shows is that President Trump 
     had legitimate policy concerns about foreign aid. As Under 
     Secretary Hale explained, foreign aid to all countries was 
     undergoing a systematic review in 2019. As he put it, ``the 
     administration did not want to take a, sort of, business-as-
     usual approach to foreign assistance, a feeling that once a 
     country has received a certain assistance package . . . it's 
     something that continues forever.'' \635\ Dr. Hill confirmed 
     this review and explained that ``there had been a directive 
     for whole-scale review of our foreign policy, foreign policy 
     assistance, and the ties between our foreign policy 
     objectives and the assistance. This had been going on 
     actually for many months.'' \636\
       With regard to Ukraine, witnesses testified that President 
     Trump was concerned about corruption and whether other 
     countries were contributing their share.

    1. Witnesses Testified That President Trump Had Concerns About 
                         Corruption in Ukraine

       Contrary to the bald assertion in the House Democrats' 
     trial brief that ``[b]efore news of former Vice President 
     Biden's candidacy broke, President Trump showed no interest 
     in corruption in Ukraine,'' \637\ multiple witnesses 
     testified that the President has long had concerns about this 
     issue. Dr. Hill, for instance, testified that she ``think[s] 
     the President has actually quite publicly said that he was 
     very skeptical about corruption in Ukraine. And, in fact, 
     he's not alone, because everyone has expressed great concerns 
     about corruption in Ukraine.'' \638\ Similarly, Ambassador 
     Yovanovitch testified that ``we all'' had concerns about 
     corruption in Ukraine and noted that President Trump 
     delivered an anti-corruption message to former Ukraine 
     President Petro Poroshenko in their first meeting in the 
     White House on June 20, 2017.\639\ NSC Senior Director 
     Morrison confirmed that he ``was aware that the President 
     thought Ukraine had a corruption problem, as did many others 
     familiar with Ukraine.'' \640\ And Ms. Croft also heard the 
     President raise the issue of corruption directly with then-
     President Poroshenko of Ukraine during a bilateral meeting at 
     the United Nations General Assembly in September 2017.\641\ 
     She also understood the President's concern ``[t]hat Ukraine 
     is corrupt'' because she had been ``tasked[] and retasked'' 
     by then-National Security Advisor General McMaster ``to write 
     [a] paper to help [McMaster] make the case to the President'' 
     in connection with prior security assistance.\642\
       Concerns about corruption in Ukraine were also entirely 
     justified. As Dr. Hill affirmed, ``eliminating corruption in 
     Ukraine was one of, if [not] the central, goals of U.S. 
     foreign policy'' in Ukraine.\643\ Virtually every witness 
     agreed that confronting corruption should be at the forefront 
     of U.S. policy with respect to Ukraine.\644\

   2. The President Had Legitimate Concerns About Foreign Aid Burden-
               Sharing, Including With Regard to Ukraine

       President Trump also has well-documented concerns regarding 
     American taxpayers being forced to cover the cost of foreign 
     aid while other countries refuse to pitch in. In fact, 
     ``another factor in the foreign affairs review'' discussed by 
     Under Secretary Hale was ``appropriate burden sharing.'' 
     \645\ The President's 2018 Budget discussed this precise 
     issue:
       The Budget proposes to reduce or end direct funding for 
     international programs and organizations whose missions do 
     not substantially advance U.S. foreign policy interests. The 
     Budget also renews attention on the appropriate U.S. share 
     of international spending at the United Nations, at the 
     World Bank, and for many other global issues where the 
     United States currently pays more than its fair 
     share.\646\
       Burden-sharing was reemphasized in the President's 2020 
     budget when it advocated for reforms that would ``prioritize 
     the efficient use of taxpayer dollars and increased burden-
     sharing to rebalance U.S. contributions to international 
     organizations.'' \647\
       House Democrats wrongly claim that ``[i]t was not until 
     September . . . that the hold, for the first time, was 
     attributed to the President's concern about other countries 
     not contributing more to Ukraine'' \648\ and

[[Page S334]]

     that President Trump ``never ordered a review of burden-
     sharing.'' \649\ These assertions are demonstrably false.
       Mr. Morrison testified that he was well aware of the 
     President's ``skeptical view'' \650\ on foreign aid generally 
     and Ukrainian aid specifically. He affirmed that the 
     President was ``trying to scrutinize [aid] to make sure the 
     U.S. taxpayers were getting their money's worth'' and 
     explained that the President ``was concerned that the United 
     States seemed to--to bear the exclusive brunt of security 
     assistance to Ukraine. He wanted to see the Europeans step up 
     and contribute more security assistance.'' \651\
       There is other evidence as well. In a June 24 email with 
     the subject line ``POTUS follow up,'' a Department of Defense 
     official relayed several questions from a meeting with the 
     President, including ``What do other NATO members spend to 
     support Ukraine?'' \652\ Moreover, as discussed above, 
     President Trump personally raised the issue of burden-sharing 
     with President Zelensky on July 25.\653\ Senator Johnson 
     similarly related that the President had shared concerns 
     about burden-sharing with him. He recounted an August 31 
     conversation in which President Trump described discussions 
     he would have with Angela Merkel, Chancellor of Germany. 
     According to Senator Johnson, President Trump explained: 
     ``Ron, I talk to Angela and ask her, `Why don't you fund 
     these things,' and she tells me, `Because we know you will.' 
     We're schmucks, Ron. We're schmucks.'' \654\ And Ambassador 
     Taylor testified that, when the Vice President met with 
     President Zelensky on September 1, the Vice President 
     reiterated that ``President Trump wanted the Europeans to do 
     more to support Ukraine.'' \655\
       President Trump's burden-sharing concerns were entirely 
     legitimate. The evidence shows that the United States pays 
     more than its fair share for Ukrainian assistance. As Deputy 
     Assistant Secretary Cooper testified, ``U.S. contributions 
     [to Ukraine] are far more significant than any individual 
     country'' and ``EU funds tend to be on the economic side,'' 
     rather than for ``defense and security.'' \656\ Even 
     President Zelensky noted in the July 25 call that the 
     Europeans were not helping Ukraine as much as they should and 
     certainly not as much as the United States.\657\

     3. Pauses on Foreign Aid Are Often Necessary and Appropriate.

       Placing a temporary pause on aid is not unusual. Indeed, 
     the President has often paused, re-evaluated, and even 
     canceled foreign aid programs. For example:
       In September 2019, the Administration announced that it was 
     withholding over $100 million in aid to Afghanistan over 
     concerns about government corruption.\658\
       In August 2019, President Trump announced that the 
     Administration and Seoul were in talks to ``substantially'' 
     increase South Korea's share of the expense of U.S. military 
     support for South Korea.\659\
       In June, President Trump cut or paused over $550 million in 
     foreign aid to El Salvador, Honduras, and Guatemala because 
     those countries were not fairly sharing the burdens of 
     preventing mass migration to the United States.\660\
       In or around June, the Administration temporarily paused 
     $105 million in military aid to Lebanon. The Administration 
     lifted the hold in December, with one official explaining 
     that the Administration ``continually reviews and thoroughly 
     evaluates the effectiveness of all United States foreign 
     assistance to ensure that funds go toward activities that 
     further U.S. foreign policy and national security 
     interests.'' \661\
       In September 2018, the Administration cancelled $300 
     million in military aid to Pakistan because it was not 
     meeting its counter-terrorism obligations.\662\
       Indeed, Under Secretary Hale agreed that ``aid has been 
     withheld from several countries across the globe for various 
     reasons, and, in some cases, for reasons that are still 
     unknown just in the past year.'' \663\ Dr. Hill similarly 
     explained that ``there was a freeze put on all kinds of aid 
     and assistance because it was in the process at the time of 
     an awful lot of reviews of foreign assistance.'' \664\ She 
     added that, in her experience, ``stops and starts [are] 
     sometimes common . . . with foreign assistance'' and that 
     ``OMB [Office of Management and Budget] holds up dollars all 
     the time,'' including in the past for dollars going to 
     Ukraine.\665\ Similarly, Ambassador Volker affirmed that aid 
     gets ``held up from time-to-time for a whole assortment of 
     reasons,'' and explained that ``[i]t's something that had 
     happened in [his] career in the past.'' \666\
       4. The aid was released after the President's concerns were 
     addressed.
       To address President Trump's concerns about corruption and 
     burden-sharing, a temporary pause was placed on the aid to 
     Ukraine. Mr. Morrison testified that ``OMB represented that . 
     . . the President was concerned about corruption in Ukraine, 
     and he wanted to make sure that Ukraine was doing enough to 
     manage that corruption.'' \667\ And OMB Deputy Associate 
     Director for National Security Mark Sandy testified that he 
     understood the pause to have been a result of the President's 
     ``concerns about the contribution from other countries to 
     Ukraine.'' \668\
       Over the course of the summer and early September, two 
     series of developments helped address the President's 
     concerns:
       First, President Zelensky secured a majority in the 
     Ukrainian parliament and was able to begin reforms under his 
     anti-corruption agenda. As Mr. Morrison explained, when 
     Zelensky was first elected, there was real ``concern about 
     whether [he] would be a genuine reformer'' and ``whether he 
     would genuinely try to root out corruption.'' \669\ It was 
     also unclear whether President Zelensky's party would ``be 
     able to get a workable majority in the Ukrainian Parliament'' 
     to implement the corruption reforms he promised.\670\ It was 
     only later in the summer that President's Zelensky's party 
     won a majority in the Rada--the Ukrainian parliament. As Mr. 
     Morrison testified, on ``the opening day of the [new] Rada,'' 
     the Ukrainians worked through ``an all-night session'' to 
     move forward with concrete reforms.\671\ Indeed, Mr. Morrison 
     and Ambassador Bolton were in Kyiv on August 27, and Mr. 
     Morrison ``observed that everybody on the Ukrainian side of 
     the table was exhausted, because they had been up for days 
     working on . . . reform legislation.'' \672\ President 
     Zelensky ``named a new prosecutor general''--a reform that 
     the NSC was ``specifically interested in.'' \673\ He also 
     ``had his party introduce a spate of legislative reforms, one 
     of which was particularly significant,'' namely, ``stripping 
     Rada members of their parliamentary immunity.'' 
     \674\ Additionally, the High Anti-Corruption Court of 
     Ukraine commenced its work on September 5, 2019.\675\
       As a result of these developments, Mr. Morrison affirmed 
     that by Labor Day there had been ``definitive developments'' 
     to ``demonstrate that President Zelensky was committed to the 
     issues he campaigned on.\676\
       Second, the President heard from multiple parties about 
     Ukraine, including trusted advisers. Senator Johnson has said 
     that he spoke to the President on August 31 urging release of 
     the security assistance. Senator Johnson has stated that the 
     President told him then that, as to releasing the aid, 
     ``[w]e're reviewing it now, and you'll probably like my final 
     decision.'' \677\ On September 3, 2019, Senators Johnson and 
     Portman, along with other members of the Senate's bipartisan 
     Ukraine Caucus, wrote to the President concerning the status 
     of the aid,\678\ and on September 5 the Chairman and Ranking 
     Member of the House Foreign Affairs Committee followed suit 
     with another letter.\679\
       Most significantly, Mr. Morrison testified that the Vice 
     President advised the President that the relationship with 
     Zelensky ``is one that he could trust.'' \680\ The Vice 
     President had met with President Zelensky in Warsaw on 
     September 1 and had heard firsthand that the new Ukrainian 
     administration was taking concrete steps to address 
     corruption and burden-sharing. On corruption reform, 
     President Zelensky ``stated his strong commitment'' and 
     shared ``some of the things he had been doing,'' specifically 
     what his party had done in the ``2 or 3 days'' since the new 
     parliament had been seated.\681\ Morrison testified that, on 
     burden-sharing, ``President Zelensky agreed with Vice 
     President Pence that the Europeans should be doing more'' and 
     ``related to Vice President Pence conversations he'd been 
     having with European leaders about getting them to do more.'' 
     \682\
       Moreover, on September 11, 2019, the President heard 
     directly from Senator Portman.\683\ Mr. Morrison testified 
     that Senator Portman made ``the case . . . to the President 
     that it was the appropriate and prudent thing to do'' to lift 
     the pause on the aid.\684\ He testified that the Vice 
     President (who had just returned from Europe on September 6) 
     and Senator Portman thus ``convinced the President that the 
     aid should be disbursed immediately'' \685\--and the 
     temporary pause was lifted after the meeting.\686\

  C. The Evidence Refutes House Democrats' Claim that President Trump 
    Conditioned a Meeting with President Zelensky on Investigations

       Lacking any evidence to show a connection between releasing 
     the security assistance and investigations, House Democrats 
     fall back on the alternative theory that President Trump used 
     a bilateral meeting as leverage to pressure Ukraine to 
     announce investigations. But no witness with any direct 
     knowledge supported that claim either. It is undisputed that 
     a bilateral presidential-level meeting was scheduled for 
     September 1 in Warsaw and then took place in New York City on 
     September 25, 2019,\687\ without Ukraine saying or doing 
     anything related to investigations.

        1. A Presidential Meeting Occurred Without Precondition

       Contrary to House Democrats' claims, the evidence shows 
     that a bilateral meeting between President Trump and 
     President Zelensky was scheduled without any connection to 
     any statement about investigations.
       Mr. Morrison--whose ``responsibilities'' included 
     ``help[ing] arrange head of state visits to the White House 
     or other head of state meetings'' \688\--testified that he 
     was trying to schedule a meeting without any restrictions 
     related to investigations. He testified that he understood 
     that arranging ``the White House visit'' was a ``do-out'' 
     that ``came from the President'' on the July 25 call,\689\ 
     and he moved forward with a scheduling proposal.\690\ He 
     worked with Ambassador Taylor and the NSC's Senior Director 
     responsible for visits to ``determine dates that would be 
     mutually agreeable to President Trump and President 
     Zelensky.'' \691\ But due to competing scheduling requests, 
     ``it became clear that the earliest opportunity for the two 
     Presidents to meet would be in Warsaw'' at the beginning of 
     September.\692\ In other words, Mr. Morrison made it clear 
     that he

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     was trying to schedule the meeting in the ordinary course. He 
     did not say that anyone told him to delay scheduling the 
     meeting until President Zelensky had made some announcement 
     about investigations. Instead, he explained that, after the 
     July 25 call, he understood that it was the President's 
     direction to schedule a visit, and he proceeded to execute 
     that direction.
       Ultimately, the notion that a bilateral meeting between 
     President Trump and President Zelensky was conditioned on a 
     statement about investigations is refuted by one 
     straightforward fact: a meeting was planned for September 1, 
     2019 in Warsaw without the Ukrainians saying a word about 
     investigations. As Ambassador Volker testified, 
     Administration officials were ``working on a bilateral 
     meeting to take place in Warsaw on the margins of the 
     commemoration on the beginning of World War II.'' \693\ 
     Indeed, by mid-August, U.S. officials expected the meeting to 
     occur,\694\ and the Ukrainian government was making 
     preparations.\695\ As it turned out, President Trump had to 
     stay in the U.S. because Hurricane Dorian rapidly intensified 
     to a Category 5 hurricane, so he sent the Vice President to 
     Warsaw in his place.\696\
       Even that natural disaster did not put off the meeting 
     between the Presidents for long. They met at the next 
     earliest possible date--September 25, 2019, on the sidelines 
     of the United Nations General Assembly. President Zelensky 
     confirmed that there were no preconditions for this 
     meeting.\697\ Nor was there anything unusual about the 
     meeting occurring in New York rather than Washington. As 
     Ambassador Volker verified, ``these meetings between 
     countries sometimes take a long time to get scheduled'' and 
     ``[i]t sometimes just doesn't happen.'' \698\
       House Democrats cannot salvage their claim by arguing that 
     the high-profile meeting in New York City did not count and 
     that only an Oval Office meeting would do. Dr. Hill explained 
     that what mattered was a bilateral presidential meeting, not 
     the location of the meeting:
       [I]t wasn't always a White House meeting per se, but 
     definitely a Presidential-level, you know, meeting with 
     Zelensky and the President. I mean, it could've taken place 
     in Poland, in Warsaw. It could've been, you know, a proper 
     bilateral in some other context. But in other words, a White 
     House-level Presidential meeting.\699\
       The Ukrainians had such a meeting scheduled for September 1 
     in Warsaw (until Hurricane Dorian disrupted plans), and the 
     meeting took place on September 25 in New York--all without 
     anyone making any statement about investigations.

  2. No Witness With Direct Knowledge Testified that President Trump 
          Conditioned a Presidential Meeting on Investigations

       House Democrats' tale of a supposed quid pro quo involving 
     a presidential meeting is further undermined by the fact that 
     it rests entirely on mere speculation, hearsay, and innuendo. 
     Not a single witness provided any first-hand evidence that 
     the President ever linked a presidential meeting to 
     announcing investigations.
       Once again, House Democrats' critical witness--Sondland--
     actually destroys their case. He is the only witness who 
     spoke directly to President Trump on the subject. And 
     Sondland testified that, when he broadly asked the President 
     what he wanted from Ukraine, the President answered 
     unequivocally: ``I want nothing. I want no quid pro quo. I 
     just want Zelensky to do the right thing, to do what he ran 
     on.'' \700\
       Sondland clearly stated that ``the President never 
     discussed'' a link between investigations and a White House 
     meeting,\701\ and Sondland's mere presumptions about such a 
     link are not evidence. As he put it, the most he could do is 
     ``repeat . . . what [he] heard through Ambassador Volker from 
     Giuliani,'' \702\ who, he ``presumed,'' spoke to the 
     President on this issue.\703\ But Ambassador Volker testified 
     unequivocally that there was no connection between the 
     meeting and investigations:
       Q. Did President Trump ever withhold a meeting with 
     President Zelensky or delay a meeting with President Zelensky 
     until the Ukrainians committed to investigate the allegations 
     that you just described concerning the 2016 Presidential 
     election?
       A. The answer to the question is no, if you want a yes-or-
     no answer. But the reason the answer is no is we did have 
     difficulty scheduling a meeting, but there was no linkage 
     like that.
       Q. You said that you were not aware of any linkage between 
     the delay in the Oval Office meeting between President Trump 
     and President Zelensky and the Ukrainian commitment to 
     investigate the two allegations as you described them, 
     correct?
       A. Correct.\704\
       Sondland confirmed the same point. When asked if ``the 
     President ever [told him] personally about any preconditions 
     for anything,'' Sondland responded, ``No.'' \705\ And when 
     asked if the President ever ``told [him] about any 
     preconditions for a White House meeting,'' he again 
     responded, ``[p]ersonally, no.'' \706\ No credible testimony 
     has been advanced supporting House Democrats' claim of a quid 
     pro quo.

D. House Democrats' Charges Rest on the False Premise That There Could 
    Have Been No Legitimate Purpose To Ask President Zelensky About 
Ukrainian Involvement in the 2016 Election and the Biden-Burisma Affair

       The charges in Article I are further flawed because they 
     rest on the transparently erroneous proposition that it would 
     have been illegitimate for the President to mention two 
     matters to President Zelensky: (i) possible Ukrainian 
     interference in the 2016 election; and (ii) an incident in 
     which then-Vice President Biden forced the dismissal of a 
     Ukrainian anti-corruption prosecutor who reportedly had been 
     investigating Burisma. House Democrats' characterizations of 
     the President's conversation are false. Moreover, as House 
     Democrats frame their charges, to prove the element of 
     ``corrupt motive'' at the heart of Article I, they must 
     establish (in their own words) that the only reason for 
     raising those matters would have been ``to obtain an improper 
     personal political benefit.'' \707\ And as they cast their 
     case, any investigation into those matters would have been 
     ``bogus'' or a ``sham'' because, according to House 
     Democrats, neither investigation would have been ``premised 
     on any legitimate national security or foreign policy 
     interest.'' \708\ That is obviously incorrect.
       It would have been entirely proper for the President to ask 
     President Zelensky to find out about any role that Ukraine 
     played in the 2016 presidential election. Uncovering 
     potential foreign interference in U.S. elections is always a 
     legitimate goal. Similarly, it also would have been proper to 
     ask about an incident in which Vice President Biden actually 
     leveraged the threat of withholding one billion dollars in 
     U.S. loan guarantees to secure the dismissal of a Ukrainian 
     prosecutor who was reportedly investigating Burisma--at a 
     time when his son, Hunter, was earning vast sums for sitting 
     on Burisma's board.\709\ House Democrats' own witnesses 
     established ample justification for asking questions about 
     the Biden-Burisma affair, as they acknowledged that Vice 
     President Biden's conduct raises, at the very least, the 
     appearance of a conflict of interest.\710\

    1. It Was Entirely Appropriate for President Trump To Ask About 
          Possible Ukrainian Interference in the 2016 Election

       House Democrats' theory that it would have been improper 
     for President Trump to ask President Zelensky about any role 
     that Ukraine played in interfering with the 2016 election 
     makes no sense. Uncovering any form of foreign interference 
     in a U.S. presidential election is squarely a matter of 
     national interest. In this case, moreover, there is abundant 
     information already in the public domain suggesting that 
     Ukrainian officials systematically sought to interfere in the 
     2016 election to support one candidate: Hillary Clinton.
       To give just a few examples, a former Democratic National 
     Committee (DNC) consultant, Alexandra Chalupa, admitted to a 
     reporter that Ukraine's embassy in the United States was 
     ``helpful'' in her efforts to collect dirt on President 
     Trump's then-campaign manager, Paul Manafort.\711\ As 
     Politico reported, ``Chalupa said the [Ukrainian] embassy 
     also worked directly with reporters researching Trump, 
     Manafort and Russia to point them in the right directions.'' 
     \712\ A former political officer in that embassy also claimed 
     the Ukrainian government coordinated directly with the DNC to 
     assist the Clinton campaign in advance of the 2016 
     presidential election.\713\ And Nellie Ohr, a former 
     researcher for the firm that hired a foreign spy to produce 
     the Steele Dossier, testified to Congress that Serhiy 
     Leshchenko, then a member of Ukraine's Parliament, also 
     provided her firm with information as part of the firm's 
     opposition research on behalf of the DNC and the Clinton 
     Campaign.\714\ Even high-ranking Ukrainian government 
     officials played a role. For example, Arsen Avakov, Ukraine's 
     Minister of Internal Affairs, called then-candidate Trump 
     ``an even bigger danger to the US than terrorism.'' \715\
       At least two news organizations conducted their own 
     investigations and concluded Ukraine's government sought to 
     interfere in the 2016 election. In January 2017, Politico 
     concluded that ``Ukrainian government officials tried to help 
     Hillary Clinton and undermine Trump by publicly questioning 
     his fitness for office.'' \716\ And on the other side of the 
     Atlantic, a separate investigation by The Financial Times 
     confirmed Ukrainian election interference. The newspaper 
     found that opposition to President Trump led ``Kiev's wider 
     political leadership to do something they would never have 
     attempted before: intervene, however indirectly, in a US 
     election.'' \717\ These efforts were designed to undermine 
     Trump's candidacy because, as one member of the Ukrainian 
     parliament put it, the majority of Ukrainian politicians were 
     ``on Hillary Clinton's side.'' \718\
       Even one of House Democrats' own witnesses, Dr. Hill, 
     acknowledged that some Ukrainian officials ``bet on Hillary 
     Clinton winning the election,'' and so it was ``quite 
     evident'' that ``they were trying to curry favor with the 
     Clinton campaign,'' including by ``trying to collect 
     information . . . on Mr. Manafort and on other people as 
     well.'' \719\
       If even a fraction of all this is true, Ukrainian 
     interference in the 2016 election is squarely a matter of 
     national interest. It is well settled that the United States 
     has a ``compelling interest . . . in limiting the 
     participation of foreign citizens in activities of American 
     democratic self-government, and in thereby preventing foreign 
     influence over the U.S. political process.'' \720\ Congress 
     has forbidden foreigners' involvement in American 
     elections.\721\ And President Trump made clear more than a 
     year ago that ``the United States will not tolerate any form 
     of foreign meddling in our elections'' during his 
     Administration.\722\ Even Chairman Schiff is on

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     record agreeing that the Ukrainian efforts to aid the Clinton 
     campaign described above would be ``problematic,'' if 
     true.\723\
       A request for Ukraine's assistance in this case also would 
     have been particularly appropriate because the Department of 
     Justice had already opened a probe on a similar subject 
     matter to examine the origins of foreign interference in the 
     2016 election that led to the false Russian-collusion 
     allegations against the Trump Campaign. In May of last year, 
     Attorney General Barr publicly announced that he had 
     appointed U.S. Attorney John Durham to lead a review of the 
     origins and conduct of the Department of Justice's Russia 
     investigation and targeting of members of the Trump campaign, 
     including any potential wrongdoing.\724\ As of October, it 
     was publicly revealed that aspects of the probe had shifted 
     to a criminal investigation.\725\ As the White House 
     explained when the President announced measures to ensure 
     cooperation across the federal government with Mr. Durham's 
     probe, his investigation will ``ensure that all Americans 
     learn the truth about the events that occurred, and the 
     actions that were taken, during the last Presidential 
     election and will restore confidence in our public 
     institutions.'' \726\
       Asking for foreign assistance is also routine. Such 
     requests for cooperation are common and take many different 
     forms, both formal and informal.\727\ Requests can be made 
     pursuant to a Mutual Legal Assistance Treaty, and the U.S. 
     has such a treaty with Ukraine that specifically authorizes 
     requests for cooperation.\728\ There can also be informal 
     requests for assistance.\729\ Because the President is the 
     Chief Executive and chief law enforcement officer of the 
     federal government--as well as the ``sole organ of the 
     federal government in the field of international relations'' 
     \730\--requesting foreign assistance is well within his 
     ordinary role.
       Given the self-evident national interest at stake in 
     identifying any Ukrainian role in the 2016 election, House 
     Democrats resort to distorting the President's words. They 
     strain to recast his request to uncover historical truth 
     about the last election as if it were something relevant only 
     for the President's personal political interest in the next 
     election. Putting words in the President's mouth, House 
     Democrats pretend that, because the President mentioned a 
     hacked DNC server, he must have been pursuing a claim that 
     Ukraine ``rather than Russia'' had interfered in the 2016 
     election \731\--and that assertion, they claim, was relevant 
     solely for boosting President Trump's 2020 presidential 
     campaign. But that convoluted chain of reasoning is 
     hopelessly flawed.
       To start, simply asking about any Ukrainian involvement in 
     the 2016 election--including with respect to hacking a DNC 
     server--does not imply that Russia did not attempt to 
     interfere with the 2016 election. It is entirely possible 
     that foreign nationals from more than one country sought to 
     interfere in our election by different means (or coordinated 
     means), and for different reasons. Uncovering all the facts 
     about any interference benefits the United States by laying 
     bare all foreign attempts to meddle in our elections. And if 
     the facts uncovered end up having any influence on the 2020 
     election, that would not be improper. House Democrats cannot 
     place an inquiry into historical facts off limits based on 
     fears that the facts might harm their interests in the next 
     election.
       In addition, House Democrats have simply misrepresented 
     President Trump's words. The President did not ask narrowly 
     about a DNC server alone, but rather raised a whole 
     collection of issues related to the 2016 election. President 
     Trump introduced the topic by noting that ``our country has 
     been through a lot,'' \732\ which referred to the entire 
     Mueller investigation and false allegations about the Trump 
     Campaign colluding with Russia. He then broadly expressed 
     interest in ``find[ing] out what happened with this whole 
     situation'' with Ukraine.\733\ After mentioning a DNC server, 
     the President made clear that he was casting a wider net as 
     he said that ``[t]here are a lot of things that went on'' and 
     again indicated that he was interested in ``the whole 
     situation.'' \734\ He then noted his concern that President 
     Zelensky was ``surrounding [him]self with some of the same 
     people.'' \735\ President Zelensky clearly understood this to 
     be a reference to Ukrainian officials who had sought to 
     undermine then-candidate Trump during the campaign, as he 
     responded by immediately noting that he ``just recalled our 
     ambassador from [the] United States.'' \736\ That ambassador, 
     of course, had penned a harsh, undiplomatic op-ed criticizing 
     then-candidate Trump, and it had been widely reported that a 
     DNC operative met with Ukrainian embassy officials during the 
     campaign to dig up information detrimental to President 
     Trump's campaign.\737\
       Notably, Democrats have not always believed that asking 
     Ukraine for assistance in uncovering foreign election 
     interference constituted a threat to the Republic. To the 
     contrary, in 2018, three Democratic Senators--Senators 
     Menendez, Leahy, and Durbin--asked Ukraine to cooperate with 
     the Mueller investigation and ``strongly encourage[d]'' then-
     Prosecutor General Yuriy Lutsenko to ``halt any efforts to 
     impede cooperation.'' \738\ Not a single Democrat in either 
     house has called for sanctions against them. Nothing that 
     President Trump said went further than the senators' request, 
     and efforts to claim that it was somehow improper are rank 
     hypocrisy.

2. It Would Have Been Appropriate for President Trump To Ask President 
                Zelensky About the Biden-Burisma Affair

       House Democrats' theory that there could not have been any 
     legitimate basis for a President of the United States to 
     raise the Biden-Burisma affair with President Zelensky is 
     also wrong. The following facts have been publicly reported:
       Burisma is a Ukrainian energy company with a reputation for 
     corruption. Lt. Col. Vindman called it a ``corrupt entity.'' 
     \739\ It was founded by a corrupt oligarch, Mykola 
     Zlochevsky, who has been under several investigations for 
     money laundering.\740\
       Deputy Assistant Secretary of State Kent testified that 
     Burisma's reputation was so poor that he dissuaded the United 
     States Agency for International Development (USAID) from co-
     sponsoring an event with Burisma. He testified that he did 
     not think co-sponsorship with a company of Burisma's 
     reputation was ``appropriate for the U.S. Government.'' \741\
       In April 2014, Hunter Biden was recruited to sit on 
     Burisma's board.\742\ At that time, his father had just been 
     made the ``public face of the [Obama] administration's 
     handling of Ukraine,'' \743\ and Britain's Serious Fraud 
     Office (SFO) had just recently frozen $23 million in accounts 
     linked to Zlochevsky as part of a money-laundering 
     investigation.\744\ Zlochesvsky fled Ukraine sometime in 
     2014.\745\
       Hunter Biden had no known qualifications for serving on 
     Burisma's board of directors, and just two months before 
     joining the board, he had been discharged from the Navy 
     Reserve for testing positive for cocaine on a drug test.\746\ 
     He himself admitted in a televised interview that he would 
     not have gotten the board position ``if [his] last name 
     wasn't Biden.'' \747\
       Nevertheless, Hunter Biden was paid more than board members 
     at energy giants like ConocoPhillips.\748\
       Multiple witnesses said it appeared that Burisma hired 
     Hunter Biden for improper reasons.\749\
       Hunter's role on the board raised red flags in several 
     quarters. Chris Heinz, the step-son of then-Secretary of 
     State John Kerry, severed his business relationship with 
     Hunter, citing Hunter's ``lack of judgment'' in joining the 
     Burisma board as ``a major catalyst.'' \750\
       Contemporaneous press reports openly speculated that 
     Hunter's role with Burisma might undermine U.S. efforts--led 
     by his father--to promote an anti-corruption message in 
     Ukraine.\751\ Indeed, The Washington Post reported that 
     ``[t]he appointment of the vice president's son to a 
     Ukrainian oil board looks nepotistic at best, nefarious at 
     worst.'' \752\
       Within the Obama Administration, Hunter's position caused 
     the special envoy for energy policy, Amos Hochstein, to 
     ``raise[] the matter with Biden.'' \753\ Deputy Assistant 
     Secretary of State Kent testified that he, too, voiced 
     concerns with Vice President Biden's office.\754\
       In fact, every witness who was asked agreed that Hunter's 
     role created at least the appearance of a conflict of 
     interest for his father.\755\
       On February 2, 2016, the Ukrainian Prosecutor General 
     obtained a court order to seize Zlochevsky's property.\756\
       According to press reports, Vice President Biden then spoke 
     with Ukraine's President Poroshenko three times by telephone 
     on February 11, 18, and 19, 2016.\757\
       Vice President Biden has openly bragged that, around that 
     time, he threatened President Poroshenko that he would 
     withhold one billion dollars in U.S. loan guarantees unless 
     the Ukrainians fired the Prosecutor General who was 
     investigating Burisma.\758\
       Deputy Assistant Secretary Kent testified that the 
     Prosecutor General's removal ``became a condition of the loan 
     guarantee.'' \759\
       On March 29, 2016, Ukraine's parliament dismissed the 
     Prosecutor General.\760\ In September 2016, a Kiev court 
     cancelled an arrest warrant for Zlochevsky.\761\
       In January 2017, Burisma announced that all cases against 
     the company and Zlochevsky had been closed.\762\
       On these facts, it would have been wholly appropriate for 
     the President to ask President Zelensky about the whole 
     Biden-Burisma affair. The Vice President of the United 
     States, while operating under an apparent conflict of 
     interest, had possibly used a billion dollars in U.S. loan 
     guarantees to force the dismissal of a prosecutor who may 
     have been pursuing a legitimate corruption investigation. In 
     fact, on July 22, 2019--just days before the July 25 call--
     The Washington Post reported that the fired prosecutor ``said 
     he believes his ouster was because of his interest in 
     [Burisma]'' and ``[h]ad he remained in his post . . . he 
     would have questioned Hunter Biden.'' \763\ Even if the Vice 
     President's motives were pure, the possibility that a U.S. 
     official used his position to derail a meritorious 
     investigation made the Biden-Burisma affair a legitimate 
     subject to raise. Indeed, any President would have wanted to 
     make clear both that the United States was not placing any 
     inquiry into the incident off limits and that, in the future, 
     there would be no efforts by U.S. officials do something as 
     ``horrible'' as strong-arming Ukraine into dropping 
     corruption investigations while operating under an obvious 
     conflict of interest.\764\
       As the transcript shows, President Zelensky recognized 
     precisely the point. He responded to President Trump by 
     noting that ``[t]he issue of the investigation of the case is 
     actually the issue of making sure to restore the honesty[.]'' 
     \765\

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       It is absurd for House Democrats to argue that any 
     reference to the Biden-Burisma affair had no purpose other 
     than damaging the President's potential political opponent. 
     The two participants on the call--the leaders of two 
     sovereign nations--clearly understood the discussion to 
     advance the U.S. foreign policy interest in ensuring that 
     Ukraine's new President felt free, in President Zelensky's 
     words, to ``restore the honesty'' to corruption 
     investigations.\766\
       Moreover, House Democrats' accusations rest on the false 
     and dangerous premise that Vice President Biden somehow 
     immunized his conduct (and his son's) from any scrutiny by 
     declaring his run for the presidency. There is no such rule 
     of law. It certainly was not a rule applied when President 
     Trump was a candidate. His political opponents called for 
     investigations against him and his children almost 
     daily.\767\ Nothing in the law requires the government to 
     turn a blind eye to potential wrongdoing based on a person's 
     status as a candidate for President of the United States. If 
     anything, the possibility that Vice President Biden may 
     ascend to the highest office in the country provides a 
     compelling reason for ensuring that, when he forced Ukraine 
     to fire its Prosecutor General, his family was not corruptly 
     benefitting from his actions.
       Importantly, mentioning the whole Biden-Burisma affair 
     would have been entirely justified as long as there was a 
     reasonable basis to think that looking into the matter would 
     advance the public interest. To defend merely asking a 
     question, the President would not bear any burden of showing 
     that Vice President Biden (or his son) actually committed any 
     wrongdoing.
       By contrast, under their own theory of the case, for the 
     House Managers to carry their burden of proving that merely 
     raising the matter was ``illegitimate,'' they would have to 
     prove that raising the issue could have no legitimate purpose 
     whatsoever. Their theory is obviously false. And especially 
     on this record, the House Managers cannot possibly carry that 
     burden, because no such definitive proof exists. Nobody, not 
     even House Democrats' own witnesses, could testify that the 
     Bidens' conduct did not at least facially raise an appearance 
     of a conflict of interest. And while House Democrats 
     repeatedly insist that any suggestions that Vice President 
     Biden or his son did anything wrong are ``debunked conspiracy 
     theories'' and ``without merit,'' \768\ they lack any 
     evidence to support those bald assertions, because they 
     have steadfastly cut off any real inquiry into the Bidens' 
     conduct. For example, they have refused to call Hunter 
     Biden to testify.\769\ Instead, they have been adamant 
     that Americans must simply accept the diktat that the 
     Bidens' conduct could not possibly have been part of a 
     course of conduct in which the Office of the Vice 
     President was misused to protect the financial interests 
     of a family member.
       The Senate cannot accept House Democrats' mere say-so as 
     proof. Especially in the context of this wholly partisan 
     impeachment, House Democrats' assurance of, ``trust us, 
     there's nothing to see here,'' is not a permissible 
     foundation for building a case to remove a duly elected 
     President from office--especially given Chairman Schiff's 
     track record for making false claims in order to damage the 
     President.\770\
     IV. The Articles Are Structurally Deficient and Can Only 
         Result in Acquittal
       The Articles also suffer from a fatal structural defect. 
     Put simply, the articles are impermissibly duplicitous--that 
     is, each article charges multiple different acts as possible 
     grounds for sustaining a conviction.\771\ The problem with an 
     article offering such a menu of options is that the 
     Constitution requires two-thirds of Senators present to agree 
     on the specific basis for conviction. A vote on a duplicitous 
     article, however, could never provide certainty that a two-
     thirds majority had actually agreed upon a ground for 
     conviction. Instead, such a vote could be the product of an 
     amalgamation of votes resting on several different theories, 
     no single one of which would have garnered two-thirds support 
     if it had been presented separately. Accordingly, duplicitous 
     articles like those exhibited here are facially 
     unconstitutional.

  A. The Constitution Requires Two-Thirds of Senators To Agree on the 
   Specific Act that Is the Basis for Conviction and Thus Prohibits 
                          Duplicitous Articles

       In impeachment trials, the Constitution mandates that ``no 
     Person shall be convicted without the Concurrence of two 
     thirds of the Members present.'' \772\ That provision 
     requires two-thirds agreement on the specific act that 
     warrants conviction. That is why the Senate has repeatedly 
     made clear in prior impeachments that acquittal is required 
     when duplicitous articles are presented.
       In the Clinton impeachment,\773\ for example, Senator Carl 
     Levin explained his vote to acquit by pointing out that the 
     House had ``made a significant and irreparable mistake in the 
     actual drafting of the articles.'' \774\ Because each article 
     alleged multiple acts of wrongdoing, it would be 
     ``impossible'' ever to determine ``whether a two-thirds 
     majority of the Senate actually agreed on a particular 
     allegation.'' \775\ Senator Charles Robb echoed those 
     concerns, explaining that ``the unconstitutional bundling of 
     charges'' in these articles ``violates this constitutional 
     requirement'' of two-thirds agreement to convict.\776\ As he 
     pointed out, because Article II, in particular, ``contain[ed] 
     7 subparts each alleging a separate act of obstruction of 
     justice, the bundling of these allegations would allow 
     removal of the President if only 10 Senators agreed on each 
     of the 7 separate subparts.'' \777\ Senator Chris Dodd 
     agreed, explaining that ``[t]his smorgasbord approach to the 
     allegations'' was a threshold legal flaw that even called for 
     dismissal outright and pointed to the ``deeply troubling 
     prospect'' of ``convict[ing] and remov[ing] without two-
     thirds of the Senate agreeing on precisely what [the 
     President] did wrong.'' \778\
       The Senate similarly rejected a duplicitous article against 
     President Andrew Johnson. That article alleged that Johnson 
     had declared in a speech that the Thirty-Ninth Congress was 
     not lawful and that he committed three different acts in 
     pursuit of that declaration.\779\ In opposing the article, 
     Senator John Henderson emphasized ``the great difficulty'' 
     presented by the omnibus article in ascertaining ``what it 
     really charges.'' \780\ Senator Garrett Davis similarly 
     complained that the allegations were apparently ``drawn with 
     studied looseness, duplicity, and vagueness, as with the 
     purpose to mislead'' and should have ``been separately'' and 
     ``distinctly stated.'' \781\
       The Senate has also rejected unconstitutionally duplicitous 
     articles of impeachment against judges. In the impeachment of 
     Judge Nixon, for example, Senator Frank Murkowski rejected 
     the ``the omnibus nature of article III,'' which charged the 
     judge with making multiple different false statements, and he 
     ``agree[d] with the argument that the article could easily be 
     used to convict Judge Nixon by less than the super majority 
     vote required by the Constitution.'' \782\ Senator Herbert 
     Kohl explained why this defect was fatal: ``The House is 
     telling us that it's OK to convict Judge Nixon on [the 
     article] even if we have different visions of what he did 
     wrong. But that's not fair to Judge Nixon, to the Senate, or 
     to the American people.'' \783\

           B. The Articles Are Unconstitutionally Duplicitous

       Here, each Article is impermissibly duplicitous. Each 
     Article presents a smorgasbord of multiple, independent acts 
     as possible bases for conviction. Under the umbrella charge 
     of ``abuse of power,'' Article I offers Senators a menu of at 
     least four different bases for conviction: (1) ``corruptly'' 
     requesting that Ukraine announce an investigation into the 
     Biden-Burisma affair; (2) ``corruptly'' requesting that 
     Ukraine announce an investigation into alleged Ukrainian 
     interference in the 2016 election; (3) ``corrupt[ly]'' 
     conditioning the release of Ukraine's security assistance on 
     these investigations; and (4) ``corrupt[ly]'' conditioning a 
     White House meeting on these investigations.\784\ Article II 
     similarly invites Senators to pick and choose among at least 
     10 different bases for obstruction including: (1) directing 
     the White House and agencies, ``without lawful cause or 
     excuse,'' not to produce documents in response to a 
     congressional subpoena; or (2) directing one or more of nine 
     different individuals, ``without lawful cause or excuse,'' 
     not to testify in response to a congressional subpoena.\785\
       As a result, the Articles invite the danger of an 
     unconstitutional conviction if less than two-thirds of 
     Senators agree that any particular act was an abuse of power 
     or obstruction. With at least four independent bases alleged 
     for abuse of power, Article I invites conviction if as few as 
     18 Senators agree that any one alleged act occurred and 
     constituted an abuse of power.
       The deficiency in the articles cannot be remedied by 
     dividing the articles, because that is prohibited.\786\ The 
     only constitutional option is to reject the articles and 
     acquit the President.


                               CONCLUSION

       The Articles of Impeachment presented by House Democrats 
     are constitutionally deficient on their face. The theories 
     underpinning them would do lasting damage to the separation 
     of powers under the Constitution and to our structure of 
     government. The Articles are also the product of an 
     unprecedented and unconstitutional process that denied the 
     President every basic right guaranteed by the Due Process 
     Clause and fundamental principles of fairness. These Articles 
     reflect nothing more than the ``persecution of an intemperate 
     or designing majority in the House of Representatives'' \787\ 
     that the Framers warned against. The Senate should reject the 
     Articles of Impeachment and acquit the President immediately.
           Respectfully submitted,
     Jay Alan Sekulow,
       Counsel to President Donald J. Trump, Washington, DC.
     Pat A. Cipollone,
       Counsel to the President, The White House.
       January 20, 2020.


                                ENDNOTES

       1. U.S. Const. art. II, Sec. 4.
       2. 4 William Blackstone, Commentaries on the Laws of 
     England *256.
       3. See Impeachment Inquiry into President Donald J. Trump: 
     Constitutional Grounds for Presidential Impeachment Before 
     the H.R. Comm. on the Judiciary, 116th Cong. (2019) (written 
     statement of Professor Jonathan Turley, Geo. Wash. Univ. Law 
     Sch., at 15, https://perma.cc/QU4H-FZC4); H.R. Res. 611, 
     106th Cong. (1998); H.R. Comm. on the Judiciary, Impeachment 
     of William Jefferson Clinton, President of the United States, 
     H.R. Rep. No.

[[Page S338]]

     105-830, 105th Cong. 143 (1998) (additional views of Rep. 
     Bill McCollum); H.R. Comm. on the Judiciary, Impeachment of 
     Richard M. Nixon, President of the United States, H.R. Rep. 
     No. 93-1305, 93d Cong. 1-3 (1974).
       4. H.R. Comm. on the Judiciary, Impeachment of Donald J. 
     Trump, President of the United States, H.R. Rep. No. 116-346, 
     116th Cong. 99 (2019) (HJC Report).
       5. Id.
       6. Id. at 103; see also Trial Mem. of the U.S. House of 
     Representatives at 4.
       7. U.S. Const. art. II, Sec. 1.
       8. HJC Report at 101.
       9. See id. at 102.
       10. H.R. Res. 755, 116th Cong. art. II (2019).
       11. This advice was memorialized in a written opinion on 
     January 19, 2020, which is attached as Appendix C. See 
     Memorandum from Steven A. Engel, Assistant Attorney General, 
     Office of Legal Counsel, to Pat A. Cipollone, Counsel to the 
     President, Re: House Committees' Authority to Investigate for 
     Impeachment, at 1 (Jan. 19, 2020) (Impeachment Inquiry 
     Authorization).
       12. Testimonial Immunity Before Congress of the Former 
     Counsel to the President, 43 Op. O.L.C. _, *1 (May 20, 2019); 
     see also infra note 296 (collecting prior opinions).
       13. See Assertion of Executive Privilege with Respect to 
     Clemency Decision, 23 Op. O.L.C. 1, 5 (1999) (emphasis 
     added).
       14. Exclusion of Agency Counsel from Congressional 
     Depositions in the Impeachment Context, 43 Op. O.L.C. _, at 
     *4 (Nov. 1, 2019).
       15. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) 
     (citations omitted); see also, e.g., United States v. 
     Goodwin, 357 U.S. 368, 372 (1982) (``For while an individual 
     certainly may be penalized for violating the law, he just as 
     certainly may not be punished for exercising a protected 
     statutory or constitutional right.'').
       16. Harvey Berkman, Top Profs: Not Enough to Impeach, The 
     National Law J. (Oct. 5, 1998) (quoting Professor Tribe), 
     reprinted in 144 Cong. Rec. H10031 (1998).
       17. H.R. Comm. on the Judiciary, 105th Cong., Ser. No. 18, 
     Impeachment Inquiry: William Jefferson Clinton, President of 
     the United States, Consideration of Articles of Impeachment 
     398 (Comm. Print 1998).
       18. See Transcript of Pelosi Weekly Press Conference Today 
     (Oct. 2, 2019) (statement of Rep. Adam Schiff), https://
perma.cc/RM2N-F2RC.
       19. Turley Written Statement, supra note 3, at 42 (emphasis 
     added) (ellipsis in original).
       20. 3 The Debates in the Several State Conventions, on the 
     Adoption of the Federal Constitution, as Recommended by the 
     General Convention at Philadelphia, in 1787, 401 (J. Elliot 
     ed. 1836).
       21. U.S. Const. art. I, Sec. 2, cl. 5.
       22. Watkins v. United States, 354 U.S. 178, 200-10 (1957); 
     see also United States v. Rumely, 345 U.S. 41, 42-43 (1953); 
     Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978) (``To 
     issue a valid subpoena, . . . a committee or subcommittee 
     must conform strictly to the resolution establishing its 
     investigatory powers . . . .''); Tobin v. United States, 306 
     F.2d 270, 275 (D.C. Cir. 1962) (``[T]he first issue we must 
     decide is whether Congress gave the Judiciary Committee . . . 
     authority . . . to conduct the sweeping investigation 
     undertaken in this case.'').
       23. Speaker Pelosi Announcement of Impeachment Inquiry, C-
     SPAN (Sept. 24, 2019), https://www.c-span.org/video/?464684-
1/speaker-pelosi-announces-formal-impeachment-inquiry-
president-trump.
       24. See Impeachment Inquiry Authorization, infra Appendix 
     C, at 1-3.
       25. Perry v. Leeke, 488 U.S. 272, 283 n.7 (1989) (quoting 5 
     J. Wigmore, Evidence Sec. 1367 (J. Chadbourn ed. 1974)).
       26. See, e.g., Andrew Prokop, Why Democrats Are Moving So 
     Fast on Impeachment, Vox (Dec. 5, 2019), https://perma.cc/
H7BR-HNC4 (``House leaders have signaled they hope to wrap up 
     proceedings in their chamber before Congress leaves for the 
     December holidays . . . . `Wouldn't that be a great Christmas 
     gift for it to all wrap up by Christmas?' Rep. Val Demings 
     (D-FL) asked.''); Mary Clare Jalonick, What's Next in 
     Impeachment: A Busy December, and on to 2020, AP News (Nov. 
     23, 2019), https://perma.cc/2HJH-QLMR (``Time is running 
     short if the House is to vote on impeachment by Christmas, 
     which Democrats privately say is the goal.'').
       27. Examining the Allegations of Misconduct Against IRS 
     Commissioner John Koskinen (Part II): Hearing Before the H.R. 
     Comm. on the Judiciary, 114th Cong. 3 (2016) (statement of 
     Rep. Jerrold Nadler).
       28. Background and History of Impeachment: Hearing Before 
     the Subcomm. on the Constitution of the H.R. Comm. on the 
     Judiciary, 105th Cong. 17 (1998) (statement of Rep. Jerrold 
     Nadler).
       29. Alex Rogers, Whistleblower Went to Intelligence 
     Committee for Guidance Before Filing Complaint, CNN (Oct. 2, 
     2019), https://perma.cc/5NVZ-W78H.
       30. Zack Stanton, Pelosi: Unless We Impeach Trump, `Say 
     Hello to a President-King', Politico (Dec. 18, 2019), https:/
     /perma.cc/XLX5-XE7Z.
       31. Matea Gold, The Campaign to Impeach President Trump Has 
     Begun, Wash. Post (Jan. 20, 2017), https://perma.cc/2376-
 PS6U.
       32. Mark S. Zaid (@MarkSZaidEsq), Twitter (Jan. 30, 2017 
     6:54 PM), https://perma.cc/BFV6-MKRE.
       33. Katelyn Polantz, Mueller Investigation Cost $32 
     Million, Justice Department Says, CNN (July 24, 2019), 
     https://perma.cc/DX6K-58Y3; Special Counsel Robert S. 
     Mueller, III, Report on the Investigation into Russian 
     Interference in the 2016 Presidential Election, vol. I at 13 
     (Mar. 2019), https://perma.cc/EGB4-WA76.
       34. Rebecca Shabad and Alex Moe, Impeachment Inquiry Ramps 
     up as Judiciary Panel Adopts Procedural Guidelines, NBC News 
     (Sept. 12, 2019), https://perma.cc/4H7N-6ZPD.
       35. See Clerk, H.R., Final Vote Results for Roll Call 695 
     on Agreeing to Article I of the Resolution (Dec. 18, 2019), 
     http://clerk house.gov/evs/2019/roll695.xml; Clerk, H.R., 
     Final Vote Results for Roll Call 696 on Agreeing to Article 
     II of the Resolution (Dec. 18, 2019), http://clerk.house.gov/
evs/2019/roll696.xml.
       36. 144 Cong. Rec. H11786 (1998) (statement of Rep. Jerrold 
     Nadler).
       37. 145 Cong. Rec. S1582 (1999) (statement of Sen. Patrick 
     Leahy).
       38. 144 Cong. Rec. H11786 (1998) (statement of Rep. Jerrold 
     Nadler).
       39. Nicole Gaudiano and Eliza Collins, Exclusive: Nancy 
     Pelosi Vows `Different World' for Trump, No More `Rubber 
     Stamp' in New Congress, USA Today (Jan. 3, 2019), https://
perma.cc/55PK-3PZL.
       40. Tierney Sneed, DOJ Declined to Act on Criminal Referral 
     in Trump's Ukraine Smear Campaign, Talking Points Memo (Sept. 
     25, 2019), https://perma.cc/HA3M-FBGU (quoting Statement of 
     Kerri Kupec, Spokesperson for the Department of Justice).
       41. Impeachment Inquiry: Ambassador Gordon Sondland Before 
     the H.R. Permanent Select Comm. on Intelligence, 116th Cong. 
     148-49 (Nov. 20, 2019) (Sondland Public Hearing).
       42. Id. at 150-51.
       43. G. Sondland Interview Tr. at 297:22-298:1 (Oct. 17, 
     2019).
       44. Sondland Public Hearing, supra note 41, at 70.
       45. K. Volker Interview Tr. at 36:1-9 (Oct. 3, 2019).
       46. Id.
       47. Sondland Public Hearing, supra note 41, at 40.
       48. Letter from Sen. Ron Johnson to Jim Jordan, Ranking 
     Member, H.R. Comm. on Oversight & Reform, and Devin Nunes, 
     Ranking Member, H.R. Permanent Select Comm. on Intelligence, 
     at 6 (Nov. 18, 2019).
       49. Memorandum of Tel. Conversation with President Zelensky 
     of Ukraine, at 2 (July 25, 2019) (July 25 Call Mem.). The 
     transcript is attached as Appendix A.
       50. M. Yovanovitch Dep. Tr. at 140:24-141:3 (Oct. 11, 
     2019); see also Impeachment Inquiry: Ambassador Marie 
     ``Masha'' Yovanovitch Before The H.R. Permanent Select Comm. 
     on Intelligence, 116th Cong. 76-77 (Nov. 15, 2019) 
     (Yovanovitch Public Hearing).
       51. W. Taylor Dep. Tr. at 155:2-156:6 (Oct. 22, 2016).
       52. Turley Written Statement, supra note 3, at 4.
       53. Trial Mem. of the U.S. House of Representatives at 24; 
     HJC Report at 4, 6.
       54. H.R. Res. 755 art. I.
       55. Trial Mem. of the U.S. House of Representatives at 2, 
     18; HJC Report at 10.
       56. Impeachment Inquiry: Dr. Fiona Hill and Mr. David 
     Holmes Before the H.R. Permanent Select Comm. on 
     Intelligence, 116th Cong. 112:2-9 (Nov. 21, 2019) (Hill-
     Holmes Public Hearing).
       57. Michael Kranish & David L. Stern, As Vice President, 
     Biden Said Ukraine Should Increase Gas Production. Then His 
     Son Got a Job with a Ukrainian Gas Company, Wash. Post (July 
     22, 2019), https://perma.cc/6JD2-KFCN (``In an email 
     interview with The Post, Shokin [the fired prosecutor] said 
     he believes his ouster was because of his interest in 
     [Burisma] . . . . Had he remained in his post, Shokin said, 
     he would have questioned Hunter Biden.'').
       58. Compare Tobias Hoonhout, Hunter Biden Served as 
     `Ceremonial Figure' on Burisma Board for $80,000 Per Month, 
     National Rev. (Oct. 18, 2019), https://perma.cc/7WBU-XHCJ 
     (reporting Hunter Biden's monthly compensation to be $83,333 
     monthly, or nearly $1 million per year), with 2019 Proxy 
     Statement, ConocoPhillips, at 30 (Apr. 1, 2019), https://
perma.cc/8HK2-XJTL (showing director compensation averaging 
     approximately $302,000), and ConocoPhillips, Fortune 500, 
     https://fortune.com/fortune500/2019/conocophillips/ (listing 
     ConocoPhillips as #86).
       59. See, e.g., Hill-Holmes Public Hearing, supra note 56, 
     at 89-90; Impeachment Inquiry: Ms. Jennifer Williams & Lt. 
     Col. Alexander Vindman, 116th Cong. 129 (Nov. 19, 2019); 
     Yovanovitch Public Hearing, supra note 50, at 135-36; Taylor 
     Dep. Tr. at 90:3-5; G. Kent Interview Tr. at 227:3-8 (Oct. 
     15, 2019); Impeachment Inquiry: Ambassador William B. Taylor 
     & Mr. George Kent Before the H.R. Permanent Select Comm. on 
     Intelligence, 116th Cong. 148:23-25 (Nov. 13, 2019); see also 
     Sondland Public Hearing, supra note 41, at 171.
       60. Adam Taylor, Hunter Biden's New Job at a Ukrainian Gas 
     Company is a Problem for U.S. Soft Power, Wash. Post (May 14, 
     2014), https://perma.cc/7DNH-GPF4.
       61. Kent Interview Tr. at 227:1-23; Adam Entous, Will 
     Hunter Biden Jeopardize His Father's Campaign?, The New 
     Yorker (July 1, 2019), https://perma.cc/WB24-FTJG.
       62. Rules of Procedure and Practice in the Senate when 
     Sitting on Impeachment Trials, Rule XXIII (1986), in Senate 
     Manual Containing the Standing Rules, Orders, Laws and 
     Resolutions Affecting the Business of the United States 
     Senate, S. Doc. 113-1, 113th Cong. 228 (2014).
       63. The Federalist No. 65, at 400 (Alexander Hamilton) 
     (Clinton Rossiter ed., 1961).
       64. Letter from Thomas Jefferson to James Madison (Feb. 15, 
     1798), in 3 Memoir, Correspondence, and Miscellanies, from 
     the Papers of Thomas Jefferson 373 (Thomas Jefferson Randolph 
     ed., 1830).

[[Page S339]]

  

       65. 2 Joseph Story, Commentaries on the Constitution 
     Sec. 743 (1833).
       66. The Federalist No. 66, at 402 (Alexander Hamilton) 
     (Clinton Rossiter ed., 1961).
       67. Trial of Andrew Johnson, President of the United 
     States, Before the Senate of the United States on Impeachment 
     by the House of Representatives for High Crimes and 
     Misdemeanors, 40th Cong., vol. III, at 328 (1868) (opinion of 
     Sen. Lyman Trumbull).
       68. The Federalist No. 65, at 400 (Alexander Hamilton) 
     (Clinton Rossiter ed., 1961).
       69. U.S. Const. art. I, Sec. 3, cl. 6.
       70. Michael J. Gerhardt, The Lessons of Impeachment 
     History, 67 Geo. Wash. L. Rev. 603, 617 (1999) (noting that, 
     ``[g]iven the division of impeachment authority between the 
     House and the Senate, the Senate has . . . the opportunity to 
     review House decisions on what constitutes an impeachable 
     offense'' and has rejected House judgments in the past).
       71. Proceedings in the Trial of Andrew Johnson, President 
     of the United States, Before the U.S. Senate on Articles of 
     Impeachment, 40th Cong. 524 (1868).
       72. Id.
       73. See, e.g., Raoul Berger, Impeachment: The 
     Constitutional Problems 86 (1973).
       74. U.S. Const. art. II, Sec. 4.
       75. Circuit City Stores v. Adams, 532 U.S. 105, 114-15 
     (2001) (quoting 2A N. Singer, Sutherland on Statutes and 
     Statutory Construction Sec. 47.17 (1991)).
       76. Background and History of Impeachment: Hearing Before 
     the Subcomm. on the Constitution of the H.R. Comm. on the 
     Judiciary, 105th Cong. 69 (1998) (Clinton Judiciary Comm. 
     Hearing on Background of Impeachment) (statement of Professor 
     Matthew Holden, Jr., Univ. of Va., Dept. of Gov't and Foreign 
     Affairs) (``[I]t seems that this late-added provision refers 
     to such `other high Crimes and Misdemeanors,' as would be 
     comparable in their significance to `treason' and `bribery.' 
     ''); Arthur M. Schlesinger, Jr., Reflections on Impeachment, 
     67 Geo. Wash. L. Rev. 693, 693 (1999) (``According to the 
     legal rule of construction ejusdem generis, the other high 
     crimes and misdemeanors must be on the same level and of the 
     same quality as treason and bribery.'').
       77. U.S. Const. art. III, Sec. 3, cl. 1. This definition is 
     repeated in the United States criminal code: ``Whoever, owing 
     allegiance to the United States, levies war against them or 
     adheres to their enemies, giving them aid and comfort within 
     the United States or elsewhere, is guilty of treason . . . 
     .'' 18 U.S.C. Sec. 2381 (2018).
       78. Proceedings of the U.S. Senate in the Impeachment Trial 
     of President William Jefferson Clinton, Vol. IV: Statements 
     of Senators Regarding the Impeachment Trial of William 
     Jefferson Clinton, S. Doc. 106-4 at 2861 (1999) (Clinton 
     Senate Trial) (statement of Sen. Patrick J. Leahy).
       79. See Clinton Judiciary Comm. Hearing on Background of 
     Impeachment, supra note 76, at 40 (statement of Gary L. 
     McDowell, Director, Inst. for U.S. Studies, Univ. of London) 
     (``[T]he most dominant source of authority on the common law 
     for those who wrote and ratified the Constitution was Sir 
     William Blackstone and his justly celebrated Commentaries on 
     the Laws of England (1765-69). That was a work that was 
     described by Madison in the Virginia ratifying convention as 
     nothing less than `a book which is in every man's hand.' '').
       80. 4 William Blackstone, Commentaries on the Laws of 
     England *139.
       81. Akhil Reed Amar, On Impeaching Presidents, 28 Hofstra 
     L. Rev. 291, 302 (1999).
       82. Charles L. Black, Jr. & Philip Bobbitt, Impeachment: A 
     Handbook 110 (2018). Gouverneur Morris's comments at the 
     Constitutional Convention indicate the paradigm of bribery 
     that the Framers had in mind as he cited King Louis XIV of 
     France's bribe of England's King Charles II and argued, ``no 
     one would say that we ought to expose ourselves to the danger 
     of seeing the first Magistrate in foreign pay without being 
     able to guard [against] it by displacing him.'' 2 The Records 
     of the Federal Convention of 1787, at 68-69 (Max Farrand ed., 
     1911).
       83. U.S. Const. art. I, Sec. 3, cl. 6; art. II, Sec. 4.
       84. U.S. Const. art. I, Sec. 3, cl. 7 (emphasis added).
       85. U.S. Const. art. I, Sec. 3, cl. 6 (emphasis added).
       86. Id.
       87. U.S. Const. art. III, Sec. 2, cl. 3 (``The Trial of all 
     Crimes, except in Cases of Impeachment, shall be by Jury . . 
     . .''); U.S. Const. art. II, Sec. 2, cl. 1 (``[H]e shall have 
     Power to grant Reprieves and Pardons for Offenses against the 
     United States, except in Cases of Impeachment.'').
       88. See 4 Blackstone, Commentaries *74-75.
       89. See Berger, supra note 73, at 71.
       90. Id. at 86-87. Shortly before the Convention agreed to 
     the ``high Crimes and Misdemeanors'' standard, delegates 
     rejected the use of ``high misdemeanor'' in the Extradition 
     Clause because ``high misdemeanor'' was thought to have ``a 
     technical meaning too limited.'' 2 Records of the Federal 
     Convention, supra note 82, at 443; see also Berger, supra 
     note 73, at 74.
       91. 4 Blackstone, Commentaries *256 (emphasis added). 
     Blackstone, in fact, listed numerous ``high misdemeanors'' 
     that might subject an official to impeachment, including 
     ``maladministration.'' Id. at *121.
       92. 2 Records of the Federal Convention, supra note 82, at 
     499.
       93. Id. at 550.
       94. Id.
       95. Id.
       96. Id. ``The conscious and deliberate character of [the 
     Framers'] rejection [of `maladministration'] is accentuated 
     by the fact that a good many state constitutions of the time 
     did have `maladministration' as an impeachment ground.'' 
     Black & Bobbitt, supra note 82, at 27.
       97. 2 Records of the Federal Convention, supra note 82, at 
     64.
       98. Id. at 337.
       99. 4 The Debates in the Several State Conventions on the 
     Adoption of the Federal Constitution, at 127 (Jonathan Elliot 
     2nd ed. 1987).
       100. 3 The Debates in the Several State Conventions on the 
     Adoption of the Federal Constitution, at 401 (Jonathan Elliot 
     2nd ed. 1987).
       101. Berger, supra note 73, at 86.
       102. Clinton Senate Trial, supra note 78, vol. IV at 2842 
     (statement of Sen. Patrick J. Leahy); see also id. at 2883 
     (statement of Sen. James M. Jeffords) (``The framers 
     intentionally set this standard at an extremely high level to 
     ensure that only the most serious offenses would justify 
     overturning a popular election.'').
       103. 2 Joseph Story, Commentaries on the Constitution 
     Sec. 749 (1833); see also 1 James Bryce, The American 
     Commonwealth 283 (1888) (``Impeachment . . . is the heaviest 
     piece of artillery in the congressional arsenal, but because 
     it is so heavy it is unfit for ordinary use. It is like a 
     hundred-ton gun which needs complex machinery to bring it 
     into position, an enormous charge of powder to fire it, and a 
     large mark to aim at.'').
       104. Black & Bobbitt, supra note 82, at 111.
       105. The Declaration of Independence para. 2 (U.S. 1776).
       106. Laurence H. Tribe, Defining ``High Crimes and 
     Misdemeanors'': Basic Principles, 67 Geo. Wash. L. Rev. 712, 
     723 (1999).
       107. 144 Cong. Rec. H10018 (1998) (statement of Rep. 
     Jerrold Nadler).
       108. Id. at H11786 (statement of Rep. Jerrold Nadler).
       109. Clinton Senate Trial, supra note 78, vol. IV at 2578, 
     2580 (statement of Sen. Joseph R. Biden, Jr.).
       110. U.S. Const. art. II, Sec. 1.
       111. See Clinton v. Jones, 520 U.S. 681, 712 (1997) 
     (Breyer, J., concurring in the judgment).
       112. Tribe, supra note 106, at 723. The unique importance 
     of a presidential impeachment is reflected in the text of the 
     Constitution as it requires, in contrast to all other cases 
     of impeachment, that the Chief Justice of the United States 
     preside over any Senate trial of a President. U.S. Const. 
     art. I, Sec. 3, cl. 6.
       113. Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982).
       114. U.S. Const. art. II, Sec. 3.
       115. U.S. Const. art. II, Sec. 2, cl. 1.
       116. United States v. Curtiss-Wright Export Corp., 299 U.S. 
     304, 320 (1936).
       117. Memorandum from Robert G. Dixon, Jr., Assistant 
     Attorney General, Office of Legal Counsel, Re: Amenability of 
     the President, Vice President and other Civil Officers to 
     Federal Criminal Prosecution While in Office, at 32 (Sept. 
     24, 1973).
       118. Clinton Senate Trial, supra note 78, vol. IV at 2793 
     (statement of Sen. Bob Graham).
       119. H.R. Res. 611, 105th Cong. (1998); H.R. Comm. on the 
     Judiciary, Impeachment of William Jefferson Clinton, 
     President of the United States, H.R. Rep. No. 105-830, 105th 
     Cong. 143 (1998) (additional views of Rep. Bill McCollum) 
     (``President Clinton actively sought to thwart the due 
     administration of justice by repeatedly committing the felony 
     crimes of perjury, witness tampering, and obstruction of 
     justice.'').
       120. H.R. Comm. on the Judiciary, Impeachment of Richard M. 
     Nixon, President of the United States, H.R. Rep. No. 93-1305, 
     93d Cong. 1-4 (1974); see also id. at 3 (alleging that Nixon 
     ``violat[ed] the constitutional rights of citizens'' and 
     ``contravene[ed] the laws governing agencies of the executive 
     branch.'').
       121. Id. at 34 (asserting that Nixon ``caused action . . . 
     to cover up the Watergate break-in. This concealment required 
     perjury, destruction of evidence, obstruction of justice--all 
     of which are crimes'').
       122. Article II claimed that President Nixon ``violat[ed] 
     the rights of citizens,'' ``contraven[ed] the laws governing 
     agencies of the executive branch,'' and ``authorized and 
     permitted to be maintained a secret investigative unit within 
     the Office of the President . . . [that] engaged in covert 
     and unlawful activities.'' Id. at 3. Although the House 
     Judiciary Committee's report described Article II generally 
     as involving ``abuse of the powers of the office of 
     President,'' id. at 139, that was not the actual charge 
     included in the articles of impeachment. The actual charges 
     in the recommended article of impeachment included specific 
     violations of laws.
       123. H.R. Rep. Com. No. 7, 40th Cong. 60 (1867) (emphasis 
     added).
       124. Cong. Globe, 40th Cong., 2d Sess. app. 63 (1867).
       125. Michael Les Benedict, The Impeachment and Trial of 
     Andrew Johnson 102 (1973).
       126. Cong. Globe, 40th Cong., 2d Sess., 1616-18, 1638-42 
     (1868).
       127. See, e.g., Berger, supra note 73, at 56-57. Some 
     scholars dispute the characterization that many judicial 
     impeachments do not involve charges that amount to violations 
     of law. See, e.g., Frank Thompson, Jr., & Daniel H. Pollitt, 
     Impeachment of Federal Judges: An Historical Overview, 49 
     N.C. L. Rev. 87, 118 (1970) (``Except for a few abberations 
     [sic] in the early-1800[s] period of unprecedented political 
     upheaval, Congress has refused to impeach a judge for lack of 
     `good behaviour' unless the behavior was both job-related and 
     criminal.'').

[[Page S340]]

  

       128. U.S. Const. art. III, 1; see also John R. Labovitz, 
     Presidential Impeachment 92-93 (1978) (The Good Behavior 
     Clause ``could be interpreted as a separate standard for the 
     impeachment of judges or it could be interpreted as an aid in 
     applying the term `high crimes and misdemeanors' to judges. 
     Whichever interpretation was adopted, it was clear that the 
     clause made a difference in judicial impeachments, 
     confounding the application of these cases to presidential 
     impeachment.''); Clinton Senate Trial, supra note 78, vol. IV 
     at 2692 (statement of Sen. Max Cleland) (citing the ``Good 
     Behaviour'' clause and explaining ``that there is indeed a 
     different legal standard for impeachment of Presidents and 
     Federal judges'').
       129. Amar, supra note 81, at 304.
       130. See Cass R. Sunstein, Impeaching the President, 147 U. 
     Pa. L. Rev. 279, 304 (1998).
       131. Black & Bobbitt, supra note 82, at 119.
       132. Clinton Senate Trial, supra note 78, vol. IV at 2575 
     (statement of Sen. Joseph R. Biden, Jr.). Numerous other 
     Senators distinguished the lower standard for judicial 
     impeachments. See, e.g., id. at 2692 (statement of Sen. Max 
     Cleland) (``After review of the record, historical 
     precedents, and consideration of the different roles of 
     Presidents and Federal judges, I have concluded that there is 
     indeed a different legal standard for impeachment of 
     Presidents and Federal judges.''); id. at 2811 (statement of 
     Sen. Edward M. Kennedy) (``Removal of the President of the 
     United States and removal of a Federal judge are vastly 
     different.'').
       133. Sunstein, supra note 130, at 300; see also Clinton 
     Judiciary Comm. Hearing on Background of Impeachment, supra 
     note 76, at 350 (statement of Professors Frank O. Bowman, 
     III, Stephen L. Sepinuck, Gonzaga University School of Law) 
     (``[C]omparative analysis suggests that Congress has applied 
     a discernibly different standard to the removal of 
     judges.'').
       134. To the extent that the Senate voted in the impeachment 
     trial of Judge Claiborne not to require all Senators to apply 
     the beyond-a-reasonable-doubt standard, see 132 Cong. Rec. 
     29,153 (1986), that decision in a judicial impeachment has 
     little relevance here.
       135. Clinton Senate Trial, supra note 78, vol. IV at 3052 
     (statement of Sen. Russell D. Feingold); see also id. at 2563 
     (statement of Sen. Patty Murray) (``If we are to remove a 
     President for the first time in our Nation's history, none of 
     us should have any doubts.'').
       136. See, e.g., Proceedings of the U.S. Senate in the 
     Impeachment Trial of President William Jefferson Clinton, 
     Volume II: Floor Trial Proceedings, S. Doc. 106-4 at 1876 
     (1999) (statement of Sen. Chris Dodd); Clinton Senate Trial, 
     supra note 78, vol. IV at 2548 (statement of Sen. Kay Bailey 
     Hutchison); id. at 2559 (statement of Sen. Kent Conrad); id. 
     at 2562 (statement of Sen. Tim Hutchinson); id. at 2642 
     (statement of Sen. George V. Voinovich).
       137. Id. at 2623 (statement of Sen. Barbara A. Mikulski).
       138. U.S. Const. art. I, Sec. 2, cl. 5; id. at Sec. 3, cl. 
     6.
       139. 1 John Ash, New and Complete Dictionary of the English 
     Language (1775) (definition of ``impeachment'': ``[a] public 
     charge of something criminal, an accusation'').
       140. Black & Bobbitt, supra note 82, at 14.
       141 Cole v. Arkansas, 333 U.S. 196, 201 (1948) (emphases 
     added).
       142. Stirone v. United States, 361 U.S. 212, 217 (1960).
       143. Id.
       144. July 25 Call Mem., infra Appendix A.
       145. Julian Barns et al., Schiff Got Early Account of 
     Accusations as Whistle-Blower's Concerns Grew, N.Y. Times 
     (Oct. 2, 2019), https://perma.cc/5KWF-U7ZS.
       146. Ellen Nakashima, Whistleblower Sought Informal 
     Guidance from Schiff's Committee Before Filing Complaint 
     Against Trump, Wash. Post (Oct. 2, 2019), https://perma.cc/
23UT-BGJL.
       147. Mark S. Zaid (@MarkSZaidEsq), Twitter (Jan. 30, 2017, 
     6:54 PM), https://perma.cc/Z9LS-TDM2 (``#coup has started. 
     First of many steps. #rebellion. #impeachment will follow 
     ultimately. #lawyers.'').
       148. Letter from IC Staffer to Richard Burr, Chairman, S. 
     Comm. on Intelligence, and Adam Schiff, Chairman, H.R. 
     Permanent Select Comm. on Intelligence (Aug. 12, 2019), 
     https://perma.cc/MT4D-634A.
       149. Letter from Michael K. Atkinson, Inspector General of 
     the Intelligence Community, to Joseph Maguire, Acting 
     Director of National Intelligence, at 5 (Aug. 26, 2019), 
     https://perma.cc/2SV7-BUP5.
       150. Speaker Pelosi Announcement of Impeachment Inquiry, C-
     SPAN (Sept. 24, 2019), https://www.c-span.org/video/?464684-
1/speaker-pelosi-announces-formal-impeachment-inquiry-
president-trump.
       151. Donald J. Trump (@realDonaldTrump), Twitter (Sept. 24, 
     2019, 11:12 AM), https://perma.cc/UZ4E-D3ST (``I am currently 
     at the United Nations representing our Country, but have 
     authorized the release tomorrow of the complete, fully 
     declassified and unredacted transcript of my phone 
     conversation with President Zelensky of Ukraine.'').
       152. July 25 Call Mem., infra Appendix A.
       153. Whistleblower Disclosure: Hearing Before the H.R. 
     Permanent Select Comm. on Intelligence, 116th Cong. (Sept. 
     26, 2019).
       154. K. Volker Interview Tr. (Oct. 3, 2019).
       155. H.R. Res. 660, 116th Cong. (2019).
       156. Id.
       157. Press Release, H.R. Permanent Select Comm. on 
     Intelligence, House Intelligence Committee Releases Draft 
     Report as Part of Impeachment Inquiry (Dec. 3, 2019), https:/
     /perma.cc/B23P-7NBD.
       158. The Impeachment Inquiry into President Donald J. 
     Trump: Constitutional Grounds for Presidential Impeachment: 
     Hearing Before the H.R. Comm. on Judiciary, 116th Cong. (Dec. 
     4, 2019).
       159. Nicholas Fandos, Pelosi Says House Will Draft 
     Impeachment Charges Against Trump, N.Y. Times (Dec. 5, 2019), 
     https://perma.cc/T7SC-W2VX.
       160. The Impeachment Inquiry into President Donald J. 
     Trump: Presentations from the House Permanent Select Comm. on 
     Intelligence and House Judiciary Comm.: Hearing Before the 
     H.R. Comm. on Judiciary, 116th Cong. (Dec. 9, 2019).
       161. Press Release, H.R. Comm. on Judiciary, Chairman 
     Nadler Announces the Introduction of Articles of Impeachment 
     Against President Donald J. Trump (Dec. 10, 2019), https://
perma.cc/9ERV-9PZX.
       162. House Judiciary Passes Articles of Impeachment Against 
     President Trump, C-SPAN (Dec. 13, 2019), https://www.c-
     span.org/video/?467395-1/house-judiciary-committee-approves-
     articles-impeachment-23-17.
       163. H.R. Res. 755, 116th Cong. (2019); Clerk, H.R., Final 
     Vote Results for Roll Call 695 on Agreeing to Article I of 
     the Resolution (Dec. 18, 2019), http://clerk.house.gov/evs/
2019/roll695.xml; Clerk, H.R., Final Vote Results for Roll 
     Call 696 on Agreeing to Article II of the Resolution (Dec. 
     18, 2019), http://clerk.house.gov/evs/2019/roll696.xml.
       164. HJC Report at 129-30.
       165. U.S. Const. art. I, Sec. 3, cl. 6.
       166. U.S. Const. art. II, Sec. 4.
       167. HJC Report at 44.
       168. See id. at 48-53; Trial Mem. of U.S. House of 
     Representatives at 10-11.
       169. See supra Standards Part B.1.
       170. U.S. Const. art. II, Sec. 4.
       171. 4 William Blackstone, Commentaries on the Laws of 
     England *256 (emphasis added).
       172. Background and History of Impeachment: Hearing Before 
     the Subcomm. on the Constitution of the H.R. Comm. on the 
     Judiciary, 105th Cong. 48 (1998) (``Of these distinctive 
     features, the one of greatest contemporary concern is the 
     founders' choice of the words--treason, bribery, and other 
     high crimes and misdemeanors'--for the purpose of narrowing 
     the scope of the federal impeachment process.'') (statement 
     of Professor Michael Gerhardt) (Clinton Judiciary Comm. 
     Hearing on Background of Impeachment).
       173. The Federalist No. 48, at 309 (James Madison) (Clinton 
     Rossiter ed., 1961).
       174. Jack N. Rakove, Statement on the Background and 
     History of Impeachment, 67 Geo. Wash. L. Rev. 682, 688 
     (1999). The Framers' ``predominant fear'' was ``oppression at 
     the hands of Congress.'' Raoul Berger, Impeachment: The 
     Constitutional Problems 4 (1973); see also Consumer Energy 
     Council of Am. v. Fed. Energy Regulatory Comm'n, 673 F.2d 
     425, 464 (D.C. Cir. 1982) (``Perhaps the greatest fear of the 
     Framers was that in a representative democracy the 
     Legislature would be capable of using its plenary lawmaking 
     power to swallow up the other departments of the 
     Government.''); Ronald C. Kahn, Process and Rights Principles 
     in Modern Constitutional Theory: The Supreme Court and 
     Constitutional Democracy, 37 Stan. L. Rev. 253, 260 (1984) 
     (``[T]he Framers' greatest fear was the unlawful use of 
     legislative power.''). The ratification debates also 
     reflected fear of Congress. Berger, supra, at 119.
       175. 2 The Records of the Federal Convention of 1787, at 66 
     (Max Farrand ed., 1911) (Records of the Federal Convention) 
     (Charles Pinckney).
       176. Id. at 69 (Gouverneur Morris).
       177. Id. at 65.
       178. See supra notes 92-100 and accompanying text.
       179. 2 Records of the Federal Convention, supra note 175, 
     at 550 (James Madison).
       180. Alexander Hamilton's description in Federalist No. 65 
     does not support House Democrats' theory of a vague abuse-of-
     power offense. In an often-cited passage, Hamilton observed 
     that the subjects of impeachment are ``offenses which proceed 
     from the misconduct of public men, or, in other words, from 
     the abuse or violation of some public trust.'' The Federalist 
     No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter ed., 
     1961). Hamilton was merely noting fundamental characteristics 
     common to impeachable offenses--that they involve (or 
     ``proceed from'') misconduct in public office or abuse of 
     public trust. He was no more saying that ``abuse or violation 
     of some public trust'' provided, in itself, the definition of 
     a chargeable offense than he was saying that ``misconduct of 
     public men'' provided such a definition.
       181. III Hinds' Precedents 2361, at 763 (1907) (Hinds' 
     Precedents). Justice Chase was acquitted by the Senate. Id. 
     at Sec. 2363, at 770-71. He had been charged with purported 
     offenses that turned largely on claims that he had misapplied 
     the law in his rulings while sitting as a circuit justice. 
     See William H. Rehnquist, Grand Inquests 76-77, 114 (1992). 
     His acquittal has been credited with having ``a profound 
     effect on the American judiciary,'' because the Senate's 
     rejection of the charges was widely viewed as 
     ``safeguard[ing] the independence'' of federal judges. Id. at 
     114.
       182. HJC Report at 5.
       183. See, e.g., id. at 38-40.
       184. Id. at 39. House Democrats rely on several secondary 
     sources, each of which extracts general categories of 
     impeachment cases from specific prosecutions. See, e.g., 
     Berger, supra note 174, at 70 (asserting that impeachment 
     cases are ``reducible to intelligible categories'' including 
     those involving ``abuse of official power''); Staff of H.R. 
     Comm. on the Judiciary, 93d Cong., Constitutional Grounds for 
     Presidential Impeachment 7

[[Page S341]]

     (Comm. Print 1974) (arguing that ``particular allegations of 
     misconduct'' in English cases suggest several general types 
     of damage to the state, including ``abuse of official 
     power'').
       185. H.R. Comm. on the Judiciary, Impeachment of Richard M. 
     Nixon, President of the United States, H.R. Rep. No. 93-1305, 
     93d Cong. 371 (1974) (Minority Views of Messrs. Hutchinson, 
     Smith, Sandman et al.).
       186. See H.R. Comm. on the Judiciary, Impeachment of 
     William Jefferson Clinton, President of the United States, 
     H.R. Res. 611, 105th Cong. (1998); see also H.R. Rep. No. 
     105-830, 105th Cong. 143 (1998) (additional views of Rep. 
     Bill McCollum) (``President Clinton actively sought to thwart 
     the due administration of justice by repeatedly committing 
     the felony crimes of perjury, witness tampering, and 
     obstruction of justice.'').
       187. H.R. Rep. No. 93-1305, at 1-3; see also id. at 10 
     (alleging that Nixon ``violated the constitutional rights of 
     citizens'' and ``contravened the laws governing agencies of 
     the executive branch'').
       188. See supra notes 123-126 and accompanying text.
       189. See III Hinds' Precedents Sec. 2407, at 843.
       190. H.R. Rep. Com. No. 7, 40th Cong. 60 (1867) (Minority 
     Views) (emphasis added); see also Michael Les Benedict, The 
     Impeachment and Trial of Andrew Johnson 102 (1973).
       191. Cong. Globe, 40th Cong., 2d Sess., 1616-18, 1638-42 
     (1868); see also Charles L. Black & Philip Bobbitt, 
     Impeachment: A Handbook, New Edition 114 (2018); HJC Report 
     at 48 (``Rather than directly target President Johnson's 
     faithless execution of the laws, and his illegitimate motives 
     in wielding power, the House resorted to charges based on the 
     Tenure of Office Act.'').
       192. HJC Report at 33 (emphasis in original).
       193. United States v. Marengo Cty. Comm'n, 731 F.2d 1546, 
     1558 (11th Cir. 1984).
       194. See Berger, supra note 174, at 294-95.
       195. Id. at 295.
       196. Obama Administration's Abuse of Power: Hearing Before 
     the H.R. Comm. on the Judiciary, 112th Cong. 20 (2012) 
     (written statement of Professor Michael J. Gerhardt).
       197. 2 Records of the Federal Convention, supra note 175, 
     at 550.
       198. U.S. Const. art. II, Sec. 4.
       199. Berger, supra note 174, at 118 (internal quotation 
     marks omitted).
       200. U.S. Const. art. II, Sec. 4.
       201. U.S. Const. art. I, Sec. 3, cl. 6; art. II, Sec. 4.
       202. U.S. Const. art. I, Sec. 3, cl. 7 (emphasis added).
       203. U.S. Const. art. I, Sec. 3, cl. 6 (emphasis added).
       204. Id.
       205. U.S. Const. art. III, Sec. 2, cl. 3 (``The Trial of 
     all Crimes, except in Cases of Impeachment, shall be by Jury. 
     . . . ''); U.S. Const. art. II, Sec. 2, cl. 1 (``[H]e shall 
     have Power to grant Reprieves and Pardons for Offenses 
     against the United States, except in Cases of 
     Impeachment.'').
       206. The offense of bribery, of course, involves an element 
     of intent, and thus requires some evaluation of the accused's 
     motivations and state of mind. See 4 Blackstone, Commentaries 
     *139 (``BRIBERY . . . is when a judge, or other person 
     concerned in the administration of justice, takes any undue 
     reward to influence his behavior in his office.''). There is 
     a wide gulf, however, between proving a specific offense such 
     as bribery that involves wrongful conduct along with the 
     requisite intent and House Democrats' radical theory that any 
     lawful action may be treated as an impeachable offense based 
     on a characterization of subjective intent alone.
       207. H.R. Rep. No. 93-1305, at 371 (Minority Views of 
     Messrs. Hutchinson, Smith, Sandman et al.).
       208. Trial Mem. of U.S. House of Representatives at 9; HJC 
     Report at 31, 46, 70, 78.
       209. 4 Elliot, Debates in the Several State Conventions on 
     the Adoption of the Federal Constitution 126 (2d ed. 1888).
       210. Id. at 127.
       211. Id.
       212. Id.
       213. See HJC Report at 45-48.
       214. H.R. Rep. No. 93-1305, at 1 2. ``This report . . . 
     contains clear and convincing evidence that the President 
     caused action--not only by his own subordinates but by 
     agencies of the United States . . .--to cover up the 
     Watergate break-in. This concealment required perjury, 
     destruction of evidence, obstruction of justice--all of which 
     are crimes.'' Id. at 33-34.
       215. Id. at 3. While the House Judiciary Committee's report 
     described Article II generally as involving ``abuse of the 
     powers of the office of President,'' id. at 139, it is 
     significant that the actual charge the Judiciary Committee 
     specified in the recommended article of impeachment was not 
     framed in terms of that amorphous concept. To the contrary, 
     the article of impeachment itself charged unlawful actions 
     and dropped the vague terminology of ``abuse of power.''
       216. The third recommended article charged President Nixon 
     with defying congressional subpoenas ``without lawful cause 
     or excuse'' and asserted that the President had violated the 
     assignment of the ``sole power of impeachment'' to the House 
     by resisting subpoenas. Id. at 4. It also provides no 
     precedent for House Democrats' abuse-of-power theory.
       217. See, e.g., Debate on Articles of Impeachment: Hearings 
     Before the H.R. Comm. on the Judiciary, 93d Cong. 412 (1974) 
     (statement of Rep. Don Edwards) (``[A]rticle II charges 
     President Nixon with intentional violations of the 
     Constitution, chiefly amendments one, four, five, and 
     six.'').
       218. HJC Report at 45.
       219. Id. at 47-48.
       220. Id. at 48 n.244.
       221. Cong. Globe, 40th Cong., 2d Sess., 1616-18, 1638-42 
     (1868).
       222. Even the source they cite undermines House Democrats' 
     theories. Tribe and Matz explain that one of the most 
     important lessons from Johnson's impeachment is ``it really 
     does matter which acts are identified in articles of 
     impeachment'' and that impeachment proceedings are 
     ``technical and legalistic.'' Laurence Tribe & Joshua Matz, 
     To End a Presidency: The Power of Impeachment 54 (2018).
       223. Benedict, supra note 190, at 102. Even if President 
     Johnson's impeachment did support House Democrats' novel 
     theory--which it does not--it does not provide a model to be 
     emulated. As House Democrats' hand-picked expert, Professor 
     Michael Gerhardt, has explained, the Johnson impeachment is a 
     ``dubious precedent'' because it is ``widely regarded as 
     perhaps the most intensely partisan impeachment rendered by 
     the House''--at least until now. Michael J. Gerhardt, The 
     Federal Impeachment Process 179 (3d ed. 2019); see also 
     Berger, supra note 174, at 295 (``The impeachment and trial 
     of Andrew Johnson, to my mind, represent a gross abuse of the 
     impeachment process. . . .''); Jonathan Turley, Democrats 
     Repeat Failed History with Mad Dash to Impeach Donald Trump, 
     The Hill (Dec. 17, 2019), https://perma.cc/4Y3X-FCBW (``The 
     Johnson case has long been widely regarded as the very 
     prototype of an abusive impeachment. . . . Some critics have 
     actually cited Johnson as precedent to show that impeachment 
     can be done on purely political grounds. In other words, the 
     very reason the Johnson impeachment is condemned by history 
     is now being used today as a justification to dispense with 
     standards and definitions of impeachable acts.'').
       224. HJC Report at 44.
       225. Id. at 99.
       226. Id.
       227. Id. at 103.
       228. U.S. Const. art. II, Sec. 1.
       229 United States v. Curtiss-Wright Exp. Corp., 299 U.S. 
     304, 319 (1936) (citation omitted).
       230. Id.
       231. See Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 
     2076, 2086 (2015).
       232. U.S. Const. art. II, Sec. 1; cf. Joseph Story, 
     Commentaries on the Constitution Sec. 1450 (1833) (``One 
     motive, which induced a change of the choice of the president 
     from the national legislature, unquestionably was, to have 
     the sense of the people operate in the choice of the person, 
     to whom so important a trust was confided.''); Hamdi v. 
     Rumsfeld, 542 U.S. 507, 531 (2004) (plurality opinion) 
     (emphasizing that ``our Constitution recognizes that core 
     strategic matters of warmaking belong in the hands of those 
     who are best positioned and most politically accountable for 
     making them'').
       233. HJC Report at 48-53, 79-81.
       234. Id. at 131; see also id. at 31 (pretending that House 
     Democrats' have presented ``the strongest possible case for 
     impeachment and removal from office'').
       235. Trial Mem. of U.S. House of Representatives at 10-11 
     (quoting George Washington Farewell Address (1796), https://
perma.cc/6FSA-8HBN (Washington Farewell Address)); HJC Report 
     at 31 (quoting Washington Farewell Address).
       236. Washington Farewell Address, supra note 235.
       237. William R. Casto, Foreign Affairs and the Constitution 
     in the Age of the Fighting Sail, 19-34, 59-82 (2006).
       238. Washington Farewell Address, supra note 235.
       239. If anything, the concerns of the Founding generation 
     would suggest here that the U.S. should not be giving aid to 
     Ukraine to halt Russian aggression because that is a foreign 
     entanglement. The foreign policy needs of the Nation have 
     obviously changed.
       240. See HJC Report at 49-50.
       241. 2 Records of the Federal Convention, supra note 175, 
     at 68.
       242. Id. at 69-70.
       243. U.S. Const. art. I, Sec. 9, cl. 8; 2 Records of the 
     Federal Convention, supra note 175, at 389.
       244. Benjamin Franklin explained the Framers adopted a 
     narrow definition of treason because ``prosecutions for 
     treason were generally virulent; and perjury too easily made 
     use of against innocence.'' 2 Records of the Federal 
     Convention, supra note 175, at 348. Article III, Section 3 
     not only defines treason in specific terms but it establishes 
     a high standard of proof, requiring the testimony of two 
     witnesses or a confession.
       245. HJC Report at 52, 80.
       246. 2 Records of the Federal Convention, supra note 175, 
     at 65 (George Mason) (``One objection agst. Electors was the 
     danger of their being corrupted by the Candidates: & this 
     furnished a peculiar reason in favor of impeachments whilst 
     in office.''); id. at 69 (Gouverneur Morris) (``The Executive 
     ought therefore to be impeachable for . . . Corrupting his 
     electors.'').
       247. U.S. Const. art. II, Sec. 4.
       248. United States v. Nixon, 418 U.S. 683, 710-11 (1974) 
     (explaining that ``courts have traditionally shown the utmost 
     deference to Presidential responsibilities'' for foreign 
     policy and national security and emphasizing that claims of 
     privilege in this area would receive a higher degree of 
     deference than invocations of ``a President's generalized 
     interest in confidentiality''); Assertion of Executive 
     Privilege for Documents Concerning Conduct of Foreign Affairs 
     with Respect to Haiti, 20 Op. O.L.C. 6, 6 (1996) (citing 
     Nixon, 418 U.S. at 705-

[[Page S342]]

     13); see also Department of the Navy v. Egan, 484 U.S. 518, 
     529 (1988) (``The Court also has recognized the generally 
     accepted view that foreign policy was the province and 
     responsibility of the Executive.'') (internal quotation marks 
     and citation omitted).
       249. Nixon, 418 U.S. at 708.
       250. See Prosecution for Contempt of Congress of an 
     Executive Branch Official Who Has Asserted a Claim of 
     Executive Privilege, 8 Op. O.L.C. 101, 140 (1984) (``[T]he 
     Constitution does not permit Congress to make it a crime for 
     an official to assist the President in asserting a 
     constitutional privilege that is an integral part of the 
     President's responsibilities under the Constitution.'').
       251. Press Release, Transcript of Pelosi Weekly Press 
     Conference Today (Oct. 2, 2019), https://perma.cc/YPM4WCNX 
     (Rep. Adam Schiff, Chairman of the House Intelligence 
     Committee, stating that ``any action like that, that forces 
     us to litigate or have to consider litigation, will be 
     considered further evidence of obstruction of justice'').
       252. Impeachment Inquiry into President Donald J. Trump: 
     Constitutional Grounds for Presidential Impeachment Before 
     the H.R. Comm. on the Judiciary, 116th Cong. (Dec. 4, 2019) 
     (written statement of Professor Jonathan Turley, George 
     Washington Univ. Law School, at 42, https://perma.cc/QU4H-
 FZC4) (emphasis added).
       253. Memorandum from Steven A. Engel, Assistant Attorney 
     General, Office of Legal Counsel, to Pat A. Cipollone, 
     Counsel to the President, Re: House Committees' Authority to 
     Investigate for Impeachment, at 1-3 (Jan. 19, 2020) 
     (Impeachment Inquiry Authorization), infra Appendix C.
       254. See Watkins v. United States, 354 U.S. 178, 206, 215 
     (1957) (holding that congressional subpoenas were invalid 
     where they exceeded ``the mission[] delegated to'' a 
     committee by the House); United States v. Rumely, 345 U.S. 
     41, 44 (1953) (holding that the congressional committee was 
     without power to compel the production of certain information 
     because the requests exceeded the scope of the authorizing 
     resolution); Tobin v. United States, 306 F.2d 270, 276 (D.C. 
     Cir. 1962) (reversing a contempt conviction on the basis that 
     the subpoena requested documents outside the scope of the 
     Subcommittee's authority to investigate).
       255. Watkins, 354 U.S. at 200-10.
       256. U.S. Const. art. I, Sec. 2, cl. 5.
       257. Rumely, 345 U.S. at 42-44; see also Trump v. Mazars 
     USA, LLP, 940 F.3d 710, 722 (D.C. Cir. 2019); Exxon Corp. v. 
     FTC, 589 F.2d 582, 592 (D.C. Cir. 1978); Tobin, 306 F.2d at 
     275.
       258. E.g., Watkins, 354 U.S. at 207 (``[C]ommittees are 
     restricted to the missions delegated to them . . . .''); 
     Tobin, 306 F.2d at 276; Alissa M. Dolan et al., Cong. 
     Research Serv., RL30240, Congressional Oversight Manual 24 
     (2014).
       259. McGrain v. Daugherty, 273 U.S. 135, 177 (1927).
       260. Senate Select Comm. on Presidential Campaign 
     Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974).
       261. Nothing in the recent decision in In re Application of 
     Committee on the Judiciary establishes that a committee can 
     pursue an investigation pursuant to the impeachment power 
     without authorization by a vote from the House. See__F. Supp. 
     3d__, 2019 WL 5485221, at *26-28 (D.D.C. Oct. 25, 2019). Any 
     such discussion was dicta. The question before the court was 
     whether a particular Judiciary Committee inquiry was being 
     conducted ``preliminarily to'' an impeachment trial in the 
     Senate, a question that the court viewed as depending on the 
     inquiry's ``purpose'' and whether it could lead to such a 
     trial--``not the source of authority Congress acts under.'' 
     Id. at *28 n.37. In any event, the court's analysis was 
     flawed.
       First, the court, like the Committees, misread a House 
     annotation to Jefferson's Manual. See, e.g., Letter from 
     Elijah E. Cummings, Chairman, House Oversight Committee, et 
     al., to John Michael Mulvaney, Acting White House Chief of 
     Staff, at 2 (Oct. 4, 2019). The language quoted by the court 
     states that ``various events have been credited with setting 
     an impeachment in motion.'' H. Doc. 114-192, 114th Cong. 
     Sec. 603 (2017). But that does not mean that any of these 
     ``various events'' automatically confers authority on a 
     committee to begin an impeachment inquiry. It merely 
     acknowledges the historical fact that there is more than one 
     way the House may receive information that may prompt the 
     House to then authorize a committee to pursue an impeachment 
     investigation.
       Second, the court misread III Hinds' Precedents Sec. 2400 
     as showing that ``a resolution `authoriz[ing]' HJC `to 
     inquire into the official conduct of Andrew Johnson' was 
     passed after HJC `was already considering the subject.' '' 
     Id. at *27. That section discusses two House votes on two 
     separate resolutions that occurred weeks apart. The House 
     first voted to authorize the Johnson inquiry (which the court 
     missed), and it then voted to refer a second matter (the 
     resolution cited by the court), which touched upon President 
     Johnson's impeachment, ``to the Committee on the Judiciary, 
     which was already considering the subject.'' III Hinds' 
     Precedents Sec. 2400. The court also misread the Nixon 
     precedent as involving an ``investigation well before the 
     House passed a resolution authorizing an impeachment 
     inquiry.'' In re Application of the Comm. on the Judiciary, 
     2019 WL 5485221, at *27. But that pre-resolution work did not 
     involve any exercise of the House's impeachment power and was 
     instead limited to preliminary, self-organizing work 
     conducting ``research into the constitutional issue of 
     defining the grounds for impeachment'' and ``collecting and 
     sifting the evidence available in the public domain.'' Staff 
     of H.R. Comm. on the Judiciary, Constitutional Grounds for 
     Presidential Impeachment, 93d Cong. 1-3 (Comm. Print 1974). 
     The Chairman of the Committee himself acknowledged that, to 
     actually launch an inquiry, a House resolution ``is a 
     necessary step.'' 120 Cong. Rec. 2351 (Feb. 6, 1974 statement 
     of Rep. Rodino).
       Third, the court misread House Resolution 430, which was 
     adopted on June 11, 2019. The court plucked out language from 
     the resolution granting the Judiciary Committee ``any and all 
     necessary authority under Article I of the Constitution,'' as 
     if to suggest that the Judiciary Committee could, under that 
     grant, initiate an impeachment inquiry. In re Application of 
     Comm. on Judiciary, 2019 WL 5485221, at *29 (quoting H.R. 
     Res. 430, 116th Cong. (2019)). But House Resolution 430 is 
     actually much more narrow. After providing certain 
     authorizations for filing lawsuits, the resolution simply 
     gave committees authority to pursue litigation effectively by 
     providing that, ``in connection with any judicial proceeding 
     brought under the first or second resolving clauses, the 
     chair of any standing or permanent select committee 
     exercising authority thereunder has any and all necessary 
     authority under Article I of the Constitution.'' H.R Res. 430 
     (emphasis added). Simply by providing authority to pursue 
     lawsuits, House Resolution 430 did not authorize any 
     committee to initiate an impeachment investigation.
       262. Clerk, House of Representatives, Rules of the House of 
     Representatives, 116th Cong. (2019) (H.R. Rule).
       263. H.R. Rule X.1(l)(18).
       264. H.R. Rule X.1(n)(5).
       265. H.R. Rule XI.1(b)(1) (limiting the power to conduct 
     ``investigations and studies'' to those ``necessary or 
     appropriate in the exercise of its responsibilities under 
     rule X''); H.R. Rule XI.2(m)(1) (limiting the power to hold 
     hearings and issue subpoenas to ``the purpose of carrying out 
     any of [the committee's] functions and duties under this rule 
     and rule X (including any matters referred to it under clause 
     2 of rule XII)'').
       266. The mere referral of an impeachment resolution by 
     itself could not authorize a committee to begin an 
     impeachment inquiry. The ``Speaker's referral authority under 
     Rule XII is . . . limited to matters within a committee's 
     Rule X legislative jurisdiction'' and ``may not expand the 
     jurisdiction of a committee by referring a bill or resolution 
     falling outside the committee's Rule X legislative 
     authority.'' Impeachment Inquiry Authorization, infra 
     Appendix C, at 30; see H.R. Rule XII.2(a); 18 Deschler's 
     Precedents of the House of Representatives, app. at 578 
     (1994) (Deschler's Precedents). If a mere referral could 
     authorize an impeachment inquiry, then a single House member 
     could trigger the delegation of the House's ``sole Power of 
     Impeachment'' to a committee and thus, for the House's most 
     serious investigations, end-run Rule XI.1(b)(1)'s limitation 
     of committee investigations to the committees' jurisdiction 
     under Rule X.
       267. H.R. Res. 988, 93d Cong. 1, 13 (1974), reprinted in 
     H.R. Select Comm. on Comms., Committee Reform Amendments of 
     1974, H.R. Rep. No. 93-916, 93d Cong. 367, 379 (1974); see 
     also 120 Cong. Rec. 32,962 (1974).
       That language was stripped from the resolution by an 
     amendment, see 120 Cong. Rec. 32,968-72 (1974), the amended 
     resolution was adopted, id. at 34,469-70, and impeachment has 
     remained outside the scope of any standing committee's 
     jurisdiction ever since. Cf. Barenblatt v. United States, 360 
     U.S. 109, 117-18 (1959) (disapproving of ``read[ing] [a House 
     rule] in isolation from its long history'' and ignoring the 
     ``persuasive gloss of legislative history'').
       268. H.R. Res. 988, 93d Cong. (Oct. 8, 1974); Staff of the 
     Select Comm. on Comms., Committee Reform Amendments of 1974, 
     93d Cong. 117 (Comm. Print 1974).
       269. Certain committees, not relevant here, had authority 
     to issue subpoenas. Rules of the House of Representatives of 
     the United States, H.R. Doc. No. 114-192, at 584 (2017).
       270. Congressional Quarterly, Impeachment and the U.S. 
     Congress 20 (Robert A. Diamond ed., 1974).
       271. 3 Deschler's Precedents ch. 14, Sec. 15.2, at 2171 
     (statements of Rep. Peter Rodino and Rep. Hutchinson); id. at 
     2172 (Parliamentarian's Note); see also Dep't of Justice, 
     Office of Legal Counsel, Legal Aspects of Impeachment: An 
     Overview, at 42 n.21 (1974), https://perma.cc/X4HU-WVWS.
       272. H.R. Res. 581, 105th Cong. (1998) (Clinton); H.R. Res. 
     803, 93d Cong. (1974) (Nixon); Cong. Globe, 40th Cong., 2d 
     Sess. 784-85, 1087 (1868) (Johnson); Cong. Globe, 39th Cong., 
     2d Sess. 320-21 (1867) (Johnson); see also III Hinds' 
     Precedents of the House of Representatives 2408, at 845 
     (1907) (Hinds' Precedents) (Johnson); id. Sec. 2400, at 823-
     24 (Johnson).
       273. H.R. Comm. on the Judiciary, Investigatory Powers of 
     the Comm. on the Judiciary with Respect to its Impeachment 
     Inquiry, H.R. Rep. No. 105-795, 105th Cong. 24 (1998).
       274. 3 Deschler's Precedents ch. 14, Sec. 15.2, at 2171 
     (statement of Rep. Rodino) (emphasis added); see also, e.g., 
     120 Cong. Rec. 2356 (1974) (statement of Rep. Jordan).
       275. Richard L. Lyons, GOP Picks Jenner as Counsel, Wash. 
     Post (Jan. 8, 1974), at A1, A6
       276. In 1796, the Attorney General advised the House that, 
     to proceed with impeachment of a territorial judge, ``a 
     committee of the House of Representatives'' must ``be 
     appointed for [the] purpose'' of examining evidence. III 
     Hinds' Precedents Sec.  2486, at 982.

[[Page S343]]

     The House accepted and ratified this advice in its first 
     impeachment the next year and in each of the next twelve 
     impeachments of judges and subordinate executive officers. 
     III Hinds' Precedents Sec. Sec.  2297, 2300, 2321, 2323, 
     2342, 2364, 2385, 2444-2445, 2447-2448, 2469, 2504; VI 
     Cannon's Precedents of the House of Representatives 
     Sec. Sec. 498, 513, 544 (1936) (Cannon's Precedents); 3 
     Deschler's Precedents ch. 14, Sec. 18.1. In some cases before 
     1870, such as the impeachment of Judge Pickering, the House 
     relied on information presented directly to the House to 
     impeach an official before conducting an inquiry, and then 
     authorized a committee to draft specific articles of 
     impeachment and exercise investigatory powers. III Hinds' 
     Precedents Sec. 2321. Those few cases adhere to the rule that 
     a vote of the full House is necessary to authorize any 
     committee to investigate for impeachment purposes.
       277. H.R. Comm. on the Judiciary, Impeachment of Walter L. 
     Nixon, Jr., H.R. Rep. No. 101-36, 101st Cong. 12-13 (1989) 
     (Judge Nixon Jr.); H.R. Comm. on the Judiciary, Impeachment 
     of Judge Alcee L. Hastings, H.R. Rep. No. 100-810, 100th 
     Cong. 7-8, 29-31, 38-39 (1988) (Judge Hastings); H.R. Comm. 
     on the Judiciary, Impeachment of Judge Harry E. Claiborne, 
     H.R. Rep. No. 99-688, 99th Cong. 18-20 (1986) (Judge 
     Claiborne). These aberrations are still distinguishable 
     because the House adopted resolutions authorizing subpoenas 
     for depositions during the impeachment investigations of 
     Judges Nixon and Hastings, see H.R. Res. 562, 100th Cong. 
     (1988); H.R. Res. 320, 100th Cong. (1987), and the Judiciary 
     Committee apparently did not issue any subpoenas in Judge 
     Claiborne's impeachment inquiry.
       278. NLRB v. Noel Canning, 573 U.S. 513, 538 (2014); see 
     also Impeachment Inquiry Authorization, infra Appendix C, at 
     27.
       279. See supra Standards Part B.3.
       280. H.R. Rep. No. 105-830, at 265 (Minority Views).
       281. See Impeachment Inquiry Authorization, infra Appendix 
     C, at 1-3. Although the committees also referred to their 
     oversight and legislative jurisdiction in issuing these 
     subpoenas, the committees cannot ``leverage their oversight 
     jurisdiction to require the production of documents and 
     testimony that the committees avowedly intended to use for an 
     unauthorized impeachment inquiry.'' Id. at 32-33. These 
     ``assertion[s] of dual authorities'' were merely ``token 
     invocations of `oversight and legislative jurisdiction,' '' 
     without ``any apparent legislative purpose.'' Id. The 
     committees transmitted the subpoenas ``[p]ursuant to the 
     House['s] impeachment inquiry,'' admitted that documents 
     would ``be collected as part of the House's impeachment 
     inquiry,'' and confirmed that they would be ``shared among 
     the Committees, as well as with the Committee on the 
     Judiciary as appropriate''--all to be used in the impeachment 
     inquiry. E.g., Letter from Elijah E. Cummings, Chairman, H.R. 
     Comm. on Oversight & Reform, et al., to John M. Mulvaney, 
     Acting White House Chief of Staff, at 1 (Oct. 4, 2019).
       282. Press Release, Democratic Staff of the H.R. Comm. on 
     the Judiciary, Fact Sheet: GOP Attacks on IRS Commissioner 
     are Not Impeachment Proceedings (Sept. 21, 2016) (emphasis in 
     original), https://perma.cc/6W8E-7KV8.
       283. Impeachment Articles Referred on John Koskinen (Part 
     III): Hearing Before the H.R. Comm. on the Judiciary, 114th 
     Cong. 30 (2016) (Koskinen Impeachment Hearing: Part III) 
     (statement of Rep. Johnson) (emphasis added).
       284. Id. at 16 (statement of Rep. Nadler); Jerry Nadler 
     (@RepJerryNadler), Twitter (Sept. 21, 2016, 7:01 AM), https:/
     /perma.cc/A4VY-TFGM.
       285. Koskinen Impeachment Hearing: Part III, supra note 
     283, at 54 (statement of Rep. Jeffries).
       286. H.R. Res. 660, 116th Cong. (2019).
       287. See infra Appendix B.
       288. Impeachment Inquiry Authorization, infra Appendix C, 
     at 37.
       289. H.R. Res. 507, 116th Cong. (2019) (expressly 
     ``ratif[ying] and affirm[ing] all current and future 
     investigations, as well as all subpoenas previously issued or 
     to be issued in the future'') (emphasis added).
       290. HJC Report at 134, 137, 157.
       291. See supra Part I.B.1(a); infra Part II; Letter from 
     Pat A. Cipollone, Counsel to the President, to Nancy Pelosi, 
     Speaker, House of Representatives, et al., at 7 (Oct. 8, 
     2019).
       292. Oct. 8, 2019 Letter from Pat. A Cipollone, supra note 
     291, at 8.
       293. See Letter from Pat A. Cipollone, Counsel to the 
     President, to William Pittard, Counsel for Mick Mulvaney 
     (Nov. 8, 2019); Letter from Pat A. Cipollone, Counsel to the 
     President, to Bill Burck, Counsel for John Eisenberg (Nov. 3, 
     2019); Letter from Pat A. Cipollone, Counsel to the 
     President, to Charles J. Cooper, Counsel for Charles 
     Kupperman (Oct. 25, 2019).
       294. See generally Memorandum for John D. Ehrlichman, 
     Assistant to the President for Domestic Affairs, from William 
     H. Rehnquist, Assistant Attorney General, Office of Legal 
     Counsel, Re: Power of Congressional Committee to Compel 
     Appearance or Testimony of ``White House Staff,'' at 8 (Feb. 
     5, 1971) (Rehnquist Memorandum) (``The President and his 
     immediate advisers--that is, those who customarily meet with 
     the President on a regular or frequent basis--should be 
     deemed absolutely immune from testimonial compulsion by a 
     congressional committee.'').
       295. Letter from Steven A. Engel, Assistant Attorney 
     General, to Pat A. Cipollone, Counsel to the President (Nov. 
     7, 2019) (regarding Acting White House Chief of Staff 
     Mulvaney); Letter from Steven A. Engel, Assistant Attorney 
     General, to Pat A. Cipollone, Counsel to the President (Nov. 
     3, 2019) (regarding Legal Advisor to the National Security 
     Council Eisenberg); Letter from Steven A. Engel, Assistant 
     Attorney General, to Pat A. Cipollone, Counsel to the 
     President (October 25, 2019) (regarding Deputy National 
     Security Advisor Kupperman). These letters are attached, 
     infra, at Appendix D.
       296. Testimonial Immunity Before Congress of the Former 
     Counsel to the President, 43 Op. O.L.C. __, *1 (May 20, 2019) 
     (2019 OLC Immunity Opinion); see also Immunity of the 
     Assistant to the President and Director of the Office of 
     Political Strategy and Outreach from Congressional Subpoena, 
     38 Op. O.L.C. __(July 15, 2014) (2014 OLC Immunity Opinion); 
     Immunity of the Former Counsel to the President from 
     Compelled Congressional Testimony, 31 Op. O.L.C. 191, 192 
     (2007); Immunity of the Counsel to the President from 
     Compelled Congressional Testimony, 20 Op. O.L.C. 308, 308 
     (1996); Memorandum for Fred F. Fielding, Counsel to the 
     President, from Theodore B. Olson, Assistant Attorney 
     General, Office of Legal Counsel, Re: Congressional Testimony 
     by Presidential Assistants at 1 (Apr. 14, 1981); Memorandum 
     for All Heads of Offices, Divisions, Bureaus and Boards of 
     the Department of Justice, from John M. Harmon, Acting 
     Assistant Attorney General, Office of Legal Counsel, Re: 
     Executive Privilege, at 5 (May 23, 1977); Rehnquist 
     Memorandum, supra note 294.
       297. See 2014 OLC Immunity Opinion, 38 Op. O.L.C. at *3.
       298. See Assertion of Executive Privilege with Respect to 
     Clemency Decision, 23 Op. O.L.C. 1, 5 (1999) (emphasis 
     added).
       299. Id. at 5-6 (emphasis added); see also Immunity of the 
     Counsel to the President from Compelled Congressional 
     Testimony, 20 Op. O.L.C. at 308 (``It is the longstanding 
     position of the executive branch that the President and his 
     immediate advisors are absolutely immune from testimonial 
     compulsion by a Congressional committee.'' (quotations and 
     citations omitted)).
       300. 2014 OLC Immunity Opinion, 38 Op. O.L.C. at *3 
     (quotations and citation omitted); see also Assertion of 
     Executive Privilege with Respect to Clemency Decision, 23 Op. 
     O.L.C. at 5 (``[A] senior advisor to the President functions 
     as the President's alter ego . . . .'').
       301. 2019 OLC Immunity Opinion, 43 Op. O.L.C. at *5 
     (citations omitted).
       302. Id. at *4 (``Like executive privilege, the immunity 
     protects confidentiality within the Executive Branch and the 
     candid advice that the Supreme Court has acknowledged is 
     essential to presidential decision-making.'' (citing Nixon, 
     418 U.S. at 705)).
       303. Nixon, 418 U.S. at 708.
       304. Subpoena from the House Committee on Oversight and 
     Reform to John Michael Mulvaney, Acting White House Chief of 
     Staff (Oct. 4, 2019) (requesting documents concerning a May 
     23 Oval Office meeting, among other presidential 
     communications).
       305. H.R. Permanent Select Comm. on Intelligence, The 
     Trump-Ukraine Impeachment Inquiry Report, H.R. Rep. No. 116-
     335, 116th Cong. 181-82 (2019) (HPSCI Report).
       306. Nixon, 418 U.S. at 705.
       307. See, e.g., 2014 OLC Immunity Opinion, 38 Op. O.L.C. at 
     *6 (``[S]ubjecting an immediate presidential adviser to 
     Congress's subpoena power would threaten the President's 
     autonomy and his ability to receive sound and candid 
     advice.'').
       308. See Compl. at 11, Kupperman v. U.S. House of 
     Representatives, No. 19-cv-3224 (D.D.C. Oct. 25, 2019), ECF 
     No. 1.
       309. Letter from Steven A. Engel, Assistant Attorney 
     General, to Pat A. Cipollone, Counsel to the President, at 3 
     (Nov. 3, 2019) (regarding Legal Advisor to the National 
     Security Council Eisenberg); Letter from Steven A. Engel, 
     Assistant Attorney General, to Pat A. Cipollone, Counsel to 
     the President, at 2 (Oct. 25, 2019) (regarding Deputy 
     National Security Advisor Kupperman). These letters are 
     attached, infra, at Appendix D.
       310. See Chicago & S. Air Lines v. Waterman S.S. Corp., 333 
     U.S. 103, 109 (1948).
       311. 418 U.S. at 710-11; see also Harlow v. Fitzgerald, 457 
     U.S. 800, 812 (1982) (``For aides entrusted with 
     discretionary authority in such sensitive areas as national 
     security or foreign policy, absolute immunity might well be 
     justified to protect the unhesitating performance of 
     functions vital to the national interest.''); Committee on 
     Judiciary v. Miers, 558 F. Supp. 2d 53, 101 (D.D.C. 2008) 
     (noting that ``[s]ensitive matters of `discretionary 
     authority' such as `national security or foreign policy' may 
     warrant absolute immunity in certain circumstances.'').
       312. Subpoena from the House Committee on Oversight and 
     Reform to John Michael Mulvaney, Acting White House Chief of 
     Staff (Oct. 4, 2019).
       313. In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) 
     (internal quotation marks and citations omitted).
       314. Id.
       315. See Assertion of Executive Privilege Over Documents 
     Generated in Response to Congressional Investigation into 
     Operation Fast and Furious, 36 Op. O.L.C. __, at *3 (June 19, 
     2012) (``The threat of compelled disclosure of confidential 
     Executive Branch deliberative material can discourage robust 
     and candid deliberations.''); Assertion of Executive 
     Privilege Over Communications Regarding EPA's Ozone Air 
     Quality Standards and California's Greenhouse Gas Waiver 
     Request, 32 Op. O.L.C. __, *2 (June 19, 2008) (``Documents 
     generated for the purpose of assisting the President in 
     making a decision are protected'' and these protections also 
     ``encompass[] Executive Branch deliberative communications

[[Page S344]]

     that do not implicate presidential decisionmaking'').
       316. See, e.g., Letter from Eliot L. Engel, Chairman, H.R. 
     Comm. on Foreign Relations, et al., to John Michael Mulvaney, 
     Acting White House Chief of Staff, at 4 (Nov. 5, 2019) 
     (explaining that House rules ``do not permit agency counsel 
     to participate in depositions'').
       317. Exclusion of Agency Counsel from Congressional 
     Depositions in the Impeachment Context, 43 Op. O.L.C. __, *4 
     (Nov. 1, 2019).
       318. Id. at *2; see generally Attempted Exclusion of Agency 
     Counsel from Congressional Depositions of Agency Employees, 
     43 Op. O.L.C. __(May 23, 2019) (same, in the oversight 
     context).
       319. Exclusion of Agency Counsel from Congressional 
     Depositions in the Impeachment Context, 43 Op. O.L.C. at *2.
       320. Attempted Exclusion of Agency Counsel from 
     Congressional Depositions of Agency Employees, 43 Op. O.L.C. 
     at *10 (``[I]n many cases, agency employees will have only 
     limited experience with executive privilege and may not have 
     the necessary legal expertise to determine whether a question 
     implicates a protected privilege.'').
       321. See INS v. Chadha, 462 U.S. 919, 955 n.21 (1983) 
     (Congress's power to ``determin[e] specified internal 
     matters'' is limited because the Constitution ``only empowers 
     Congress to bind itself''); United States v. Ballin, 144 U.S. 
     1, 5 (1892) (Congress ``may not by its rules ignore 
     constitutional restraints''); HJC Report at 198 (Dissenting 
     Views) (``The Constitution's grant of the impeachment power 
     to the House of Representatives does not temporarily suspend 
     the rights and powers of the other branches established by 
     the Constitution.'').
       322. Authority of the Department of Health and Human 
     Services to Pay for Authority of the Department of Health and 
     Human Services to Pay for Private Counsel to Represent an 
     Employee Before Congressional Committees, 41 Op. O.L.C. __, 
     *5 n.6 (Jan. 18, 2017).
       323. Letter from Rep. Elijah E. Cummings, Chairman, H.R. 
     Comm. on Oversight & Reform, to Carl Kline, at 2 (Apr. 27, 
     2019) (``Both your personal counsel and attorneys from the 
     White House Counsel's office will be permitted to attend.''); 
     see also Kyle Cheney, Cummings Drops Contempt Threat Against 
     Former W.H. Security Chief, Politico (Apr. 27, 2019), https:/
     /perma.cc/F273-EJZW.
       324. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) 
     (citations omitted); see also, e.g., United States v. 
     Goodwin, 357 U.S. 368, 372 (1982) (``For while an individual 
     certainly may be penalized for violating the law, he just as 
     certainly may not be punished for exercising a protected 
     statutory or constitutional right.'').
       325. Harvey Berkman, Top Profs: Not Enough to Impeach, The 
     National Law J. (Oct. 5, 1998) (quoting Professor Tribe), 
     reprinted in 144 Cong. Rec. H10031 (1998).
       326. Impeachment Inquiry: William Jefferson Clinton, 
     President of the United States, Consideration of Articles of 
     Impeachment, 105th Cong. 398 (1998) (statement of Rep. 
     Jerrold Nadler).
       327. See, e.g., Letter from Rep. Elijah E. Cummings, 
     Chairman, H.R. Comm. on Oversight & Reform, et al., to John 
     Michael Mulvaney, Acting White House Chief of Staff, at 1 
     (Oct. 4, 2019).
       328. Transcript of Pelosi Weekly Press Conference, supra 
     note 251 (statement of Rep. Adam Schiff) (emphasis added).
       329. See History of Refusals by Executive Branch Officials 
     to Provide Information Demanded by Congress, Part I--
     Presidential Invocations of Executive Privilege Vis-a-Vis 
     Congress, 6 Op. O.L.C. 751, 753 (1982) (explaining that in 
     response to a request for documents relating to negotiation 
     of the Jay Treaty with Great Britain, President Washington 
     sent a letter to the House stating, ``[t]o admit, then, a 
     right in the House of Representatives to demand, and to have, 
     as a matter of course, all the papers respecting a 
     negotiation with a foreign Power, would be to establish a 
     dangerous precedent'' (citation omitted)); Jonathan L. Entin, 
     Separation of Powers, the Political Branches, and the Limits 
     of Judicial Review, 51 Ohio St. L.J. 175, 186-209 (1990).
       330. Letter from James Madison to Mr. __ (1834), in 4 
     Letters and other Writings of James Madison 349 (1884) 
     (emphasis added).
       331. Myers v. United States, 272 U.S. 52, 85 (1926) (``The 
     purpose was not to avoid friction, but, by means of the 
     inevitable friction incident to the distribution of the 
     governmental powers among three departments, to save the 
     people from autocracy.''); The Federalist No. 51, at 320-21 
     (James Madison) (Clinton Rossiter ed., 1961) (arguing that 
     ``liberty'' requires that the government's ``constituent 
     parts . . . be the means of keeping each other in their 
     proper places'').
       332. United States v. Am. Tel. & Tel. Co., 567 F.2d 121, 
     127 (D.C. Cir. 1977) (when Congress asks for information from 
     the Executive Branch, that request triggers the ``implicit 
     constitutional mandate to seek optimal accommodation . . . of 
     the needs of the conflicting branches.'').
       333. Id. at 130.
       334. Congressional Requests for Confidential Executive 
     Branch Information, 13 Op. O.L.C. 153, 162 (1989) (``If after 
     assertion of executive privilege the committee remains 
     unsatisfied with the agency's response, it may vote to hold 
     the agency head in contempt of Congress.'').
       335. As the Minority Views on the House Judiciary 
     Committee's Report in the Nixon proceedings pointed out, it 
     is important to have a body other than the committee that 
     issued a subpoena evaluate the subpoena before there is a 
     move to contempt. ``[I]f the Committee were to act as the 
     final arbiter of the legality of its own demand, the result 
     would seldom be in doubt. . . . It is for the reason just 
     stated that, when a witness before a Congressional Committee 
     refuses to give testimony or produce documents, the Committee 
     cannot itself hold the witness in contempt. . . . Rather, the 
     established procedure is for the witness to be given an 
     opportunity to appear before the full House or Senate, as the 
     case may be, and give reasons, if he can, why he should not 
     be held in contempt.'' H.R. Rep. No. 93-1305, at 484 (1974) 
     (Minority Views); see also id. at 516 (additional views of 
     Rep. William Cohen).
       336. As examples of such lawsuits, see Compl., Comm. on 
     Oversight and Gov't Reform v. Holder, No. 1:12-cv-1332 
     (D.D.C. August 13, 2012), ECF No. 1 (suing to enforce 
     subpoenas in the Fast and Furious investigation during the 
     Obama Administration); Compl., Comm. on the Judiciary v. 
     McGahn, No. 19-cv-2379 (D.D.C. Aug. 7, 2019), ECF No. 1. 
     Additionally, for Senate subpoenas, Congress has 
     affirmatively passed legislation creating subject matter 
     jurisdiction in federal court to hear such cases. See 28 
     U.S.C. Sec. 1365 (2018). The Trump Administration, like the 
     Obama Administration, has taken the position that a suit by a 
     congressional committee attempting to enforce a subpoena 
     against an Executive Branch official is not a justiciable 
     controversy in an Article III court. See Comm. on Oversight & 
     Gov't Reform v. Holder, 979 F. Supp. 2d 1, 9-10 (D.D.C. 2013) 
     (``The defendant . . . maintains that Article III of the 
     Constitution actually prohibits the Court from exercising 
     jurisdiction over what he characterizes as `an inherently 
     political dispute.' ''). The House of Representatives, 
     however, has taken the opposite view. See Pl.'s Opp'n to 
     Def.'s Mot. to Dismiss, Comm. on Oversight & Gov't Reform v. 
     Holder, No. 12-cv-1332 (D.D.C. Nov. 21, 2012), ECF No. 17. 
     Unless and until the justiciability question is resolved by 
     the Supreme Court, the House cannot simultaneously (i) insist 
     that the courts may decide whether any particular refusal to 
     comply with a congressional committee's demand for 
     information was legally proper and (ii) claim that the House 
     can treat resistance to any demand for information from 
     Congress as a ``high crime and misdemeanor'' justifying 
     impeachment without securing any judicial determination that 
     the Executive Branch's action was improper.
       337. See Am. Tel. & Tel. Co., 567 F.2d at 127 (``[E]ach 
     branch should take cognizance of an implicit constitutional 
     mandate to seek optimal accommodation through a realistic 
     evaluation of the needs of the conflicting branches in the 
     particular fact situation.'').
       338. See Transcript: Nancy Pelosi's Public and Private 
     Remarks on Trump Impeachment, NBC News (Sept. 24, 2019), 
     https://www.nbcnews.com/politics/trump-impeachment-inquiry/
transcript-nancy-pelosi-s-speech-trump-impeachment-n1058351 
     (``[R]ight now, we have to strike while the iron is hot. . . 
     . And, we want this to be done expeditiously. 
     Expeditiously.''); Ben Kamisar, Schiff Says House Will Move 
     Forward with Impeachment Inquiry After `Overwhelming' 
     Evidence from Hearings, NBC News (Nov. 24, 2019), https://
www.nbcnews.com/politics/meet-the-press/schiff-says-house-
will-move-forward-impeachment-inquiry-after-overwhelming-
 n1090221 (``[T]here are still other witnesses, other 
     documents that we'd like to obtain. But we are not willing to 
     go the months and months and months of rope-a-dope in the 
     courts, which the administration would love to do.'').
       339. The Federalist No. 49, at 314 (James Madison) (Clinton 
     Rossiter ed., 1961).
       340. Am. Tel. & Tel. Co., 567 F.2d at 127.
       341. HJC Report at 154.
       342. See, e.g., Senate Select Comm. on Presidential 
     Campaign Activities v. Nixon, 498 F.2d 725, 733 (D.C. Cir. 
     1974) (holding that a congressional committee's need for 
     subpoenaed material ``is too attenuated and too tangential to 
     its functions to permit a judicial judgment that the 
     President is required to comply with the Committee's 
     subpoena''); Gojack v. United States, 384 U.S. 702, 716 
     (1966) (reversing Petitioner's contempt of Congress 
     conviction because ``the subcommittee was without authority 
     which can be vindicated by criminal sanctions''); United 
     States v. Rumely, 345 U.S. 41, 47-48 (1953) (holding that a 
     congressional committee subpoena sought materials outside the 
     scope of the authorizing resolution); United States v. 
     McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972) (reversing a 
     congressional contempt conviction and applying Fourth 
     Amendment protections to a congressional investigation).
       343. Turley Written Statement, supra note 252, at 39.
       344. Background and History of Impeachment: Hearing Before 
     the Subcomm. on the Const. of the H.R. Comm. on Judiciary, 
     105th Cong. 236 (1998) (Clinton Judiciary Comm. Hearing on 
     Background of Impeachment) (written statement of Professor 
     Susan Low Bloch, Georgetown University Law Center); see also 
     Alan Dershowitz, Supreme Court Ruling Pulls Rug out from 
     under Article of Impeachment, The Hill (Dec. 16, 2019), 
     https://perma.cc/H5BA-TKVX (stating that ``the House 
     Judiciary Committee has arrogated to itself the power to 
     decide the validity of subpoenas, and the power to determine 
     whether claims of executive privilege must be recognized'' 
     and arguing that those authorities ``properly belong with the 
     judicial branch of our government, not the legislative 
     branch'').
       345. H.R. Rep. No. 105-830, at 85.
       346. Id. at 84 (quoting Rep. Bob Goodlatte).
       347. Id.

[[Page S345]]

  

       348. Clinton Judiciary Comm. Hearing on Background of 
     Impeachment, supra note 344, at 54 (written statement of 
     Professor Michael J. Gerhardt, The College of William and 
     Mary School of Law).
       349. See Assertion of Executive Privilege Over Documents 
     Generated in Response to Congressional Investigation into 
     Operation `Fast and Furious, 36 Op. O.L.C. at *1, *8.
       350. See, e.g., Harper Neidig, Judge Rules Against Obama on 
     `Fast and Furious', The Hill (Jan. 19, 2016), https://
perma.cc/FSA2-YQFT (``A federal judge on Tuesday ruled 
     President Obama cannot use executive privilege to keep 
     records on the `Fast and Furious' gun-tracking program from 
     Congress .  .  . House Republicans launched the suit after 
     voting to hold then-Attorney General Eric Holder in contempt 
     for refusing to turn over the records.'').
       351. Turley Written Statement, supra note 252, at 42.
       352. See Trial Mem. of the U.S. House of Representatives at 
     33-34; HJC Report at 136-37.
       353. Oct. 8, 2019 Letter from Pat A. Cipollone, supra note 
     291, at 8.
       354. History of Refusals, 6 O.L.C. Op. at 771 (``President 
     Truman issued a directive providing for the confidentiality 
     of all loyalty files and requiring that all requests for such 
     files from sources outside the Executive Branch be referred 
     to the Office of the President, for such response as the 
     President may determine .  .  . At a press conference held on 
     April 22, 1948, President Truman indicated that he would not 
     comply with the request to turn the papers over to the 
     Committee.'' (citations omitted)); id. at 769 (noting 
     President Coolidge refused to provide the Senate ``a list of 
     all companies in which the Secretary of the Treasury was 
     interested' '' and instead sent a letter ``calling the 
     Senate's investigation an `unwarranted intrusion,' born of a 
     desire other than to secure information for legitimate 
     legislative purposes'' (quoting 65 Cong. Rec. 6087 (1924))); 
     id. at 757 (noting President Jackson refused to provide to 
     the Senate a paper purportedly read by the President to his 
     Cabinet and instead asserted ``the Legislature had no 
     constitutional authority to `require of me an account of any 
     communication, either verbally or in writing, made to the 
     heads of Departments acting as a Cabinet council .  .  . 
     [nor] might I be required to detail to the Senate the free 
     and private conversations I have held with those officers on 
     any subject relating to their duties and my own.' '').
       355. As explained above, many of the subpoenas were not 
     authorized as part of any impeachment inquiry because they 
     were issued when the House had not voted to authorize any 
     such inquiry. See supra Part I.B.1(a).
       356. Nixon, 418 U.S. at 707.
       357. See, e.g., Trial Mem. of the U.S. House of 
     Representatives at 33-34; HJC Report at 136-37.
       358. House Democrats' reliance on Kilbourn v. Thompson is 
     misplaced. Kilbourn merely states that, when conducting an 
     impeachment inquiry, the House or Senate may ``compel the 
     attendance of witnesses, and their answer to proper 
     questions, in the same manner and by the use of the same 
     means that courts of justice can in like cases.' '' Trial 
     Mem. of the U.S. House of Representatives at 32 (quoting 
     Kilbourn, 103 U.S. 168, 190 (1880)). But constitutionally 
     based privileges apply in ``courts of justice,'' so Kilbourn 
     does not foreclose the assertion of privileges and immunities 
     in impeachment proceedings. Regardless, the statement quoted 
     by House Democrats is dictum and, therefore, not binding. 
     Additionally, House Democrats point to an 1846 statement by 
     President Polk to support the proposition that ``[p]revious 
     Presidents have acknowledged their obligation to comply with 
     an impeachment investigation.'' Id. at 32-33. OLC has 
     clarified that, when read in context, President Polk's 
     statement actually ``acknowledg[es] the continued 
     availability of executive privilege'' because President Polk 
     explained that ``even in the impeachment context, the 
     Executive branch would adopt all wise precautions to prevent 
     the exposure of all such matters the publication of which 
     might injuriously affect the public interest, except so far 
     as this might be necessary to accomplish the great ends of 
     public justice.' '' Impeachment Inquiry Authorization, infra 
     Appendix C, at 11 n.13 (quoting Memorandum for Elliot 
     Richardson, Attorney General, from Robert G. Dixon, Jr., 
     Assistant Attorney General, Office of Legal Counsel, Re: 
     Presidential Immunity from Coercive Congressional Demands for 
     Information at 22-23 (July 24, 1973)).
       359. The Federalist No. 51, supra note 331, at 322.
       360. Exclusion of Agency Counsel from Congressional 
     Depositions in the Impeachment Context, 43 Op. OLC at *2 
     (discussing how the ``same principles apply to a 
     congressional committee's effort to compel the testimony of 
     an executive branch official in an impeachment inquiry'' as 
     in other contexts).
       361. Black & Bobbitt, supra note 191, at 20; see also 
     Turley Written Statement,  note 252, at 40 (``Congress cannot 
     substitute its judgment as to what a President can 
     withhold.'').
       362. HJC Report at 129-31.
       363. Turley Written Statement, supra note 252, at 41.
       364. HJC Report at 155 (emphasis in original).
       365. Appellee Br. at 13, In re: Application of the Comm. on 
     the Judiciary, No. 19-5288 (D.C. Cir. Dec. 16, 2019) (``If 
     the House approves Articles of Impeachment, relevant grand-
     jury material that the Committee obtains in this litigation 
     could be used during the subsequent Senate proceedings. And 
     the Committee continues its impeachment investigation into 
     Presidential misconduct .  .  .  . Material that the 
     Committee obtains in this litigation could be used in that 
     investigation as well.'').
       366. Pl.'s Reply in Support of its Mot. for Expedited 
     Partial Summary Judgment at 3, Comm. on the Judiciary v. 
     McGahn, No. 19-cv-2379 (D.D.C. Oct. 16, 2019), ECF No. 38 
     (``The President has stated that the Executive Branch will 
     not participate in' the House's ongoing impeachment inquiry, 
     and has declared that McGahn is absolutely immune from 
     Congressional process. The parties are currently at an 
     impasse that can only be resolved by the courts.'' (emphasis 
     in original)); see also Compl. Sec. 1, Comm. on the Judiciary 
     v. McGahn, No. 19-cv-2379 (D.D.C. Aug. 7, 2019), ECF No. 1 
     (arguing that witness testimony is needed because ``[t]he 
     Judiciary Committee is now determining whether to recommend 
     articles of impeachment against the President'').
       367. See HJC Report at 146-48.
       368. See, e.g., Clinton v. Jones, 520 U.S. 681, 692 (1997) 
     (holding that a sitting president does not have immunity 
     during his term from civil litigation about events occurring 
     prior to entering office); In re Grand Jury Proceedings, 5 F. 
     Supp. 2d 21 (D.D.C. 1998) (rejecting the privilege for 
     information sought from a Deputy White House Counsel 
     pertaining to potential presidential criminal misconduct), 
     aff'd in part, rev'd in part sub nom. In re Lindsey, 158 F.3d 
     1263 (D.C. Cir. 1998).
       369. H.R. Rep. No. 105-830, at 92 (``[I]ndeed, the 
     President repeatedly argued that he should not be impeached 
     precisely because these matters are purely private in 
     nature.''); id. (quoting Rep. Bill McCollum) (``With regard 
     to executive privilege, I don't think that there is any 
     question that the President abused executive privilege here, 
     because it can only be used to protect official 
     functions.'').
       370. Id. at 84 (quoting Rep. Bob Goodlatte).
       371. H.R. Rep. No. 93-1305, at 1-4.
       372 Id. at 203-04 (quoting President Nixon as saying ``I 
     want you all to stonewall it, let them plead the Fifth 
     Amendment, cover-up or anything else, if it'll save it--save 
     the plan. That's the whole point.'').
       373 Id. at 188 (reflecting a vote of 21-17).
       374. 3 The Debates in the Several State Conventions on the 
     Adoption of the Federal Constitution, at 401 (Jonathan Elliot 
     2nd ed. 1987).
       375. H.R. Rep. No. 105-830, at 85.
       376 Id. at 84 (quoting Rep. Bob Goodlatte).
       377. Id.
       378. Id. at 92 (quoting Rep. George Gekas).
       379. Clinton Judiciary Comm. Hearing on Background of 
     Impeachment, supra note 344, at 54 (written statement of 
     Professor Michael J. Gerhardt, The College of William & Mary 
     School of Law) (emphasis added).
       380. E.g., Oct. 4, 2019 Letter from Elijah E. Cummings, 
     supra note 281; see infra Appendix B (listing subpoenas). The 
     HPSCI Majority Report also relies on several ``[d]ocument 
     [p]roduction[s]'' from AT&T and Verizon, reportedly in 
     response to subpoenas issued by Chairman Schiff beginning in 
     September before House Resolution 660 was passed. See 
     Editorial Bd., Schiff's Surveillance State, Wall St. J. (Dec. 
     4, 2019), https://perma.cc/2ZQP-JW5V; HPSCI Report at 31 
     n.49, 80 n.529.
       381. U.S. Const. art. I, Sec. 2, cl. 5.
       382. Memorandum from Steven A. Engel, Assistant Attorney 
     General, Office of Legal Counsel, to Pat A. Cipollone, 
     Counsel to the President, Re: House Committees' Authority to 
     Investigate for Impeachment, at 1 (Jan. 19, 2020) (emphasis 
     in original) (Impeachment Inquiry Authorization), infra 
     Appendix C.
       383. Impeachment is not just a political process 
     unconstrained by law. ``The subjects of [an impeachment 
     trial] are those offenses which proceed from the misconduct 
     of public men, or, in other words, from the abuse or 
     violation of some public trust''--that is, ``POLITICAL, as 
     they relate chiefly to injuries done immediately to the 
     society itself.'' The Federalist No. 65, at 396 (Alexander 
     Hamilton) (Clinton Rossiter ed., 1961). But ``Hamilton didn't 
     say the process of impeachment is entirely political. He said 
     the offense has to be political.'' Alan M. Dershowitz, 
     Hamilton Wouldn't Impeach Trump, Wall St. J. (Oct. 9, 2019), 
     https://perma.cc/97PH-QPGT (emphasis in original). 
     ``Hamilton's description in Federalist 65 should not be taken 
     to mean that impeachments have a conventional political 
     nature, unmoored from traditional criminal process.'' J. 
     Richard Broughton, Conviction, Nullification, and the Limits 
     of Impeachment As Politics, 68 Case W. Res. L. Rev. 275, 288 
     (2017). Federalist No. 65 goes to ``pains to show that the 
     Senate can act in `their judicial character as a `court for 
     the trial of impeachments,'' and ``[t]he entire essay is an 
     attempt to show that the Senate can overcome its political 
     nature as an elected body .  .  . and act as a proper court 
     for the trial of impeachments.' '' Charles L. Black, Jr. & 
     Philip Bobbitt, Impeachment: A Handbook 102 (2018) (emphasis 
     in original). Hamilton emphasized that impeachment and 
     removal of ``the accused'' must be based on partially legal 
     considerations involving ``real demonstrations of innocence 
     or guilt'' rather than purely political factors like ``the 
     comparative strength of parties.'' Id. at 102-03 (quoting The 
     Federalist No. 65). Thus, ``one should not diminish the 
     significance of impeachment's legal aspects, particularly as 
     they relate to the formalities of the criminal justice 
     process. It is a hybrid of the political and the legal, a 
     political process moderated by legal

[[Page S346]]

     formalities .  .  .  .'' Broughton, supra note 383, at 289.
       384. U.S. Const. amend. V.
       385. See, e.g., Walters v. Nat'l Ass'n of Radiation 
     Survivors, 473 U.S. 305, 320 (1985) (``[T]he processes 
     required by the Clause with respect to the termination of a 
     protected interest will vary depending upon the importance 
     attached to the interest and the particular circumstances 
     under which the deprivation may occur.''); Mathews v. 
     Eldridge, 424 U.S. 319, 334 (1976) (``Due process is flexible 
     and calls for such procedural protections as the particular 
     situation demands.'') (quoting Morrissey v. Brewer, 408 U.S. 
     471, 481 (1972)).
       386. See, e.g., Watkins v. United States, 354 U.S. 178, 188 
     (1957); Quinn v. United States, 349 U.S. 155, 161 (1955).
       387. Quinn, 349 U.S. at 161.
       388. U.S. Const. art. II, Sec. 4.
       389. U.S. Const. art. II, Sec. 1, cl. 1.
       390. U.S. Const. art. I, Sec. 3, cl. 7.
       391. See U.S. Const. art. II, Sec. 1, cl. 5.
       392. See generally Board of Regents of State Colleges v. 
     Roth, 408 U.S. 564, 571-72 (1972) (``The Court has also made 
     clear that the property interests protected by procedural due 
     process extend well beyond actual ownership of real estate, 
     chattels, or money.''); Bolling v. Sharpe, 347 U.S. 497, 499 
     (1954) (``Although the Court has not assumed to define 
     liberty' with any great precision, that term is not confined 
     to mere freedom from bodily restraint.'').
       393. Gilbert v. Homar, 520 U.S. 924, 928-29 (1997).
       394. U.S. Const. art. II, Sec. 4.
       395. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 
     789 (1995).
       396. See, e.g., Roth, 408 U.S. at 573; see also, e.g., Doe 
     v. Dep't of Justice, 753 F.2d 1092, 1106-07 (D.C. Cir. 1985); 
     McGinnis v. D.C., 65 F. Supp. 3d 203, 213 (D.D.C. 2014).
       397. See, e.g., Message of Protest from Andrew Jackson, 
     President, to the U.S. Senate (Apr. 15, 1834) (noting that 
     the Framers were ``undoubtedly aware'' that impeachment, 
     ``whatever might be its result, would in most cases be 
     accompanied by so much of dishonor and reproach, solicitude 
     and suffering, as to make the power of preferring it one of 
     the highest solemnity and importance.''); 2 Joseph Story, 
     Commentaries on the Constitution 686 (1833) (observing the 
     ``notoriety of the [impeachment] proceedings'' and ``the deep 
     extent to which they affect the reputations of the accused,'' 
     even apart from the ``ignominy of a conviction'').
       398. The Federalist No. 65, supra note 383, at 397 
     (Alexander Hamilton).
       399. Ohio Bell Tel. Co. v. Pub. Serv. Comm'n, 301 U.S. 292, 
     302 (1937).
       400. See Marshall v. Jerrico, Inc., 446 U.S. 238, 242 
     (1980) (one of the ``central concerns of procedural due 
     process'' is ``the prevention of unjustified or mistaken 
     deprivations''); Carey v. Piphus, 435 U.S. 247, 259-60 (1978) 
     (similar).
       401. See Hastings v. United States, 802 F. Supp. 490, 504 
     (D.D.C. 1992), vacated and remanded on other grounds by 
     Hastings v. United States, 988 F.2d 1280 (D.C. Cir. 1993) 
     (per curiam).
       402. Id.; U.S. Const. art. I, Sec. 3, cl. 6.
       403. Dep't of Justice, Office of Legal Counsel, Legal 
     Aspects of Impeachment: An Overview, at 45 (1974), https://
perma.cc/X4HU-WVWS.
       404. The Federalist No. 66, at 402 (Alexander Hamilton) 
     (Clinton Rossiter ed., 1961).
       405. John O. McGinnis, Impeachment: The Structural 
     Nderstanding, 67 Geo. Wash. L. Rev. 650, 663 (1999).
       406. See supra Standards Part B.2.
       407. Akhil Reed Amar, On Impeaching Presidents, 28 Hofstra 
     L. Rev. 291, 304 (1999).
       408. United States v. Louisiana, 363 U.S. 1, 35 (1960); see 
     also United States v. Curtiss-Wright Corp., 299 U.S. 304, 319 
     (1936) (``The President is the sole organ of the nation in 
     its external relations, and its sole representative with 
     foreign nations.'') (quoting 10 Annals of Cong. 613 (1800) 
     (statement of Rep. John Marshall)); Ex parte Hennen, 38 U.S. 
     (13 Pet.) 225, 235 (1839).
       409. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 
     381 (2000).
       410. U.S. Const. art. I, Sec. 2, cl. 5.
       411. U.S. Const. art. I, Sec. 5, cl. 2.
       412. See, e.g., INS v. Chadha, 462 U.S. 919, 940-41 (1983); 
     Buckley v. Valeo, 424 U.S. 1, 132 (1976), superseded on other 
     grounds by statute as stated in McConnell v. FEC, 540 U.S. 93 
     (2003).
       413. United States v. Ballin, 144 U.S. 1, 5 (1892); see 
     also Barry v. United States ex rel. Cunningham, 279 U.S. 597, 
     614 (1929); Morgan v. United States, 801 F.2d 445, 451 (D.C. 
     Cir. 1986) (Scalia, J.).
       414. Senate Select Comm. on Presidential Campaign 
     Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974).
       415. U.S. Const. art I, Sec. 5, cl. 2.
       416. See Attempted Exclusion of Agency Counsel from 
     Congressional Depositions of Agency Employees, 43 Op. O.L.C. 
     ___, *2 (2019).
       417. See supra Part I.B.2(b).
       418. 506 U.S. 224 (1993).
       419. U.S. Const. art. I, Sec. 3, cl. 6; see Nixon, 506 U.S. 
     at 226.
       420. Nixon, 506 U.S. at 228-29.
       421. Id. at 237 (emphasis added).
       422. In concurrence, Justice Souter explained that some 
     approaches by the Senate might be so extreme that they would 
     merit judicial review under the Impeachment Trial Clause. As 
     he explained: ``If the Senate were to act in a manner 
     seriously threatening the integrity of its results, 
     convicting, say, upon a coin toss, or upon a summary 
     determination that an officer of the United States was simply 
     `a bad guy,' .  .  . judicial interference might well be 
     appropriate.'' Id. at 253-54 (Souter, J., concurring in 
     judgment) (quoting Nixon, 506 U.S. at 239 (White, J., 
     concurring in judgment)).
       423. Id. at 237-38. Nixon did not address whether the Due 
     Process Clause constrained the conduct of an impeachment 
     trial in the Senate because no due process claim was raised 
     by the parties.
       424. Letter from James Madison to Mr. ___ (1834), in 4 
     Letters and Other Writings of James Madison 349, 349 
     (Philadelphia, J.B. Lippincott & Co. 1865); see also William 
     Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 21, 35 
     (2019).
       425. Charles L. Black & Philip Bobbitt, Impeachment: A 
     Handbook, New Edition 22-23 (2018).
       426. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 
     189, 219 (2012) (Zivotofsky I) (Breyer, J., dissenting); see 
     also Coleman v. Miller, 307 U.S. 433, 454 (1939).
       427. Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 
     2076, 2091 (2015) (Zivotofsky II) (internal quotation marks 
     omitted); see also McCulloch v. Maryland, 17 U.S. 316, 401 
     (1819).
       428. Noel Canning, 573 U.S. at 525 (quoting Letter to 
     Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 
     450 (G. Hunt ed. 1908)).
       429. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 
     635 (1952) (Jackson, J., concurring).
       430. Curtiss-Wright Export Corp., 299 U.S. at 329.
       431. Bahlul v. United States, 840 F.3d 757, 765 (D.C. Cir. 
     2016) (Kavanaugh, J., concurring).
       432. 2 Records of the Federal Convention of 1787, at 550 
     (M. Farrand ed. 1966); see, e.g., Richard M. Pious, 
     Impeaching the President: The Intersection of Constitutional 
     and Popular Law, 43 St. Louis L.J. 859, 872 (1999); see also, 
     e.g., Proceedings of the Senate Sitting for the Trial of 
     William W. Belknap, Late Secretary of War, on the Articles of 
     Impeachment Exhibited by the House of Representatives, 44th 
     Cong. 98 (1876) (statement of Sen. Timothy Howe); Scott S. 
     Barker, An Overview of Presidential Impeachment, 47 Colo. 
     Lawyer 30, 32 (Sept. 2018).
       433. 6 Reg. Deb. 737 (1830) (statement of Rep. James 
     Buchanan).
       434. See III Hinds' Precedents Sec. 2319, at 681 (Judge 
     Pickering); id. 2343, at 716 (Justice Chase).
       435. See 32 Annals of Cong. 1715, 1715-16 (1818); see, 
     e.g., III Hinds' Precedents Sec. 2491, at 988 (Judge 
     Thurston, 1825); id. Sec. 1736, at 97-98 (Vice President 
     Calhoun, 1826); id. Sec. Sec. 2365-2366 (Judge Peck, 1830-
     1831); id. Sec. 2491, at 989 (Judge Thurston, 1837); id. 
     Sec. 2495, at 994 & n.4 (Judge Watrous, 1852); Cong. Globe, 
     35th Cong., 1st Sess. 2167 (1858) (statement of Rep. Horace 
     Clark) (Judge Watrous, 1858); III Hinds' Precedents 
     Sec. 2496, at 999 (Judge Watrous, 1858); id. Sec. 2504, at 
     1008 (Judge Delahay, 1873).
       436. 6 Reg. Deb. 738 (1830) (statement of Rep. Spencer 
     Pettis).
       437. III Hinds' Precedents Sec. 2366, at 776.
       438. 6 Reg. Deb. 737 (1830) (statement of Rep. James 
     Buchanan).
       439. Id. at 737-38 (statement of Rep. Charles Ingersoll).
       440. Id. at 738 (emphasis added).
       441. Id. (statement of Rep. Spencer Pettis).
       442. See III Hinds' Precedents Sec. 2365, at 774.
       443. Cong. Globe, 42d Cong., 3d Sess. 2122 (1873) (emphasis 
     added); III Hinds' Precedents Sec. 2506, at 1011 (noting, in 
     Judge Durrell's impeachment in 1873, that ``[i]t has been the 
     practice of the Committee on the Judiciary to hear the 
     accused in matters of impeachment whenever thereto requested, 
     by witnesses or by counsel, or by both'').
       444. E.g., H.R. Rep. No. 111-427, 111th Cong. 11-12 (2010) 
     (Judge Porteous); 155 Cong. Rec. H7055, H7056 (2009) (Judge 
     Kent) (statement of Rep. Adam Schiff); H.R. Rep. No. 101-36, 
     101st Cong. 15 (1989) (Judge Nixon); Impeachment Inquiry: 
     Hearings Before the Subcomm. on Criminal Justice of H.R. 
     Comm. on the Jud., 100th Cong. 10-12; H.R. Rep. No. 100-810, 
     100th Cong. 11-12 (1988) (Judge Hastings); Conduct of Harry 
     E. Claiborne, U.S. Dist. Judge, D. Nev.: Hearing Before the 
     Subcomm. on Courts, Civil Liberties, & Admin. of Justice of 
     H.R. Comm. on the Jud., 99th Cong. 2-3, 6-7, 48-78; H.R. Rep. 
     No. 99-688, 99th Cong. 4-5 (1986) (Judge Claiborne); Justice 
     William O. Douglas: First Report by the Special Subcomm. on 
     H.R. Res. 920 of H.R. Comm. on the Judiciary, 91st Cong. 12 
     (Comm. Print 1970); Conduct of Albert W. Johnson & Albert L. 
     Watson, U.S. Dist. Judges, M.D. Pa.: Hearing Before the 
     Subcomm. of H.R. Comm. on the Judiciary, 79th Cong. 3 (1946); 
     Conduct of Halsted L. Ritter, U.S. Dist. Judge, S.D. Fla.: 
     Hearing Before the Subcomm. of H.R. Comm. on the Judiciary, 
     73d Cong. 2-3, 12, 39, 86, 102, 148, 233 (1933); Hearing 
     Before the H.R. Special Comm. Appointed to Inquire into the 
     Official Conduct of Judge Harold Louderback, 72d Cong. 10-11, 
     33-34, 92, 109, 131-33, 329-30 (1932); Conduct of Hon. Wright 
     Patman Against the Sec'y of the Treasury: Hearings on H.R. 
     Res. 92 Before the H.R. Comm. on the Judiciary, 72d Cong. 6, 
     13-14, 53, 62-69, 152-177, 197 (1932) (Sec'y of Treasury 
     Andrew W. Mellon); Conduct of Grover M. Moscowitz: Hearing 
     Before H.R. Special Comm., 70th Cong. 1-2, 4, 15, 18 (1929); 
     Conduct of Harry B. Anderson: Hearing Before H.R. Comm. on 
     Judiciary, 71st Cong. 2, 5-7, 48-49 (1931); Charges Against 
     Hon. Frank Cooper: Hearing on H.R. Res. 398 & 415 Before H.R. 
     Comm. on the Judiciary, 69th Cong. 1, 12 (1927); Charges of 
     Impeachment Against Frederick A. Fenning: Hearing on H.R. 
     Res. 228 Before H.R. Comm. on the Judiciary, 69th Cong. 10, 
     153, 366, 520-21, 523, 566-70, 1092-93 (1926); Conduct of 
     George W. English: Hearing Before the H. Special Comm., 69th 
     Cong. 5-7, 48-53, 81-84, 95-96, 106-08, 126-27, 149-55, 212-
     216, 239-40,

[[Page S347]]

     243-45 (1925); Hearing Before H.R. Comm. on the Judiciary, 
     68th Cong. 1, 9-10, 26, 36-37 (1925) (Judge Baker); VI 
     Cannon's Precedents Sec. 537, at 771 (Att'y Gen. Daugherty); 
     Conduct of Judge Kenesaw Mountain Landis: Hearing Before H.R. 
     Comm. on Judiciary, 66th Cong. 7 (1921); H.R. Rep. No. 66-
     544, 64th Cong. (1916), in 53 Cong. Rec. 6137 (1916) (U.S. 
     Dist. Att'y Marshall); Judge Alston G. Dayton: Hearings 
     Before H.R. Comm. on Judiciary & Special Subcomm. Thereof, 
     63d Cong. 210 (1915); Daniel Thew Wright: Hearings Before 
     Subcomm. of H.R. Comm. on the Judiciary, 63d Cong. 8-9 
     (1914); Conduct of Emory Speer: Hearings Before Subcomm. of 
     H.R. Comm. on the Judiciary, 63d Cong. 23 (1914); 48 Cong. 
     Rec. 8907 (1912) (Judge Archbald); VI Cannon's Precedents 
     Sec. 526, at 745 (Judge Hanford); Hearings Before Subcomm. of 
     H.R. Comm. on the Judiciary upon the Articles of Impeachment 
     of Lebbeus R. Wilfley, Judge of U.S. Ct. for China, 60th 
     Cong. 3-4 (1908); Impeachment of Judge Charles Swayne: 
     Evidence Before the Subcomm. of H.R. Comm. on the Judiciary, 
     58th Cong. III (1904); III Hinds' Precedents Sec. 2520, at 
     1034 (Judge Ricks); id. Sec. 2518, at 1031 (Judge Boarman); 
     id. Sec. 2516, at 1027 (Judge Blodgett); id. Sec. 2445, at 
     904 (Sec'y of War Belknap); id. Sec. 2514, at 1024 (Consul-
     Gen. Seward); H.R. Rep. No. 43-626, 43d Cong. V (1874) (Judge 
     W. Story, J.); III Hinds' Precedents Sec. 2507, at 1011 
     (Judge Durell); id. Sec. 2512, at 1021 (Judge Busteed); Cong. 
     Globe, 42d Cong., 3d Sess. 2124 (1873) (Judge Sherman); III 
     Hinds Precedents Sec. 2504, at 1008 (Judge Delahay).
       445. See, e.g., William Baude, Rethinking the Federal 
     Eminent Domain Power, 122 Yale L.J. 1738, 1811 (2013) 
     (explaining that the Founders envisioned that ``post-
     ratification practice can serve to give concrete meaning to a 
     constitutional provision even if it was vague as an original 
     matter'' and that ``this is consistent with an originalist 
     theory of constitutional construction''); Caleb Nelson, 
     Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 
     519, 521 (2003); see generally Baude, Constitutional 
     Liquidation, supra note 424.
       446. See NLRB v. Noel Canning, 573 U.S. 513, 525 (2014) 
     (``These precedents show that this Court has treated practice 
     as an important interpretive factor even when the nature or 
     longevity of that practice is subject to dispute, and even 
     when that practice began after the founding era.''); Free 
     Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 
     477, 505 (2010) (a ``handful of isolated'' examples cannot 
     overcome the otherwise settled ``past practice of 
     Congress''); see also, e.g., Dames & Moore v. Regan, 453 U.S. 
     654, 684 (1981).
       447. Charles W. Johnson et al., House Practice: A Guide to 
     the Rules, Precedents, and Procedures of the House, 115th 
     Cong., 1st Sess., ch. 27, Sec. 7, at 616 (2017), https://
perma.cc/RB2S-Q965 (House Practice) (citing, as support for 
     this ``modern practice,'' the 1876 impeachment investigation 
     of William Belknap in III Hinds' Precedents Sec. 2445, at 
     904).
       448. Impeachment Articles Referred on John Koskinen (Part 
     II): Hearing Before the H.R. Comm. on the Judiciary, 114th 
     Cong. 3 (2016) (statement of Rep. Jerrold Nadler).
       449. Hearing Pursuant to H.R. Res. 581 Before the H.R. 
     Comm. on the Judiciary: Appearance of Independent Counsel, 
     105th Cong. 6 (Nov. 19, 1998) (Clinton Independent Counsel 
     Hearing) (statement of Rep. Jerrold Nadler).
       450. Impeachment Articles Referred on John Koskinen (Part 
     III): Hearing Before the H.R. Comm. on the Judiciary, 114th 
     Cong. 30 (2016) (statement of Rep. Hank Johnson).
       451. President Johnson was apparently ``notified of what 
     was going on, but never asked to appear''--a fact that 
     Judiciary Committee members later found significant in 
     discounting President Johnson's impeachment as a precedent. 
     Cong. Globe, 42d Cong., 3d Sess., 2122-23 (1873) (statement 
     of Mr. Butler during impeachment investigation of Judge 
     Sherman).
       452. Authorization of an Inquiry into Whether Grounds Exist 
     for the Impeachment of William Jefferson Clinton, President 
     of the United States: Meeting of the H.R. Comm. on the 
     Judiciary; Presentation by Inquiry Staff Consideration of 
     Inquiry Resolution; Adoption of Inquiry Procedures, 105th 
     Cong. 220 (Comm. Print 1998) (Clinton Impeachment Inquiry 
     Procedures); see also H.R. Rep. No. 105-795, at 25-26; 3 
     Deschler's Precedents ch. 14, Sec. 6.5, at 2046 (same); H.R. 
     Comm. on the Judiciary, Impeachment of Richard M. Nixon, 
     President of the United States, H.R. Rep. No. 93-1305, 93d 
     Cong. 8-9 (1974) (same, Nixon impeachment).
       453. Clinton Impeachment Inquiry Procedures, supra note 
     452, at 220; 3 Deschler's Precedents ch. 14, Sec. 6.5, at 
     2045-47 (Nixon Impeachment Inquiry Procedures); see also H.R. 
     Rep. No. 93-1305, at 8-9 (affording the President Nixon's 
     counsel the ``opportunity to .  .  . ask such questions of 
     the witnesses as the Committee deemed appropriate'').
       454. See Impeachment Inquiry Pursuant to H.R. Res. 581: 
     Presentations by Investigative Counsel, 105th Cong. 93 (Dec. 
     10, 1998); Hearing Before the H.R. Comm. on the Judiciary: 
     Impeachment Inquiry Pursuant to H.R. Res. 581: Presentation 
     on Behalf of the President, 105th Cong. 69 (Dec. 8-9, 1998) 
     (Clinton Presentation on Behalf of the President).
       455. H.R. Res. 581 Sec. 2(b); 3 Deschler's Precedents ch. 
     14, Sec. 6.5, at 2046; H.R. Res. 803 Sec. 2(b).
       456 President Clinton's counsel gave opening and closing 
     statements, called 14 expert witnesses, and cross-examined 
     the witnesses. See generally Clinton Presentation on Behalf 
     of the President, supra note 454; Submission by Counsel for 
     President Clinton to the H.R. Comm. on the Judiciary, H.R. 
     Comm. on the Judiciary, Comm. Print, Ser. No. 16, 105th 
     Cong., 2nd Sess. (1998) (Submission by Counsel for President 
     Clinton); H.R. Comm. on the Judiciary, Impeachment of William 
     Jefferson Clinton, President of the United States, H.R. Rep. 
     No. 105-830, 105th Cong. 127 (1998); Clinton Judiciary Comm. 
     Hearing Appearance of Independent Counsel, supra note 449. 
     President Nixon's counsel attended all Committee hearings to 
     hear the initial presentation of evidence, submitted an 800-
     plus page response, gave a two-day oral argument, questioned 
     witnesses, objected to testimony, submitted a 151-page 
     closing brief, and was given all ``the time that you want'' 
     to argue. See Statement of Information Submitted on Behalf of 
     President Nixon: Hearings Pursuant to H.R. Res. 803 Before 
     the H.R. Comm. on the Judiciary, 93d Cong. (1974) (Books I-
     IV); Hearings Pursuant to H.R. Res. 803 Before the H.R. Comm. 
     on the Judiciary, 93d Cong. 1719-1866 (June 27-28, 1974); 
     Testimony of Witnesses: Hearings Pursuant to H.R. Res. 803 
     Before the H.R. Comm. on the Judiciary, 93d Cong. (1974); 
     id., Book I at 70-90, 135-42, 232-41; id., Book II at 29-55, 
     160-65, 196-98, 216-17, 257-88; id., Book III at 107-23, 134, 
     179-81, 399-45, 517-18, 669-92, 1888; 10 Weekly Comp. Pres. 
     Docs. 840 (1974).
       457. See Clinton Presentation on Behalf of the President, 
     supra note 454; Submission by Counsel for President Clinton, 
     supra note 456.
       458. H.R. Rep. No. 105-830, at 127; see generally Clinton 
     Independent Counsel Hearing, supra note 449.
       459. United States v. James Daniel Good Real Prop., 510 
     U.S. 43, 48 (1993) (emphasis added).
       460. Chambers v. Miss., 410 U.S. 284, 294 (1973); see also, 
     e.g., Greene v. McElroy, 360 U.S. 474, 496 (1959).
       461. Perry v. Leeke, 488 U.S. 272, 283 n.7 (1989) (quoting 
     5 Wigmore, Evidence Sec. 1367 (Chadbourn rev. 1974)).
       462. Id.
       463. Id. (quoting 4 J. Weinstein, Evidence Sec. 800[01] 
     (1988)).
       464. Id.
       465. Goldberg v. Kelly, 397 U.S. 254, 269 (1970).
       466. See supra Part II.B.2.
       467. See generally supra notes 443-454 and accompanying 
     text.
       468. See, e.g., Background and History of Impeachment: 
     Hearing Before the Subcomm. on the Constitution of the H.R. 
     Comm. on the Judiciary, 105th Cong. 17 (1998) (statement of 
     Rep. Jerrold Nadler) (in the context of a House impeachment 
     investigation, ``due process mean[s] .  .  . the right to be 
     informed of the law, of the charges against you, the right to 
     confront the witnesses against you, to call your own 
     witnesses, and to have the assistance of counsel''); H.R. 
     Rep. No. 111-427, 111th Cong. 11-12 (2010); H.R. Rep. No. 
     111-159, 111th Cong. 14 (2009); H.R. Rep. No. 105-830, at 
     265-66 (``[I]mpeachment not only mandates due process, but [] 
     `due process quadrupled.' '').
       469. See, e.g., T. Morrison Dep. Tr. at 8:14-15 (Oct. 31, 
     2019).
       470. 116th Congress Regulations for Use of Deposition 
     Authority Sec. 3, in 165 Cong. Rec. H1216 (2019).
       471. See, e.g., A. Vindman Dep. Tr. at 77-80, 82, 274-75 
     (Oct. 29, 2019); Morrison Dep. Tr. at 69:23-70:5.
       472. See David M. Drucker, Impeachment Spin Win: Democrats 
     Killing GOP in Testimony Leak Game, Wash. Examiner (Nov. 1, 
     2019), https://perma.cc/FC7T-FZ49 (``House Democrats are 
     crushing Republicans with the use of testimony to frame the 
     impeachment of President Trump for American voters, 
     weaponizing selective leaks from closed-door depositions to 
     portray a commander in chief that abused his power.''); see 
     also, e.g., The Editorial Bd., Schiff's Secret Bombshells, 
     Wall St. J. (Oct. 23, 2019), https://perma.cc/T964-8DMS; 
     Russell Berman & Elaine Godfrey, The Closed-Door Impeachment, 
     The Atlantic (Oct. 19, 2019), https://perma.cc/JPT8-W7KB.
       473. HJC Report at 37.
       474. See supra Part II.B.2; see supra note 443-454 and 
     accompanying text.
       475. H.R. Rep. No. 105-830, at 210-11 (Minority Views).
       476. Laurence Tribe & Joshua Matz, To End a Presidency: The 
     Power of Impeachment 78 (2018).
       477. ``[T]he invocation of grand jury interests is not 
     `some talisman that dissolves all constitutional 
     protections.' '' Butterworth v. Smith, 494 U.S. 624, 630 
     (1990) (quoting United States v. Dionisio, 410 U.S. 1, 11 
     (1973)). Grand juries do not ``enjoy blanket exemption from 
     the commands of due process.'' United States v. Briggs, 514 
     F.2d 794, 804 (5th Cir. 1975); Sara Sun Beale et al., Grand 
     Jury Law and Practice Sec. 2:4 n.1 (2d ed. 2019); see, e.g., 
     United States v. Calandra, 414 U.S. 338, 346 (1974); Peters 
     v. Kiff, 407 U.S. 493, 504 (1972) (plurality opinion of 
     Marshall, J.); United States v. Hodge, 496 F.2d 87, 88 (5th 
     Cir. 1974).
       478. Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 566 
     n.11 (1983).
       479. See, e.g., United States v. Procter & Gamble Co., 356 
     U.S. 677, 681 n.6 (1958).
       480. In re Am. Historical Ass'n, 62 F. Supp. 2d 1100, 1103 
     (S.D.N.Y. 1999); see also, e.g., Procter & Gamble Co., 356 
     U.S. at 681 n.6; Douglas Oil Co. of Cal. v. Petrol Stops Nw., 
     441 U.S. 211, 219 (1979).
       481. See supra note 472 and accompanying text.
       482. See Fed. R. Crim. P. 6(e); 18 U.S.C. Sec. Sec. 401(3), 
     641, 1503 (2018); see, e.g., United States v. Jeter, 775 F.2d 
     670, 675-82 (6th Cir. 1985); Martin v. Consultants & Adm'rs, 
     Inc., 966 F.2d 1078, 1097 (7th Cir. 1992); In re Sealed Case 
     No. 99-3091, 192 F.3d 995, 1001 (D.C. Cir. 1999) (per 
     curiam); Beale et al., supra note 477, Sec. 5:6, at 5-28.
       483. Polk Cty. v. Dodson, 454 U.S. 312, 318 (1981); see 
     supra notes 459-465 and accompanying text.
       484. H.R. Res. 660 Sec. 2(1).

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       485. H.R. Rep. No. 105-830, at 126-127; 3 Deschler's 
     Precedents ch. 14, Sec. 6.5, at 2046-47.
       486. See supra notes 452-458 and accompanying text.
       487. See 165 Cong. Rec. E1357 (2019) (Impeachment Inquiry 
     Procedures in the Committee on the Judiciary Pursuant to H.R. 
     Res. 660).
       488. Letter from Jerrold Nadler, Chairman, H.R. Comm. on 
     Judiciary, to President Donald J. Trump, at 1 (Nov. 26, 
     2019).
       489. See Press Release, House Judiciary Committee, 
     Wednesday: House Judiciary to Hold Hearing on Constitutional 
     Grounds for Presidential Impeachment (Dec. 2, 2019), https://
perma.cc/5PFE-LCS5.
       490. Letter from Charles F.C. Ruff, Counsel to the 
     President, et al., to Henry J. Hyde, Chairman, H.R. Comm. on 
     Judiciary, et al. (Oct. 21, 1998); Guy Gugliotta, House 
     Hearing Set on Impeachment History, Wash. Post (Oct. 24, 
     1998), https://perma.cc/2LDX-XDL2.
       491. Letter from Pat A. Cipollone, Counsel to the 
     President, to Jerrold Nadler, Chairman, H.R. Comm. on 
     Judiciary, at 4 (Dec. 1, 2019).
       492. Letter from Jerrold Nadler, Chairman, H.R. Comm. on 
     Judiciary, to President Donald J. Trump (Nov. 29, 2019).
       493. See id.
       494. Dec. 1, 2019 Letter from Pat A. Cipollone, supra note 
     491, at 4.
       495. Id. (``We stand ready to meet with you to discuss a 
     plan for these proceedings at your convenience.'').
       496. Nicholas Fandos, Pelosi Says House Will Draft 
     Impeachment Charges Against Trump, N.Y. Times (Dec. 5, 2019), 
     https://perma.cc/L8PG-23DL (Speaker Pelosi: ``Today, I am 
     asking our Chairman to proceed with articles of 
     impeachment.'').
       497. Letter from Doug Collins, Ranking Member, H.R. Comm. 
     on Judiciary, et al., to Jerrold Nadler, Chairman, H.R. Comm. 
     on Judiciary, at 2 (Nov. 12, 2019); Letter from Doug Collins, 
     Ranking Member, H.R. Comm. on Judiciary, to Jerrold Nadler, 
     Chairman, H.R. Comm. on Judiciary, at 1-2 (Nov. 14, 2019); 
     Letter from Doug Collins, Ranking Member, H.R. Comm. on 
     Judiciary, to Jerrold Nadler, Chairman, H.R. Comm. on 
     Judiciary, at 6 (Nov. 18, 2019); Letter from Doug Collins, 
     Ranking Member, H.R. Comm. on Judiciary, to Jerrold Nadler, 
     Chairman, H.R. Comm. on Judiciary (Dec. 2, 2019); Letter from 
     Doug Collins, Ranking Member, H.R. Comm. on Judiciary, to 
     Jerrold Nadler, Chairman, H.R. Comm. on Judiciary (Dec. 4, 
     2019); Letter from Doug Collins, Ranking Member, H.R. Comm. 
     on Judiciary, to Jerrold Nadler, Chairman, H.R. Comm. on 
     Judiciary (Dec. 5, 2019); Letter from Doug Collins, Ranking 
     Member, H.R. Comm. on Judiciary, to Jerrold Nadler, Chairman, 
     H.R. Comm. on Judiciary (Dec. 6, 2019).
       498. Letter from Jerrold Nadler, Chairman, H.R. Comm. on 
     Judiciary, to Doug Collins, Ranking Member, H.R. Comm. on 
     Judiciary (Dec. 8, 2019).
       499. See supra notes 491-495, 497-498 and accompanying 
     text.
       500. Nov. 26, 2019 Letter from Jerrold Nadler, supra note 
     488.
       501. See 165 Cong. Rec. E1357 (2019) (Impeachment Inquiry 
     Procedures in the Committee on the Judiciary Pursuant to H.R. 
     Res. 660 para. F) (``Should the President unlawfully refuse 
     to make witnesses available for testimony to, or to produce 
     documents requested by, the investigative committees . . . , 
     the chair shall have the discretion to impose appropriate 
     remedies, including by denying specific requests by the 
     President or his counsel under these procedures to call or 
     question witnesses.''), and H.R. Rep. No. 116-266, 116th 
     Cong. 9-10 (2019).
       502. Simmons v. United States, 390 U.S. 377, 394 (1968); 
     see also Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 
     2004).
       503. HJC Report at 23-24.
       504. See Rules of the House of Representatives, Rule XI, 
     cl. 2(j)(1) (``[M]inority members of the committee shall be 
     entitled, upon request to the chair by a majority of them 
     before the completion of the hearing, to call witnesses 
     selected by the minority to testify with respect to that 
     measure or matter during at least one day of hearing 
     thereon.'' (emphasis added)).
       505. E.g., Pelosi Says House Will Draft Impeachment Charges 
     Against Trump, supra note 496.
       506. Impeachment Inquiry Pursuant to H.R. Res. 581: 
     Consequences of Perjury and Related Crimes: Hearing Before 
     the H.R. Comm. on the Judiciary, 105th Cong. 18-19 (1998) 
     (Clinton Judiciary Comm. Hearing on Perjury) (statement of 
     Rep. Jerrold Nadler).
       507. Id. at 19.
       508. Clinton Judiciary Comm. Hearing on Background of 
     Impeachment, supra note 468, at 17 (statement of Rep. Jerrold 
     Nadler).
       509. Press Release, Committee on the Judiciary, U.S. House 
     of Representatives, Fact Sheet: GOP Attacks on IRS 
     Commissioner are Not Impeachment Proceedings (Sept. 21, 2016) 
     (emphasis added), https://perma.cc/6VYE-9JQV.
       510. Madeline Conway, Schiff: There Is Now `More Than 
     Circumstantial Evidence' of Trump-Russia Collusion, Politico 
     (Mar. 22, 2017), https://perma.cc/P5SL-BNM6.
       511. Rep. Schiff on MSNBC Morning Joe: Trump Must Come to 
     Congress for Any Strike Against Iran, YouTube (Sept. 17, 
     2019), https://perma.cc/J7X4-F6N2 (at 0:36-1:07).
       512. Schiff's False Claim His Committee Had Not Spoken to 
     the Whistleblower, Wash. Post (Oct. 4, 2019), https://
www.washingtonpost.com/politics/2019/10/04/schiffs-false-
claim-his-committee-had-not-spokenwhistleblower/.
       513. Glenn Kessler, About The Fact Checker (Jan. 21, 2017), 
     https://perma.cc/VCD4-N3NB.
       514. Lori Robertson, Schiff Wrong on Whistleblower Contact, 
     FactCheck.org (Oct. 6, 2019), https://perma.cc/BZ8FSWJW.
       515. See, e.g., Julie E. Barnes et al., Schiff Got Early 
     Account of Accusations as Whistle-Blower's Concerns Grew, 
     N.Y. Times (Oct. 2, 2019), https://perma.cc/7ZZ4-BLRC; Ellen 
     Nakashima, Whistleblower Sought Informal Guidance from 
     Schiff's Committee Before Filing Complaint Against Trump, 
     Wash. Post (Oct. 2, 2019), https://perma.cc/SM2B-6BJN.
       516. ``Whistleblower Disclosure'': Hearing of the H.R. 
     Permanent Select Comm. on Intelligence, 116th Cong. (Sept. 
     26, 2019) (statement of Rep. Adam Schiff); see also, e.g., 
     Daniel Dale, Fact Check: Breaking Down Adam Schiff's Account 
     of Trump's Ukraine Call, CNN (Sept. 27, 2019), https://
perma.cc/SM2B-6BJN.
       517. Rose v. Clark, 478 U.S. 570, 577-78 (1986); see also, 
     e.g., United States v. Cronic, 466 U.S. 648, 659 (1984) 
     (holding that denial of representation by counsel ``makes the 
     adversary process itself presumptively unreasonable'').
       518. Winterberger v. Gen. Teamsters Auto Truck Drivers & 
     Helpers Local Union 162, 558 F.2d 923, 925 (9th Cir. 1977) 
     (administrative law).
       519. Bank of Nova Scotia v. United States, 487 U.S. 250, 
     256 (1988); see also, e.g., Beck v. Washington, 369 U.S. 541, 
     546 (1962); United States v. Estepa, 471 F.2d 1132, 1137 (2d 
     Cir. 1972) (Friendly, J.) (reversing judgment of conviction 
     because the government's argument before the grand jury 
     relied upon hearsay).
       520. Zack Stanton, Pelosi: Unless We Impeach Trump, `Say 
     Hello to a President-King', Politico (Dec. 18, 2019), https:/
     /perma.cc/3R3M-D356.
       521. Matea Gold, The Campaign to Impeach President Trump 
     Has Begun, Wash. Post (Jan. 20, 2017), https://perma.cc/HW4U-
 LBX6.
       522. Mark S. Zaid (@MarkSZaidEsq), Twitter (Jan. 30, 2017, 
     6:54 PM), https://perma.cc/TUF2-NLP3.
       523. H.R. Res. 438, 115th Cong. (2017).
       524. Caitlin Oprysko, Freshman Rep. Tlaib: Dem Majority 
     Will `Impeach the Motherf_er', Politico (Jan. 4, 2019), 
     https://perma.cc/MAW7-WLQY.
       525. H.R. Res. 438, 115th Cong. (2017).
       526. Press Release, Dep't of Justice, Attorney General 
     William P. Barr Delivers Remarks on the Release of the Report 
     on the Investigation into Russian Interference in the 2016 
     Presidential Election (Apr. 18, 2019), https://perma.cc/K5ZJ-
 2KA2 (``[T]he evidence developed by the Special Counsel is 
     not sufficient to establish that the President committed an 
     obstruction-of-justice offense.'').
       527. H.R. Res. 705, 115th Cong. (2018).
       528. See Trump v. Hawaii, 138 S. Ct. 2392 (2018).
       529. H.R. Res. 498, 116th Cong. (2019).
       530. H.R. Res. 396, 116th Cong. (2019).
       531. In re Madison Guar. Sav. & Loan Ass'n, No. 94-1, 1998 
     WL 472444, at *1 (D.C. Cir. Special Div. Jan. 16, 1998); see 
     also H.R. Doc. No. 105-310, Communication from Kenneth W. 
     Starr, Independent Counsel, Transmitting A Referral, 105th 
     Cong., at 3 (1998). The House authorized the House Judiciary 
     Committee's review of the Independent Counsel's referral two 
     days after receiving it. H.R. Res. 525, 105th Cong. (1998).
       532. H.R. Res. 611, 105th Cong. (1998).
       533. The Senate Select Committee on Presidential Campaign 
     Activities was established by the U.S. Senate on February 7, 
     1973 to investigate 1972 presidential campaign fundraising 
     practices, the Watergate break-in, and the concealment of 
     evidence relating to the break-in. H.R. Rep. No. 93-1305, at 
     116. Prior to the conclusion of that Committee's 
     investigation, the House authorized the House Judiciary 
     Committee's impeachment inquiry in February 1974. Id. at 6.
       534. Id. at 10-11.
       535. The House voted against President Johnson's 
     impeachment in December 1867. III Hinds' Precedents 
     Sec. 2407, at 843. In February 1868, the House transferred 
     the record from the first impeachment inquiry to the 
     Committee on Reconstruction as part of President Johnson's 
     second impeachment inquiry. Id. Sec. 2408, at 845.
       536. Id. Sec. 2400, at 823.
       537. Id. Sec. 2416, at 855-56.
       538. Impeachment Inquiry into President Donald J. Trump: 
     Constitutional Grounds for Presidential Impeachment: Hearing 
     Before the H.R. Comm. on the Judiciary, 116th Cong. (Dec. 4, 
     2019) (written statement of Professor Jonathan Turley, George 
     Washington Univ. Law School, at 4 n.7, https://perma.cc/QU4H-
 FZC4); III Hinds' Precedents Sec. 2408, at 845 (referring 
     evidence from the first impeachment inquiry to committee 
     conducting second impeachment inquiry); cf. HJC Report at 47-
     48.
       539. Raoul Berger, Impeachment: The Constitutional Problems 
     271-72 (1973).
       540. Special Counsel Robert S. Mueller, III, Report on the 
     Investigation into Russian Interference in the 2016 
     Presidential Election, vol. I at 2 (Mar. 2019), https://
perma.cc/EGB4-WA76.
       541. Kailani Koenig, Schiff: `More Than Circumstantial 
     Evidence' Trump Associates Colluded With Russia, NBC News 
     (Mar. 22, 2017), https://perma.cc/P5KE-6BE4.
       542. Tim Hains, Adam Schiff: Republicans in Congress (Ryan, 
     Gowdy, Nunes, Meadows, Jordan) Are Complicit in Trump's Lies, 
     RealClearPolitics (May 27, 2018), https://perma.cc/H5JM-RZHK.
       543. See U.S. Dep't of Justice Office of the Inspector 
     General, Review of Four FISA Applications and Other Aspects 
     of the FBI's Crossfire Hurricane Investigation (Dec. 2019) 
     (OIG FISA Report); id. at vii-viii, 95-96, 172, 256 n.400; 
     Order, In re Accuracy Concerns Regarding FBI Matters 
     Submitted to the FISC, No. Misc. 19-02 (FISA Ct. Dec. 17, 
     2019).
       544. OIG FISA Report, supra note 543, at viii.

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       545. Id. at 160, 256 n.400; see also Jerry Dunleavy, FBI 
     Lawyer Under Criminal Investigation Altered Document to Say 
     Carter Page `Was Not a Source' for Another Agency, Wash. 
     Exam. (Dec. 9, 2019), https://perma.cc/3J4Z-WZCJ.
       546. OIG FISA Report, supra note 543, at xiii; Inspector 
     General Report on Origins of FBI's Russia Inquiry: Hearing 
     Before S. Comm. on the Judiciary, C-SPAN at 1:19:22, 3:49:34 
     (Dec. 11, 2019), https://www.cspan.org/video/?466593-1/
justice-department-ig-horowitz-defends-report-highlights-
fisa-problems; id. at 4:59:16 (Inspector General Horowitz: 
     ``There is such a range of conduct here that is inexplicable. 
     And the answers we got were not satisfactory that we're left 
     trying to understand how could all these errors have occurred 
     over a nine-month period or so, among three teams, hand-
     picked, one of the highest profile, if not the highest 
     profile, case in the FBI, going to the very top of the 
     organization, involving a presidential campaign.'').
       547. Press Release, Dep't of Justice, Attorney General 
     William P. Barr Delivers Remarks on the Release of the Report 
     on the Investigation into Russian Interference in the 2016 
     Presidential Election (Apr. 18, 2019), https://perma.cc/K5ZJ-
2KA2.elected.''
       548. Rebecca Shabad & Alex Moe, Impeachment Inquiry Ramps 
     Up as Judiciary Panel Adopts Procedural Guidelines, NBC News 
     (Sept. 12, 2019), https://perma.cc/6694-SWXX.
       549. Clerk, H.R., Final Vote Results for Roll Call 695 on 
     Agreeing to Article I of the Resolution (Dec. 18, 2019), 
     http://clerk house.gov/evs/2019/roll695.xml; Clerk, H.R., 
     Final Vote Results for Roll Call 696 on Agreeing to Article 
     II of the Resolution (Dec. 18, 2019), http://clerk.house.gov/
evs/2019/roll696.xml.
       550. 144 Cong. Rec. H11786 (1998) (statement of Rep. 
     Jerrold Nadler).
       551. 145 Cong. Rec. S1582 (1999) (statement of Sen. Patrick 
     Leahy) (emphasis added).
       552. Brooke Singman & Guerin Hays, Dem. Rep. Brushes Off 
     Pelosi Pushback, Says He'll Pursue Trump Impeachment, Fox 
     News (Mar. 12, 2019), https://perma.cc/2LK6-W4TR (brackets in 
     original).
       553. Nicole Gaudiano & Eliza Collins, Exclusive: Nancy 
     Pelosi Vows `Different World' for Trump, No More `Rubber 
     Stamp' in New Congress, USA Today (Jan. 3, 2019), https://
perma.cc/LF66-R7NU; see also, e.g., Brian Fung, Pelosi Tamps 
     Down Talk of Impeachment, Wash. Post (Jan. 6, 2019), https://
perma.cc/8VQ3-RYZ5 (Pelosi: ``If and when the time comes for 
     impeachment, it will have to be something that has such a 
     crescendo in a bipartisan way.'').
       554. Impeachment Inquiry into President Donald J. Trump: 
     Constitutional Grounds for Presidential Impeachment Before 
     the H.R. Comm. on the Judiciary, 116th Cong. (Dec. 4, 2019) 
     (written statement of Professor Jonathan Turley, Geo. Wash. 
     Univ. Law Sch., at 4, https://perma.cc/QU4H-FZC4).
       555. Justine Coleman, Pelosi Reaction to Democrats Clapping 
     After Impeachment Vote Goes Viral, The Hill (Dec. 19, 2019), 
     https://perma.cc/LJ5U-E8VA.
       556. The Federalist No. 65, at 396 (Alexander Hamilton) 
     (Clinton Rossiter ed., 1961).
       557. Id. at 400.
       558. Id. at 396-97.
       559. The Federalist No. 66, at 402 (Alexander Hamilton) 
     (Clinton Rossiter ed., 1961).
       560. H.R. Res. 755, 116th Cong. art. I (2019).
       561. July 25 Call Mem., infra Appendix A.
       562. See infra Part III.B.2.
       563. July 25 Call Mem., infra Appendix A, at 2; see also 
     Impeachment Inquiry: Amb. Kurt Volker and Mr. Timothy 
     Morrison Before the H.R. Permanent Select Comm. on 
     Intelligence, 116th Cong. 64 (Nov. 19, 2019) (Volker-Morrison 
     Public Hearing) (``The President was concerned that the 
     United States seemed to--to bear the exclusive brunt of 
     security assistance to Ukraine. He wanted to see the 
     Europeans step up and contribute more security 
     assistance.'').
       564. July 25 Call Mem., infra Appendix A, at 2.
       565. See, e.g., Sharyl Attkisson, Timeline of Alleged 
     Ukrainian-Democrat Meddling in 2016 Presidential Election, 
     Epoch Times (Nov. 27, 2019), https://perma.cc/9EYP-9RUE; 
     Andrew E. Kramer, Ukraine Court Rules Manafort Disclosure 
     Caused `Meddling' in U.S. Election, N.Y. Times (Dec. 12, 
     2018), https://perma.cc/87B2-XYAN; Kenneth P. Vogel & David 
     Stern, Ukrainian Efforts to Sabotage Trump Backfire, Politico 
     (Jan. 11, 2017), https://perma.cc/5K56-46YG; Roman Olearchyk, 
     Ukraine's Leaders Campaign Against `Pro-Putin' Trump, 
     Financial Times (Aug. 28, 2016), https://www.ft.com/content/
c98078d0-6ae7-11e6-a0b1-d87a9fea034f; Press Release, Senators 
     Seek Interviews on Reported Coordination Between Ukrainian 
     Officials, DNC Consultant to Aid Clinton in 2016 Elections 
     (Dec. 6, 2019), https://perma.cc/PAE6-RV78?type=image.
       566. July 25 Call Mem., infra Appendix A, at 3.
       567. See infra note 737 and accompanying text; July 25 Call 
     Mem., infra Appendix A at 3.
       568. F. Hill Dep. Tr. at 76:20-77:11 (Oct. 14, 2019); see 
     also C. Croft Dep. Tr. at 125:12-126:15 (Oct. 30, 2019). 
     Senator Johnson recalled similar concerns over ``rumors that 
     [President] Zelensky was going to appoint Andriy Bohdan, the 
     lawyer for oligarch Igor Kolomoisky, as his chief of staff.'' 
     Letter from Sen. Ron Johnson to Rep. Jim Jordan, Ranking 
     Member, H.R. Comm. on Oversight & Reform, and Rep. Devin 
     Nunes, Ranking Member, H.R. Permanent Select Comm. on 
     Intelligence, at 3 (Nov. 18, 2019). And Ambassadors Taylor 
     and Volker even discussed these concerns directly with 
     President Zelensky. See W. Taylor Dep. Tr. at 86:13-22 (Oct. 
     22, 2019); K. Volker Interview Tr. at 137:15-25 (Oct. 3, 
     2019).
       569. See July 25 Call Mem., infra Appendix A, at 4 
     (President Zelensky understood President Trump's comments to 
     be referring ``specifically to the company'').
       570. See Tim Hains, FLASHBACK, 2018: Joe Biden Brags at CFR 
     Meeting About Withholding Aid to Ukraine to Force Firing of 
     Prosecutor, RealClearPolitics (Sept. 27, 2019), https://
www.realclearpolitics.com/video/2019/09/27/flashback_2018
_joe_biden_brags_at_cfr_meeting_about_withholding_aid
_to_ukraine_to_force_firing_of_prosecutor html.
       571. See Adam Taylor, Hunter Biden's New Job at a Ukrainian 
     Gas Company Is a Problem for U.S. Soft Power, Wash. Post (May 
     14, 2014), https://perma.cc/Q4QS-4H3B.
       572. See, e.g., Kenneth P. Vogel & Iuliia Mendel, Biden 
     Faces Conflict of Interest Questions That Are Being Promoted 
     by Trump and Allies, N.Y. Times (May 1, 2019), https://
perma.cc/6A4G-2CRE (``Among those who had a stake in the 
     outcome was Hunter Biden, Mr. Biden's younger son, who at the 
     time was on the board of an energy company owned by a 
     Ukrainian oligarch who had been in the sights of the fired 
     prosecutor general.'').
       573. Michael Kranish & David L. Stern, As Vice President, 
     Biden Said Ukraine Should Increase Gas Production. Then His 
     Son Got a Job with a Ukrainian Gas Company, Wash. Post (July 
     22, 2019), https://perma.cc/L24P-367Z (``In an email 
     interview with The Post, Shokin [the fired prosecutor] said 
     he believes his ouster was because of his interest in 
     [Burisma]. . . . Had he remained in his post, Shokin said, he 
     would have questioned Hunter Biden.'').
       574. HJC Report at 121; id. at 101 (``He was given 
     extensive talking points about corruption for his April 21 
     and July 25 calls, yet ignored them both times and did not 
     mention corruption on either call.'').
       575. See A. Vindman Dep. Tr. at 109, 241 (Oct. 29, 2019) 
     (explaining that the NSC talking points discussed 
     ``deliver[ing] on the anticorruption agenda'' and 
     ``reinforc[ing] efforts to root out corruption'').
       576. July 25 Call Mem., infra Appendix A, at 4.
       577. Kyiv Post, Zelensky Talks Trump, U.S. Elections, 
     Giuliani at All-Day Press Marathon, YouTube, at 0:17 (Oct. 
     10, 2019), https://youtu.be/iG5kVNm_R5Y?t=17.
       578. Id. at 0:33, https://youtu.be/iG5kVNm_R5Y?t=33.
       579. July 25 Call Mem., infra Appendix A, at 2-3.
       580. HPSCI Report at XI.
       581. July 25 Call Mem., infra Appendix A, at 3 (emphases 
     added).
       582. Id. at 2-3.
       583. M. Yovanovitch Dep. Tr. at 314:15-18 (Oct. 11, 2019) 
     (``[Q.] The foreign aid that was has been reported as being 
     held up, it doesn't relate to Javelins, does it? [A.] No. At 
     least I'm not aware that it does.''); id. at 315:4-7 (``[Q.] 
     But it was actually aid that had been appropriated and it had 
     nothing to do with Javelins. Would you agree with that? [A.] 
     That's my understanding.''); T. Morrison Dep. Tr. at 79:25-
     80:2 (Oct. 31, 2019) (``[Q.] Okay. In your mind, are the 
     Javelins separate from the security assistance funds? [A.] 
     Yes.'').
       584. See HPSCI Report at XI.
       585. See, e.g., Remarks By President Trump And Prime 
     Minister Abe of Japan Before Bilateral Meeting, New York, NY 
     (Sept. 25, 2019), https://perma.cc/6E4V-AYC4 (``So we did 
     [China] a favor. But they're doing us a favor. But they're 
     buying a lot of agricultural product and, in particular, 
     where you are.''); Remarks by President Trump at the 2019 
     White House Business Session With Our Nation's Governors 
     (Feb. 25, 2019), https://perma.cc/WK7Z-L82N (``And I said to 
     President Xi--I said, `President, you have to do me a favor. 
     As part of our trade deal. . .' ''); Remarks by President 
     Trump at Workforce Development Roundtable (July 26, 2018), 
     https://perma.cc/AT2V-U4PQ (``I said to the Europeans, I 
     said, `Do me a favor. Would you go out to the farms in Iowa 
     and all the different places in the Midwest? Would you buy a 
     lot of soybeans, right now?' ''); Geoff Brumfiel, Trump Says 
     North Korea Will Destroy Missile Site. But Which One?, NPR 
     (June 12, 2018), https://perma.cc/LKV5-7YAG (``I said, `Do me 
     a favor. You've got this missile engine testing site. . . .' 
     I said, `Can you close it up?' ''); Transcript: Donald 
     Trump's New York Press Conference (Sept. 26, 2018), https://
perma.cc/G6Y9-XHST (``Japan just gave us some numbers that 
     are incredible. . . . I said, `You have to do me a favor. We 
     don't want these big deficits. You're going to have to buy 
     more.' '').
       586. NSC Senior Director Morrison raised concerns ``about a 
     potential leak of the [transcript],'' but he had no concern 
     about the substance of the call. Morrison Dep. Tr. at 16:4-
     10.
       587. Vindman Dep. Tr. at 155.
       588. Id. at 18-19.
       589. Impeachment Inquiry: Ms. Jennifer Williams & Lt. Col. 
     Alexander Vindman Before the H.R. Permanent Select Comm. on 
     Intelligence, 116th Cong. 130-31 (Nov. 19, 2019) (Williams-
     Vindman Public Hearing); Vindman Dep. Tr. at 155.
       590. Morrison Dep. Tr. at 60.
       591. Press Release, The White House, Statement from Lt. 
     Gen. Keith Kellogg, National Security Advisor to Vice 
     President Mike Pence (Nov. 19, 2019), https://perma.cc/7FT8-
 U3QY.

[[Page S350]]

  

       592. Press Release, President of Ukraine, Volodymyr 
     Zelensky Had a Phone Conversation with President of the 
     United States (July 25, 2019), https://perma.cc/DKP3-VKCH.
       593. Simon Shuster, `I Don't Trust Anyone at All.' 
     Ukrainian President Volodymyr Zelensky Speaks Out on Trump, 
     Putin, and a Divided Europe, Time (Dec. 2, 2019), https://
perma.cc/Z65U-FKAR.
       594. Ukraine President Downplays Trump Pressures in All-Day 
     Media Marathon, Politico (Oct. 10, 2019), https://perma.cc/
QVM-HFNK (``Responding to questions from The Associated 
     Press, Zelenskiy said he only learned after their July 25 
     phone call that the U.S. had blocked hundreds of millions of 
     dollars in military aid to Ukraine. `We didn't speak about 
     this' during the July call, Zelenskiy said. There was no 
     blackmail.' '').
       595. See President Trump Meeting with Ukrainian President, 
     C-SPAN, at 08:10 (Sept. 25, 2019), https://www.c-span.org/
video/?464711-1/president-trump-meets-ukrainian-leader-memo-
 release (``[W]e had, I think, [a] good phone call. It was 
     normal. We spoke about many things. And I--so I think, and 
     you read it, that nobody pushed--pushed me.''); Meg Wagner et 
     al., Ukraine President Insists ``No One Can Put Pressure on 
     Me'' to Investigate Bidens, CNN (Oct. 1, 2019), https://
perma.cc/AAV7-74G4 (``I don't feel pressure. . . . I have 
     lots of people who'd like to put pressure on me here and 
     abroad. I'm the president of an independent Ukraine--no one 
     can put pressure on me.'').
       596. Volker Interview Tr. at 313:2-9.
       597. Taylor Dep. Tr. at 31:6-8.
       598. Croft Dep. Tr. at 117:7-12.
       599. Matthias Williams, Ukraine Minister Denies Trump Put 
     Pressure on Zelenskiy During Call: Report, Reuters (Sept. 21, 
     2019), https://perma.cc/J8TF-8SQ3.
       600. Mairead McArdle, Ukrainian Foreign Minister Denies 
     Sondland Linked Military Aid Delay to Biden Investigation, 
     National Rev. (Nov. 14, 2019), https://perma.cc/DPF6-GB5V 
     (citing Interfax-Ukraine); see also Matthias Williams, U.S. 
     Envoy Sondland Did Not Link Biden Probe to Aid: Ukraine 
     Minister, Reuters (Nov. 14, 2019), https://perma.cc/2URG-9H5Y 
     (`` `I have never seen a direct relationship between 
     investigations and security assistance,' [Ukraine Foreign 
     Minister Vadym] Prystaiko was quoted as saying by 
     Interfax.'').
       601. Simon Shuster, Exclusive: Top Ukraine Official Andriy 
     Yermak Casts Doubt on Key Impeachment Testimony, Time (Dec. 
     10, 2019), https://perma.cc/A93U-KVKF.
       602. See Caitlin Emma & Connor O'Brien, Trump Holds up 
     Ukraine Military Aid Meant to Confront Russia, Politico (Aug. 
     28, 2019), https://perma.cc/9FFS-B9WT.
       603. Volker-Morrison Public Hearing, supra note 563, at 22; 
     see also id. at 143; Volker Interview Tr. at 125:14-17 (``To 
     my knowledge, the news about a hold on security assistance 
     did not get into Ukrainian Government circles, as indicated 
     to me by the current foreign minister, then diplomatic 
     adviser, until the end of August.'').
       604. Taylor Dep. Tr. at 119:21-24; Impeachment Inquiry: 
     Amb. William Taylor & Mr. George Kent Before the H.R. 
     Permanent Select Comm. on Intelligence, 116th Cong. 154:10-13 
     (Nov. 13, 2019) (Taylor-Kent Public Hearing) (``[Q.] 
     Ambassador Taylor, earlier you were testifying that Ukrainian 
     officials did not become aware of potential U.S. assistance 
     being withheld until August 29th. Is that accurate? [A.] 
     That's my understanding, Mr. Hurd.'').
       605. Morrison Dep. Tr. at 17:11-12 (``I have no reason to 
     believe the Ukrainians had any knowledge of the review until 
     August 28, 2019.''); see also Volker-Morrison Public Hearing, 
     supra note 563, at 68 (``[Q.] You mentioned the August 28th 
     Politico article. Was that the first time that you believe 
     the Ukrainians may have had a real sense that the aid was on 
     hold? [A.] Yes.'').
       606. Taylor-Kent Public Hearing, supra note 604, at 154:19-
     23 (``[Q.] Mr. Kent, . . . when was the first time a 
     Ukrainian official contacted you, concerned about potential 
     withholding of USAID [sic]? [A.] It was after the article in 
     Politico came out, in that first intense week of 
     September.''); G. Sondland Interview Tr. at 177:11-17 (Oct. 
     17, 2019) (testifying that ``I don't recall exactly when I 
     learned that the Ukrainians learned'' but agreeing that ``by 
     the time there was a Politico report . . . everyone would 
     have known.'').
       607. Stephanie Baker & Daryna Krasnolutska, Ukraine's 
     Fraught Summer Included a Rogue Embassy in Washington, 
     Bloomberg (Nov. 22, 2019), https://perma.cc/YUB5-E92S.
       608. Andrew E. Kramer, Trump's Hold on Military Aid 
     Blindsided Top Ukrainian Officials, N.Y. Times (Sept. 22, 
     2019), https://perma.cc/7PR9-DAAS.
       609. Ukraine's Fraught Summer Included a Rogue Embassy in 
     Washington, supra note 607 (``Had the top people in Kyiv 
     known about the holdup earlier, they said, the matter would 
     have been raised with National Security Advisor John Bolton 
     during his visit on Aug. 27.'').
       610. Taylor-Kent Public Hearing, supra note 604, at 108:4-
     19.
       611. Volker Interview Tr. at 168:10-169:23.
       612. Volker-Morrison Public Hearing, supra note 563, at 68 
     (``I received a text message from one of my Ukrainian 
     counterparts on August 29th forwarding that article, and 
     that's the first they raised it with me.''); Text Message 
     from Andriy Yermak, Adviser to President Zelensky, to Kurt 
     Volker, U.S. Special Rep. for Ukraine Negotiations, at 
     KV00000020 (Aug. 29, 2019, 3:06:14 AM), https://perma.cc/
PV4B-T6HM.
       613. Volker Interview Tr. at 124:11-125:1 (emphasis added).
       614. Impeachment Inquiry: Amb. Gordon Sondland Before the 
     H.R. Permanent Select Comm. on Intelligence, 116th Cong. 40 
     (Nov. 20, 2019) (Sondland Public Hearing).
       615. Letter from Sen. Ron Johnson, supra note 568, at 6.
       616. Volker-Morrison Public Hearing, supra note 563, at 106 
     07.
       617. Taylor-Kent Public Hearing, supra note 604, at 109:18-
     20 (testifying that his ``clear understanding'' ``came from 
     Ambassador Sondland''); id. at 110:6-8 (``[Q.] You said you 
     got this from Ambassador Sondland. [A.] That is correct.''); 
     Taylor Dep. Tr. at 297:21-298:1 (``[Q.] But if I understand 
     this correctly, you're telling us that Tim Morrison told you 
     that Ambassador Sondland told him that the President told 
     Ambassador Sondland that Zelensky would have to open an 
     investigation into Biden?'' [A.] That's correct.''); see 
     also, e.g., id. at 35:20-25, 38:13-16.
       618. Morrison Dep. Tr. at 17:13-16.
       619. Sondland Public Hearing, supra note 614, at 148-49 
     (emphasis added).
       620. Sondland Interview Tr. at 35:8-11.
       621. Declaration of Ambassador Gordon D. Sondland para. 4 
     (Nov. 4, 2019) (emphasis added).
       622. Sondland Public Hearing, supra note 614, at 150-51.
       623. HJC Report at 97 (quotations omitted).
       624. M. Yovanovitch Dep. Tr. at 314:15-18 (Oct. 11, 2019) 
     (``[Q.] . . . The foreign aid that was--has been reported as 
     being held up, it doesn't relate to Javelins, does it? [A.] 
     No. At least I'm not aware that it does.''); id. at 315:4-7 
     (``[Q.] But it was actually aid that had been appropriated 
     and it had nothing to do with Javelins. Would you agree with 
     that? [A.] That's my understanding.''); Morrison Dep. Tr. at 
     79:25-80:2 (Oct. 31, 2019) (``Q. Okay. In your mind, are the 
     Javelins separate from the security assistance funds? A. 
     Yes.'').
       625. H.R. Res. 755, 116th Cong. art. I (2019); see also 
     HPSCI Report at 24; HJC Report at 76.
       626. Yovanovitch Dep. Tr. at 140:24-141:3 (``And I actually 
     felt that in the 3 years that I was there, partly because of 
     my efforts, but also the interagency team, and President 
     Trump's decision to provide lethal weapons to Ukraine, that 
     our policy actually got stronger over the last 3 years.'').
       627. Yovanovitch Dep. Tr. at 144:14-16.
       628. Taylor Dep. Tr. at 155:14-23.
       629. G. Kent Interview Tr. at 294:10-17 (Oct. 15, 2019).
       630. Volker-Morrison Public Hearing, supra note 563, at 58; 
     see also id. at 58-59 (``[Q.] And for many years, there had 
     been an initiative in the interagency to advocate for lethal 
     defensive weaponry for Ukraine. Is that correct? [A.] That is 
     correct. [Q.] And it wasn't until President Trump and his 
     administration came in that that went through? [A.] That is 
     correct.'').
       631. Nov. 18, 2019 Letter from Sen. Ron Johnson, supra note 
     568, at 2.
       632. Volker Interview Tr. at 80:6-7.
       633. D. Hale Dep. Tr. at 85:2-3 (Nov. 6, 2019).
       634. Trump's Hold on Military Aid Blindsided Top Ukrainian 
     Officials, supra note 608.
       635. Hale Dep. Tr. at 82:2-6.
       636. Impeachment Inquiry: Dr. Fiona Hill and Mr. David 
     Holmes Before the H.R. Permanent Select Comm. on 
     Intelligence, 116th Cong. 75:17-19 (Nov. 21, 2019) (Hill-
     Holmes Public Hearing).
       637. Trial Mem. of the U.S. House of Representatives at 26.
       638. Hill Dep. Tr. at 118:19-22.
       639. Yovanovitch Dep. Tr. at 142:10-16 (``Q. Were you aware 
     of the President's deep-rooted skepticism about Ukraine's 
     business environment? A. Yes. Q. And what did you know about 
     that? A. That he--I mean, he shared that concern directly 
     with President Poroshenko in their first meeting in the Oval 
     Office.''); 143:8-10 (Q. The administration had concerns 
     about corruption in Ukraine, correct? A. We all did.'').
       640. Morrison Dep. Tr. at 16:16-17.
       641. Croft Dep. Tr. at 21:20-22:5; see also The White 
     House, President Trump Meets with President Poroshenko of 
     Ukraine (Sept. 22, 2017), https://perma.cc/A5AC-PNS2 (``The 
     President recommended that President Poroshenko continue 
     working to eliminate corruption and improve Ukraine's 
     business climate.'').
       642. Croft Dep. Tr. at 32:16-25.
       643. Hill Dep. Tr. at 34:7-13.
       644. See, e.g., Yovanovitch Dep. Tr. at 17:9-12; Taylor 
     Dep. Tr. at 87:20-25; Kent Interview Tr. at 105:15-18, 
     151:2122.
       645. Hale Dep. Tr. at 82:18-22.
       646. Office of Mgmt. & Budget, Budget of the U.S. 
     Government Fiscal Year 2018, at 13 (May 23, 2017), https://
perma.cc/GE2U-MPMU.
       647. Office of Mgmt. & Budget, Budget of the U.S. 
     Government Fiscal Year 2020, at 71 (Mar. 11, 2019), https://
perma.cc/5ER6-7A3Q.
       648. Trial Mem. of the U.S. House of Representatives at 28.
       649. Id.
       650. Volker-Morrison Public Hearing, supra note 563, at 63.
       651. Id. at 64.
       652. Email from Eric Chewning, Chief of Staff, Office of 
     the Secretary of Defense, to John Rood, Under Secretary of 
     Defense for Policy, and Elaine McCusker, Under Secretary of 
     Defense (Comptroller) (June 24, 2019), available at https://
publicintegrity.org/national-security/trump-administration-
officials-worried-ukraine-aid-halt-violated-spending-law 
     (page 11); L. Cooper Dep. Tr. at 33 (Oct. 23, 2019) 
     (summarizing follow-up questions from ``a meeting with the 
     President'').

[[Page S351]]

  

       653. See supra Part III.A.1.
       654. Nov. 18, 2019 Letter from Sen. Johnson, supra note 
     568, at 5.
       655. Taylor Dep. Tr. at 35:8-19; see also J. Williams Dep. 
     Tr. at 81:7-11 (Nov. 7, 2019) (the Vice President wanted to 
     ``hear if there was more that European countries could do to 
     support Ukraine''); Morrison Dep. Tr. at 224:19-225:6 
     (``[T]he President believed that the Europeans should be 
     contributing more in security-sector assistance.'').
       656. Cooper Dep. Tr. at 14.
       657. July 25 Call Mem., infra Appendix A, at 2.
       658. Karen DeYoung, U.S. Withdrawing $100 Million in Aid to 
     Afghanistan Amid Corruption Concerns, Wash. Post (Sept. 19, 
     2019), https://perma.cc/TK8K-4332.
       659. Rachel Frazin, Trump: South Korea Should Pay 
     `Substantially More' for Defense Costs, The Hill (Aug. 7. 
     2019), https://perma.cc/T672-JNN3.
       660. Camilo Montoya-Galvez, U.S. Cuts Millions in Aid to 
     Central America, Fulfilling Trump's Vow, CBS News (June 18, 
     2019), https://perma.cc/2K6V-337X.
       661. Ben Gittleson & Conor Finnegan, Trump Administration 
     Releases Lebanon Military Aid After It Was Held Up for 
     Months, ABC News (Dec. 2, 2019), https://perma.cc/B4YJ-Z77C.
       662. Saphora Smith and Reuters, Trump Admin Cancels $300m 
     Aid to Pakistan over Terror Record, NBC News (Sept. 2, 2018), 
     https://perma.cc/U32X-8N69.
       663. Impeachment Inquiry: Ms. Laura Cooper and Mr. David 
     Hale Before the H.R. Permanent Select Comm. on Intelligence, 
     116th Cong. 22 (Cooper-Hale Public Hearing).
       664. Hill Dep. Tr. at 225:9-12.
       665. Id. at 254:20-24, 352:14-20.
       666. Volker-Morrison Public Hearing, supra note 563, at 59-
     60.
       667. Morrison Dep. Tr. at 165:6-11.
       668. M. Sandy Dep. Tr. at 133:10-13 (Nov. 16, 2019).
       669. Morrison Dep. Tr. at 127:10-16.
       670. Hill Dep. Tr. at 76:6-8 (``There was, you know, 
     speculation in all analytical circles, both in Ukraine and 
     outside, that he might not be able to get a workable majority 
     in the Ukrainian Parliament.'').
       671. Morrison Dep. Tr. at 129:14-17.
       672. Id. at 129:4-8.
       673. Id. at 128:18-20.
       674. Id. at 128:20-24.
       675. High Anti-Corruption Court Starts Work in Ukraine 
     (Video), Ukrainian Independent Information Agency of News 
     (UNIAN) (Sept. 5, 2019), https://perma.cc/2XNC-F8YF.
       676. Morrison Dep. Tr. at 129:18-24.
       677. Letter from Sen. Ron Johnson, supra note 568, at 6.
       678. Letter from Sen. Rob Portman et al., to Mick Mulvaney, 
     Director, Office of Management & Budget, at 1 (Sept. 3, 
     2019).
       679. Letter from Eliot L. Engel, Chairman, H.R. Comm. on 
     Foreign Affairs, and Michael T. McCaul, Ranking Member, H.R. 
     Comm. on Foreign Affairs, to Mick Mulvaney, Director, Office 
     of Management & Budget, and Russell Vought, Acting Director, 
     Office of Management & Budget, at 1--2 (Sept. 5, 2019).
       680. Morrison Dep. Tr. at 209:10-210:4; see also id. at 
     210:24 211:2.
       681. Id. at 225:12-16; see also Press Release, Office of 
     the President of Ukraine, Volodymyr Zelensky Discussed 
     Military-Technical Assistance for Ukraine and Cooperation in 
     the Energy Sphere with the U.S. Vice President (Sept. 1, 
     2019), https://perma.cc/4KKX-E9QL (explaining that ``[t]he 
     U.S. Vice President raised the issue of reforms and fight 
     against corruption that will be carried out by the new 
     government'' and President Zelensky ``noted that Ukraine was 
     determined to transform and emphasized that over 70 draft 
     laws had been registered on the first day of work of the new 
     parliament, including those aimed to overcome corruption.'').
       682. Morrison Dep. Tr. at 225:8-11.
       683. Id. at 242:12-243:7.
       684. Id. at 243:2-7, 244:7-12.
       685. Id. at 243:6-7.
       686. Id. at 242:22-24.
       687. See President Trump Meeting with Ukrainian President, 
     supra note 595.
       688. Morrison Dep. Tr. at 115:10-12.
       689. Id. at 106:10-15, 107:2-6.
       690. Id. at 106:10 107:4, 107:10-16.
       691. Id. at 106:10-15.
       692. Id. at 108:20-21.
       693. Volker Interview Tr. at 127:12-14.
       694. Morrison Dep. Tr. at 266:8-10 (``We were expecting the 
     President to meet with President Zelensky on 1 September. 
     It's the middle of August; it's about 2 weeks.'').
       695. See Foreign Ministry, Presidential Office Prepares 
     Zelensky-Trump Meeting in Warsaw, National News Agency of 
     Ukraine (Aug. 22, 2019), https://perma.cc/EK2G-5RSZ.
       696. Hale Dep. Tr. at 72:24 73:1; Volker Interview Tr. at 
     130:17-23 (``This was the President's trip to Warsaw as part 
     of that World War II commemoration. That was when he 
     cancelled because of the hurricane watch.''); Isabel Togoh, 
     Hurricane Dorian: Trump Cancels Poland Trip to Focus on Storm 
     in Last-Minute Move, Forbes (Aug. 30, 2019), https://
perma.cc/TQ83-6QKD.
       697. See Ukraine President Downplays Trump Pressures in 
     All-Day Media Marathon, supra note 594.
       698. Volker Interview Tr. at 78:5-9, 78:17-25; see also 
     Kent Interview Tr. at 202:14-16 (``The time on a President's 
     schedule is always subject to competing priorities.'').
       699. Hill Dep. Tr. at 145:6-12.
       700. Sondland Public Hearing, supra note 614, at 74.
       701. Sondland Interview Tr. at 216:6-7.
       702. Id. at 216:4-7.
       703. Sondland Public Hearing, supra note 614, at 36.
       704. Volker Interview Tr. at 36:1-9; 40:11-16.
       705. Sondland Public Hearing, supra note 614, at 70.
       706. Id.
       707. H.R. Res. 755, 116th Cong. art. I.
       708. HJC Report at 4-6.
       709. See Hunter Biden `Was Paid $83,333 a Month by 
     Ukrainian Gas Company to be a ``Ceremonial Figure'', The 
     Ukrainian Week (Oct. 20, 2019), https://perma.cc/7WBU-XHCJ; 
     Tobias Hoonhout, Hunter Biden Served as `Ceremonial Figure' 
     on Burisma Board for $80,000 Per Month, National Rev. (Oct. 
     18, 2019), https://perma.cc/6RAH-J5GU; FLASHBACK, 2018: Joe 
     Biden Brags at CFR Meeting About Withholding Aid to Ukraine 
     to Force Firing of Prosecutor, supra note 570; Biden Faces 
     Conflict of Interest Questions That Are Being Promoted by 
     Trump and Allies, supra note 572.
       710. See, e.g., Taylor-Kent Public Hearing, supra note 604, 
     at 25:3-5 (Kent: ``[I]n a briefing call with the national 
     security staff of the Office of the Vice President in 
     February of 2015, I raised my concern that Hunter Biden's 
     status as a board member could create the perception of a 
     conflict of interest.'').
       711. Ukrainian Efforts to Sabotage Trump Backfire, supra 
     note 565 (``[O]fficials there [at the Ukrainian embassy] 
     became `helpful' in Chalupa's efforts, she said, explaining 
     that she traded information and leads with them. `If I asked 
     a question, they would provide guidance, or if there was 
     someone I needed to follow up with.' '').
       712. Id.
       713. Natasha Bertrand & Kyle Cheney, `I'm On A Mission To 
     Testify,': Dem Ukraine Activist Eager for Impeachment Cameo, 
     Politico (Nov. 12, 2019), https://perma.cc/7RJR-6YQQ.
       714. N. Ohr. Interview Tr., 115th Cong., 113-15 (Oct. 19, 
     2018), https://perma.cc/E3YE-QKYJ.
       715. Ukrainian Efforts to Sabotage Trump Backfire, supra 
     note 565.
       716. Id.
       717. Ukraine's Leaders Campaign Against `Pro-Putin' Trump, 
     supra note 565 (``Hillary Clinton, the Democratic nominee, is 
     backed by the pro-western government that took power after 
     Mr. Yanukovich was ousted by street protests in 2014. . . . 
     If the Republican candidate [Donald Trump] loses in November, 
     some observers suggest Kiev's actions may have played at 
     least a small role.'').
       718. Id. (internal quotation marks omitted).
       719. Hill-Holmes Public Hearing, supra note 636, at 112:2-
     9.
       720. United States v. Concord Mgmt. & Consulting LLC, 347 
     F. Supp. 3d 38, 56 n.9 (D.D.C. 2018) (ellipsis in original) 
     (quoting Bluman v. FEC, 800 F. Supp. 2d 281., 288 (D.D.C. 
     2011)).
       721. See 52 U.S.C. Sec. 30121 (2018).
       722. President Donald J. Trump, Statement on Signing an 
     Executive Order on Imposing Certain Sanctions in the Event of 
     Foreign Interference in a United States Election, 2018 Daily 
     Comp. Pres. Doc. 592 (Sept. 12, 2018), https://perma.cc/
BEQ3-T3T3.
       723. Tim Hains, Rep. Adam Schiff: Democrats Meeting 
     Ukrainians ``Different Degree Of Involvement'' Than Trump-
     Russia, Real Clear Politics (July 16, 2017), https://
perma.cc/D4HC-3ETE.
       724. Adam Goldman et al., Barr Assigns U.S. Attorney in 
     Connecticut to Review Origins of Russia Inquiry, N.Y. Times 
     (May 13, 2019), https://perma.cc/VS3E-DWT3. The Department of 
     Justice has acknowledged that Mr. Durham's investigation is 
     ``broad in scope and multifaceted'' and is ``intended to 
     illuminate open questions regarding the activities of U.S. 
     and foreign intelligence services as well as non-governmental 
     organizations and individuals.'' See Letter from Stephen 
     Boyd, Assistant Attorney General, Dep't of Justice, to 
     Jerrold Nadler, Chairman, House Judiciary Comm. (June 10, 
     2019).
       725. See Katie Benner & Adam Goldman, Justice Dept. Is Said 
     to Open Criminal Inquiry Into Its Own Russia Investigation, 
     N.Y. Times (Oct. 24, 2019), https://perma.cc/ZR3G-SWHE.
       726. Press Release, The White House, Statement from the 
     Press Secretary (May 23, 2019), https://perma.cc/S9LT-LPCM.
       727. See U.S. Dep't of Justice, Criminal Resource Manual 
     Sec. 274.
       728. See Treaty on Mutual Legal Assistance in Criminal 
     Matters, U.S.-Ukr., July 22, 1998, T.I.A.S. No. 12978.
       729. See U.S. Dep't of Justice, Criminal Resource Manual 
     Sec. 278.
       730. United States v. Curtiss-Wright Export Corp., 299 U.S. 
     304, 320 (1936).
       731. H.R. Res. 755 art. I.
       732. July 25 Call Mem., infra Appendix A, at 3.
       733. Id.
       734. Id.
       735. Id.
       736. Id.
       737. Amb. Valeriy Chaly, Ukraine's Ambassador: Trump's 
     Comments Send Wrong Message to World, The Hill (Aug. 4, 
     2016), https://perma.cc/872A-Z28Y; Ukrainian Efforts to 
     Sabotage Trump Backfire, supra note 565.
       738. Letter from Sen. Robert Menendez, et al. to Yuriy 
     Lutsenko, Prosecutor General, Office of the Prosecutor 
     General of Ukraine (May 4, 2019), https://perma.cc/9EH2-LDFG.
       739. Vindman Dep. Tr. at 320; see also Volker Interview Tr. 
     at 106:9-11 (Burisma ``had a very bad reputation as a company 
     for corruption and money laundering''); Kent Interview Tr. at 
     88:7 (``Burisma had a poor reputation.'').
       740. Oliver Bullough, The Money Machine: How a High-Profile 
     Corruption Investigation Fell Apart, The Guardian (Apr. 12, 
     2017), https://perma.cc/XTF6-DGJ3.

[[Page S352]]

  

       741. Kent Interview Tr. at 88:8-9.
       742. Press Release, Burisma Holdings, Hunter Biden Joins 
     the Team of Burisma Holdings (May 12, 2014), https://
perma.cc/U9YS-JL5G; Adam Entous, Will Hunter Biden Jeopardize 
     His Father's Campaign?, The New Yorker (July 1, 2019), 
     https://perma.cc/UJ8G-GRWT (``Hunter joined .  .  . the 
     Burisma board in April, 2014.'').
       743. Susan Crabtree, Joe Biden Emerges as Obama's Trusty 
     Sidekick, Wash. Examiner (Apr. 25, 2014), https://perma.cc/
KVQ6-V2NF.
       744. Approved Judgement of the Central Criminal Court, 
     Serious Fraud Office v. Mykola Zlochevskyi, 1, 7 (Jan. 21, 
     2015), https://www.justsecurity.org/wp-content/uploads/2019/
09/Zlochevsky-SFO-v-MZ-Final-JudgmentRevised.doc.
       745. Biden Faces Conflict of Interest Questions That Are 
     Being Promoted by Trump and Allies, supra note 572.
       746. See The Money Machine: How a High-Profile Corruption 
     Investigation Fell Apart, supra note 740 (``The White House 
     insisted the position was a private matter for Hunter Biden, 
     and unrelated to his father's job, but that is not how anyone 
     I spoke to in Ukraine interpreted it. Hunter Biden is an 
     undistinguished corporate lawyer, with no previous Ukraine 
     experience.''); Will Hunter Biden Jeopardize His Father's 
     Campaign?, supra note 742.
       747. Victoria Thompson, et al., Exclusive: `I'm Here': 
     Hunter Biden Hits Back at Trump Taunt in Exclusive ABC News 
     Interview, ABC News (Oct. 15, 2019), https://abcnews.go.com/
Politics/exclusive-hiding-plain-sight-hunter-bidendefends-
foreign/story?id=66275416.
       748. Biden Faces Conflict of Interest Questions That Are 
     Being Promoted by Trump and Allies, supra note 572; Polina 
     Ivanova et al., What Hunter Biden Did on the Board of 
     Ukrainian Energy Company Burisma, Reuters (Oct. 18, 2019), 
     https://perma.cc/7PL4-JMPY. Compare Hunter Biden Served as 
     `Ceremonial Figure' on Burisma Board for $80,000 Per Month, 
     supra note 709 (reporting Hunter Biden's monthly compensation 
     to be $83,333 monthly, or nearly $1 million per year), with 
     2019 Proxy Statement, ConocoPhillips, at 30 (Apr. 1, 2019), 
     https://perma.cc/4GP8-9ZWV (disclosing cash and stock awards 
     provided to each active director with total compensation for 
     the year ranging from $33,125 to $377,779).
       749. Vindman Dep. Tr. at 334-35 (explaining that ``it 
     doesn't look like [Hunter Biden] was'' qualified); Volker 
     Interview Tr. at 106:9-12 (speculating that Burisma hired 
     Biden because of his connection to his politically connected 
     father); see also Paul Sonne et al., The Gas Tycoon and the 
     Vice President's Son: The Story of Hunter Biden's Foray into 
     Ukraine, Wash. Post (Sept. 28, 2019), https://perma.cc/A8VJ-
 YUY4 (the Executive Director of Ukraine's Anti-Corruption 
     Action Center asserting that Burisma added ``people with 
     these fancy names'' to its board in an effort to 
     ``whitewash[]'' the firm's reputation).
       750. The Gas Tycoon and the Vice President's Son: The Story 
     of Hunter Biden's Foray into Ukraine, supra note 749.
       751. The Money Machine: How a High-Profile Corruption 
     Investigation Fell Apart, supra note 740 (``The credibility 
     of the United States was not helped by the news that .  .  . 
     Hunter had been on the board of directors of Burisma''); The 
     Editorial Board, Joe Biden Lectures Ukraine, N.Y. Times (Dec. 
     11, 2015), https://perma.cc/P9JH-YEBP (``Sadly, the 
     credibility of Mr. Biden's message may be undermined by the 
     association of his son with a Ukrainian natural-gas company, 
     Burisma Holdings, which is owned by a former government 
     official suspected of corrupt practices.''); Paul Sonne and 
     Laura Mills, Ukrainians See Conflict in Biden's 
     Anticorruption Message, Wall St. J. (Dec. 7, 2015), https://
www.wsj.com/articles/ukrainians-see-conflict-in-bidens-
anticorruption-message-1449523458 (``[A]ctivists here say 
     that [Joe Biden's anti-corruption] message is being 
     undermined as his son receives money from a former Ukrainian 
     official who is being investigated for graft.'').
       752. Hunter Biden's New Job at a Ukrainian Gas Company Is a 
     Problem for U.S. Soft Power, supra note 571.
       753. Will Hunter Biden Jeopardize His Father's Campaign?, 
     supra note 742.
       754. Kent Interview Tr. at 227:1-8 (``And when I was on a 
     call with somebody from the Vice President's staff and I 
     cannot recall who it was .  .  . I raised my concerns that I 
     had heard that Hunter Biden was on the board of a company 
     owned by somebody that the U.S. Government had spent money 
     trying to get tens of millions of dollars back and that could 
     create the perception of a conflict of interest.'').
       755. Impeachment Inquiry: Amb. Marie ``Masha'' Yovanovitch 
     Before the H.R. Permanent Select Comm. on Intelligence, 116th 
     Cong. 135-36 (Nov. 15, 2019) (Yovanovitch Public Hearing) 
     (``I think that it could raise the appearance of a conflict 
     of interest.''); Taylor-Kent Public Hearing, supra note 604, 
     at 25, 94-95 (Kent testifying that ``I raised my concern that 
     Hunter Biden's status as a board member could create the 
     perception of a conflict of interest .  .  . And my concern 
     was that there was the possibility of a perception of a 
     conflict of interest.''); Williams-Vindman Public Hearing, 
     supra note 589, at 129 (Vindman and Williams agreeing ``that 
     Hunter Biden, on the board of Burisma, has the potential for 
     the appearance of a conflict of interest''); Sondland Public 
     Hearing, supra note 614, at 171 (``Well, clearly it's an 
     appearance of a conflict.''); Hill-Holmes Public Hearing, 
     supra note 636, at 89:20-90:3 (Hill affirming that ``there 
     are perceived conflict of interest troubles when the child of 
     a government official is involved with something that that 
     government official has an official policy role in''); Taylor 
     Dep. Tr. at 90:3-5 (conceding that a reasonable person could 
     say there are perceived conflicts of interest in Hunter 
     Biden's position on Burisma's board).
       756. Letter from Lindsey O. Graham, Chairman, S. Comm. on 
     Judiciary, to Michael R. Pompeo, Secretary of State, at 1 
     (Nov. 21, 2019); see also Interfax-Ukraine, Court Seizes 
     Property of Ex-minister Zlochevsky in Ukraine 09 PGO, Kyiv 
     Post (Feb. 4, 2016), https://perma.cc/P8RA-TKR6.
       757. John Solomon, The Ukraine Scandal Timeline Democrats 
     and Their Media Allies Don't Want America to See, John 
     Solomon Reports (Nov. 20, 2019), https://perma.cc/FC8V-P2AG.
       758. Foreign Affairs Issue Launch with Former Vice 
     President Joe Biden, Council on Foreign Relations (Jan. 23, 
     2018), https://www.cfr.org/event/foreign-affairs-issue-
launch-former-vice-president-joe-biden (``[Y]ou're not 
     getting the billion .  .  . I looked at them and said: I'm 
     leaving in six hours. If the prosecutor is not fired, you're 
     not getting the money.'').
       759. Kent Interview Tr. at 94:21-24.
       760. Andrew E. Kramer, Ukraine Ousts Viktor Shokin, Top 
     Prosecutor, and Political Stability Hangs in the Balance, 
     N.Y. Times (Mar. 29, 2016), https://perma.cc/J2XH-JUWH.
       761. The Money Machine: How a High-Profile Corruption 
     Investigation Fell Apart, supra note 740.
       762. Attorney John Buretta: In the Case of Burisma and 
     Zlochevskiy I Met with Prosecutor General Yury Lutsenko, 
     Burisma (Feb. 1, 2017), https://burisma-group.com/eng/media/
attorney-john-buretta-in-the-case-of-burisma-and-zlochevskiy-
i-met-with-prosecutor-general-yury-lutsenko/.
       763. As Vice President, Biden Said Ukraine Should Increase 
     Gas Production. Then His Son Got a Job with a Ukrainian Gas 
     Company, supra note 573 (``In an email interview with The 
     Post, Shokin [the fired prosecutor] said he believes his 
     ouster was because of his interest in [Burisma]. .  .  . Had 
     he remained in his post, Shokin said, he would have 
     questioned Hunter Biden.'').
       764. July 25 Call Mem., infra Appendix A, at 4.
       765. Id. (emphasis added).
       766. Id.
       767. See, e.g., Louis Nelson, Sen. Boxer Calls for Probe 
     Into Trump Model Management, Politico (Sept. 7, 2016), 
     https://perma.cc/8827-CT24; Josh Rogin, Democrats Ask the FBI 
     to Investigate Trump Advisers' Russia Ties, Wash. Post (Aug. 
     30, 2016), https://perma.cc/7HAE-Y2NN.
       768. HPSCI Report at 29-30, 38.
       769. See Letter from Devin Nunes, Ranking Member, H.R. 
     Permanent Select Comm. on Intelligence, to Adam Schiff, 
     Chairman, House Permanent Select Comm. on Intelligence (Nov. 
     9, 2019); Letter from Doug Collins, Ranking Member, H.R. 
     Comm. on Judiciary, to Jerrold Nadler, Chairman, H.R. Comm. 
     on Judiciary (Dec. 6, 2019).
       770. See, e.g., Madeline Conway, Schiff: There is Now `More 
     Than Circumstantial Evidence' of Trump-Russia Collusion, 
     Politico (Mar. 22, 2017), https://perma.cc/U9R4-MQVS.
       771. `` `Duplicity' is the joining of two or more distinct 
     and separate offenses in a single count''; `` 
     `[m]ultiplicity' is charging a single offense in several 
     counts.'' 1A Charles Alan Wright et al., Federal Practice and 
     Procedure Sec. 142 (4th ed. 2019); see, e.g., United States 
     v. Root, 585 F.3d 145, 150 (3d Cir. 2009); United States v. 
     Chrane, 529 F.2d 1236, 1237 n.3 (5th Cir. 1976).
       772. U.S. Const. art. I, Sec. 3, cl. 6.
       773. President Clinton was charged in one article of 
     providing perjurious, false and misleading testimony on any 
     ``one or more'' of four topics and in another article of 
     obstruction through ``one or more'' of seven discrete 
     ``acts'' that involved different behavior in different months 
     with different persons. H.R. Res. 611, 105th Cong. (Dec. 19, 
     1998); see Proceedings of the U.S. Senate in the Impeachment 
     Trial of President William Jefferson Clinton, 106th Cong., 
     vol. I at 472-75 (1999) (Clinton Senate Trial) (Trial Mem. of 
     President Clinton).
       774. Id., vol. IV at 2745 (statement of Sen. Carl Levin).
       775. Id.
       776. Id. at 2655 (statement of Sen. Charles Robb).
       777. Id.
       778. Id., vol. II at 1875-76 (statement of Sen. Chris 
     Dodd).
       779. Proceedings in the Trial of Andrew Johnson, President 
     of the United States, Before the U.S. Senate, on Articles of 
     Impeachment, 40th Cong. 6 (1868).
       780. Id. at 1073-75 (statement of Sen. John Henderson).
       781. Id. at 912 (statement of Sen. Garrett Davis).
       782. Proceedings of the U.S. Senate in the Impeachment 
     Trial of Walter L. Nixon, Jr., a Judge of the U.S. District 
     Court for the Southern District of Mississippi, 101st Cong., 
     1st Sess. 464 (1989) (Judge Nixon Senate Trial) (statement of 
     Sen. Frank Murkowski); H.R. Rep. No. 101-36, 101st Cong. 656 
     (1989).
       783. Judge Nixon Senate Trial, supra note 782, at 449 
     (statement of Sen. Herbert Kohl). The Senate similarly 
     refused to convict Judge Louderback on an omnibus article. In 
     that case, Senator Josiah Bailey asserted that the article 
     ``ought not to have been considered'' at all. Proceedings of 
     the U.S. Senate in the Trial of Impeachment of Harold 
     Louderback, U.S. District Judge for the Northern District of

[[Page S353]]

     California, 73d Cong., 839-40 (1933) (statement of Sen. 
     Josiah Bailey).
       Although the Senate has convicted a few lower court judges 
     on duplicitous articles, those convictions provide no 
     precedent to follow here. First, no duplicity objection 
     appears to have been timely raised in those cases before the 
     votes on conviction, and thus the Senate never squarely faced 
     and decided the issue. See, e.g., 80 Cong. Rec. 5606 (1936) 
     (parliamentary inquiry based on duplicity raised only by a 
     Senator after Judge Ritter was convicted).
       Second, far from being examples to follow, these judges' 
     convictions only illustrate the constitutional danger of 
     umbrella charges, which allow the form of the articles chosen 
     by the House, rather than actual guilt or innocence, to 
     determine conviction. Judge Ritter, for example, was charged 
     with discrete impeachable acts in separate articles, with a 
     catch-all article combining all of the prior articles tacked 
     on. He was acquitted on each separate article, but convicted 
     on the catch-all article that amounted to a charge of 
     ``general misbehavior.'' Id. at 5202-06.
       Third, that the Senate may have convicted a few lower court 
     judges on duplicitous articles is hardly precedent to be 
     followed in a presidential impeachment. See supra Standards 
     Part B.3.
       784. H.R. Res. 755 art. I.
       785. H.R. Res. 755 art. II.
       786. Rules of Procedure and Practice in the Senate when 
     Sitting on Impeachment Trials, Rule XXIII (``An article of 
     impeachment shall not be divisible for the purpose of voting 
     thereon at any time during the trial.''). The committee 
     report accompanying this rule made clear that the ``more 
     familiar'' practice was to ``embod[y] an impeachable offense 
     in an individual article'' rather than relying on broad, 
     potentially duplicitous articles. Amending the Rules of 
     Procedure and Practice in the Senate When Sitting on 
     Impeachment Trials, Report of the Comm. on Rules and Admin., 
     S. Rep. No. 99-401, 99th Cong., 8 (1986).
       787. The Federalist No. 65, at 400 (Alexander Hamilton) 
     (Clinton Rossiter ed., 1961).

                               APPENDIX A

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

                  Memorandum of Telephone Conversation

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

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

[[Page S354]]

     Giuliani give you a call and I am also going to have Attorney 
     General Barr call and we will get to the bottom of it. I'm 
     sure you will figure it out. I heard the prosecutor was 
     treated very badly and he was a very fair prosecutor so good 
     luck with everything. Your economy is going to get better and 
     better I predict. You have a lot of assets. It's a great 
     country. I have many Ukrainian friends, their incredible 
     people.
       President Zelensky: I would like to tell you that I also 
     have quite a few Ukrainian friends that live in the United 
     States. Actually last time I traveled to the United States, I 
     stayed in New York near Central Park and I stayed at the 
     Trump Tower. I will talk to them and I hope to see them again 
     in the future. I also wanted to thank you for your invitation 
     to visit the United States, specifically Washington DC. On 
     the other hand, I also want to ensure you that we will be 
     very serious about the case and will work on the 
     investigation. As to the economy, there is much potential for 
     our two countries and one of the issues that is very 
     important for Ukraine is energy independence. I believe we 
     can be very successful and cooperating on energy independence 
     with United States. We are already working on cooperation. We 
     are buying American oil but I am very hopeful for a future 
     meeting. We will have more time and more opportunities to 
     discuss these opportunities and get to know each other 
     better. I would like to thank you very much for your support
       The President: Good. Well, thank you very much and I 
     appreciate that. I will tell Rudy and Attorney General Barr 
     to call. Thank you. Whenever you would like to come to the 
     White House, feel free to call. Give us a date and we'll work 
     that out. I look forward to seeing you.
       President Zelensky: Thank you very much. I would be very 
     happy to come and would be happy to meet with you personally 
     and get to know you better. I am looking forward to our 
     meeting and I also would like to invite you to visit Ukraine 
     and come to the city of Kyiv which is a beautiful city. We 
     have a beautiful country which would welcome you. On the 
     other hand, I believe that on September 1 we will be in 
     Poland and we can meet in Poland hopefully. After that, it 
     might be a very good idea for you to travel to Ukraine. We 
     can either take my plane and go to Ukraine or we can take 
     your plane, which is probably much better than mine.
       The President: Okay, we can work that out. I look forward 
     to seeing you in Washington and maybe in Poland because I 
     think we are going to be there at that time.
       President Zelensky: Thank you very much Mr. President.
       The President: Congratulations on a fantastic job you've 
     done. The whole world was watching. I'm not sure it was so 
     much of an upset but congratulations.
       President Zelensky: Thank you Mr. President bye-bye.

                              APPENDIX B:

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

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

                              APPENDIX C:

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

                                       U.S. Department of Justice,


                                      Office of Legal Counsel,

                                 Washington, DC, January 19, 2020.

        MEMORANDUM FOR PAT A. CIPOLLONE COUNSEL TO THE PRESIDENT

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

[[Page S355]]

     3(m), 11. The House's legislative power is distinct from its 
     impeachment power. Compare U.S. Const. art. I. Sec. 1, with 
     id. art. I, Sec. 2, cl. 5. Although committees had that same 
     delegation during the Clinton impeachment and a materially 
     similar one during the Nixon impeachment, the House 
     determined on both occasions that the Judiciary Committee 
     required a resolution to investigate. Speaker Pelosi 
     purported to direct the committees to conduct an ``official 
     impeachment inquiry,'' but the House Rules do not give the 
     Speaker any authority to delegate investigative power. The 
     committees thus had no delegation authorizing them to issue 
     subpoenas pursuant to the House's impeachment power.
       In the face of objections to the validity of the committee 
     subpoenas that were expressed by the Administration, by 
     ranking minority members in the House, and by many Senators, 
     among others, on October 31, 2019, the House adopted 
     Resolution 660, which ``directed'' six committees ``to 
     continue their ongoing investigations'' as part of the 
     ``existing House of Representatives inquiry into whether 
     sufficient grounds exist'' to impeach President Trump. H.R. 
     Res. 660, 116th Cong. Sec. 1 (2019). Resolution 660's 
     direction, however, was entirely prospective. The resolution 
     did not purport to ratify any previously issued subpoenas or 
     even make any mention of them. Accordingly, the pre-October 
     31 subpoenas, which had not been authorized by the House, 
     continued to lack compulsory force.\5\

                                   I.

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

[[Page S356]]

     process because it had not been authorized by the full House 
     and did not provide the President with the procedural 
     protections enjoyed in past impeachment inquiries. S. Res. 
     378, 116th Cong. (2019).
       On October 25, 2019, the U.S. District Court for the 
     District of Columbia granted the Judiciary Committee's 
     request for grand-jury information from the Special Counsel's 
     investigation, holding that the committee was conducting an 
     impeachment inquiry that was ``preliminar[y] to . . . a 
     judicial proceeding,'' for purposes of the exception to 
     grand-jury secrecy in Rule 6(e)(3)(E)(i) of the Federal Rules 
     of Criminal Procedure. See In re Application of the Comm. on 
     the Judiciary, U.S. House of Reps., No. 19-gj-48, 2019 WL 
     5485221 (D.D.C. Oct. 25, 2019), stay granted, No. 19-5288 
     (D.C. Cir. Oct. 29, 2019), argued (D.C. Cir. Jan. 3, 2020). 
     In so holding, the court concluded that the House need not 
     adopt a resolution before a committee may begin an 
     impeachment inquiry. Id. at *26-28. As we discuss below, the 
     district court's analysis of this point relied on a 
     misreading of the historical record.
       Faced with continuing objections from the Administration 
     and members of Congress to the validity of the impeachment-
     related subpoenas, the House decided to take a formal vote to 
     authorize the impeachment inquiry. See Letter for Democratic 
     Members of the House from Nancy Pelosi, Speaker of the House 
     (Oct. 28, 2019). On October 31, the House adopted a 
     resolution ``direct[ing]'' several committees ``to continue 
     their ongoing investigations as part of the existing House of 
     Representatives inquiry into whether sufficient grounds exist 
     for the House of Representatives to exercise its 
     Constitutional power to impeach Donald John Trump, President 
     of the United States of America.'' Resolution 660, Sec. 1. 
     The resolution also adopted special procedures for 
     impeachment proceedings before HPSCI and the Judiciary 
     Committee.

                                  II.

       The Constitution vests in the House of Representatives a 
     share of Congress's legislative power and, separately, ``the 
     sole Power of Impeachment.'' U.S. Const. art. I, Sec. 1; id. 
     art. I, Sec. 2, cl. 5. Both the legislative power and the 
     impeachment power include an implied authority to 
     investigate, including by means of compulsory process. But 
     those investigative powers are not interchangeable. The House 
     has broadly delegated to committees its power to investigate 
     for legislative purposes, but it has held impeachment 
     authority more closely, granting authority to conduct 
     particular impeachment investigations only as the need has 
     arisen. The House has followed that approach from the very 
     first impeachment inquiry through dozens more that have 
     followed over the past 200 years, including every inquiry 
     involving a President.
       In so doing, the House has recognized the fundamental 
     difference between a legislative oversight investigation and 
     an impeachment investigation. The House does more than simply 
     pick a label when it ``debate[s] and decide[s] when it wishes 
     to shift from legislating to impeaching'' and to authorize a 
     committee to take responsibility for ``the grave and weighty 
     process of impeachment.'' Trump v. Mazars USA, LLP, 940 F.3d 
     710, 737, 738 (D.C. Cir. 2019), cert. granted, No. 19-715 
     (Dec. 13, 2019); see also id. at 757 (Rao, J., dissenting) 
     (recognizing that ``the Constitution forces the House to take 
     accountability for its actions when investigating the 
     President's misconduct''). Because a legislative 
     investigation seeks ``information respecting the conditions 
     which the legislation is intended to affect or change,'' 
     McGrain v. Daugherty, 273 U.S. 135, 175 (1927), ``legislative 
     judgments normally depend more on the predicted consequences 
     of proposed legislative actions and their political 
     acceptability, than on precise reconstruction of past 
     events,'' Senate Select Comm. on Presidential Campaign 
     Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974) (en 
     banc). By contrast, an impeachment inquiry must evaluate 
     whether a civil officer did, or did not, commit treason, 
     bribery, or another high crime or misdemeanor, U.S. Const. 
     art. II, Sec. 4, and it is more likely than a legislative 
     oversight investigation to call for the reconstruction of 
     past events.
       Thus, the House has traditionally marked the shift to an 
     impeachment inquiry by adopting a resolution that authorizes 
     a committee to investigate through court-like procedures 
     differing significantly from those used in routine oversight. 
     See, e.g., Jefferson's Manual Sec. 606, at 324 (recognizing 
     that, in modern practice, ``the sentiment of committees has 
     been in favor of permitting the accused to explain, present 
     witnesses, cross-examine, and be represented by counsel'' 
     (citations omitted)); see also Cong. Research Serv., R45983, 
     Congressional Access to Information in an Impeachment 
     Investigation 15 (Oct. 25, 2019) (``[D]uring both the Nixon 
     and Clinton impeachment investigations, the House Judiciary 
     Committee adopted resolutions affording the President and his 
     counsel the right to respond to evidence gathered by the 
     committee, raise objections to testimony, and cross-examine 
     witnesses[.]'').\12\ A House resolution authorizing the 
     opening of an impeachment inquiry plays a highly significant 
     role in directing the scope and nature of the constitutional 
     inquest that follows.
       Such a resolution does not just reflect traditional 
     practice. It is a constitutionally required step before a 
     committee may exercise compulsory process in aid of the 
     House's ``sole Power of Impeachment.'' U.S. Const. art. I, 
     Sec. 2, cl. 5. In this Part, we explain the basis for this 
     conclusion. First, we address the constitutional distinction 
     between the House's power to investigate for legislative 
     purposes and for impeachment purposes. We next explain why an 
     impeachment inquiry must be authorized by the House itself. 
     Finally, we review the historical record, which confirms, 
     across dozens of examples, that the House must specifically 
     authorize committees to conduct impeachment investigations 
     and to issue compulsory process.


                                   A.

       The Constitution vests several different powers in the 
     House of Representatives. As one half of Congress, the House 
     shares with the Senate the ``legislative Powers'' granted in 
     the Constitution (U.S. Const. art. I, Sec. 1), which include 
     the ability to pass bills (id. art. I, Sec. 7, cl. 2) and to 
     override presidential vetoes (id. art. I, Sec. 7, cl. 3) in 
     the process of enacting laws pursuant to Congress's 
     enumerated legislative powers (e.g., id. art. I, Sec. 8), 
     including the power to appropriate federal funds (id. art. I, 
     Sec. 9, cl. 7). But the House has other, non-legislative 
     powers. It is, for instance, ``the Judge of the Elections, 
     Returns and Qualifications of its own Members.'' Id. art. I, 
     Sec. 5, cl. 1. And it has ``the sole Power of Impeachment.'' 
     Id. art. I, Sec. 2, cl. 5.
       The House and Senate do not act in a legislative role in 
     connection with impeachment. The Constitution vests the House 
     with the authority to accuse civil officers of ``Treason, 
     Bribery, or other high Crimes and Misdemeanors'' that warrant 
     removal and disqualification from office. U.S. Const. art. I, 
     Sec. 2, cl. 5; id. art. I, Sec. 3, cl. 7; id. art. II, 
     Sec. 4. As Alexander Hamilton explained, the members of the 
     House act as ``the inquisitors for the nation.'' The 
     Federalist No. 65, at 440 (Jacob E. Cooke ed., 1961). And 
     Senators, in turn, act ``in their judicial character as a 
     court for the trial of impeachments.'' Id. at 439; see also 
     The Federalist No. 66, at 445-46 (defending the ``partial 
     intermixture'' in the impeachment context of usually 
     separated powers as ``not only proper, but necessary to the 
     mutual defense of the several members of the government, 
     against each other''; noting that dividing ``the right of 
     accusing'' from ``the right of judging'' between ``the two 
     branches of the legislature . . . avoids the inconvenience of 
     making the same persons both accusers and judges''). The 
     House's impeachment authority differs fundamentally in 
     character from its legislative power.
       With respect to both its legislative and its impeachment 
     powers, the House has corresponding powers of investigation, 
     which enable it to collect the information necessary for the 
     exercise of those powers. The Supreme Court has explained 
     that ``[t]he power of inquiry--with process to enforce it--is 
     an essential and appropriate auxiliary to the legislative 
     function.'' McGrain, 273 U.S. at 174. Thus, in the 
     legislative context, the House's investigative power 
     ``encompasses inquiries concerning the administration of 
     existing laws as well as proposed or possibly needed 
     statutes.'' Watkins v. United States, 354 U.S. 178, 187 
     (1957); see also Scope of Congressional Oversight and 
     Investigative Power with Respect to the Executive Branch, 9 
     Op. O.L.C. 60, 60 (1985) (``Congress may conduct 
     investigations in order to obtain facts pertinent to possible 
     legislation and in order to evaluate the effectiveness of 
     current laws.''). The Court has further recognized that the 
     House also has implied powers to investigate in support of 
     its other powers, including its power of impeachment. See, 
     e.g., Kilbourn v. Thompson, 103 U.S. 168, 190 (1880); see 
     also In re Request for Access to Grand Jury Materials, 833 
     F.2d 1438, 1445 (11th Cir. 1987) (the House ``holds 
     investigative powers that are ancillary to its impeachment 
     power''); Mazars USA, 940 F.3d at 749 (Rao, J., dissenting) 
     (``The House . . . has a separate power to investigate 
     pursuant to impeachment[.]'').
       Because the House has different investigative powers, 
     establishing which authority has been delegated has often 
     been necessary in the course of determining the scope of a 
     committee's authority to compel witnesses and testimony. In 
     addressing the scope of the House's investigative powers, all 
     three branches of the federal government have recognized the 
     constitutional distinction between a legislative 
     investigation and an impeachment inquiry.
     1.
       We begin with the federal courts. In Kilbourn, the Supreme 
     Court held that a House committee could not investigate a 
     bankrupt company indebted to the United States because its 
     request exceeded the scope of the legislative power. 
     According to the Court, the committee had employed 
     investigative power to promote the United States' interests 
     as a creditor, rather than for any valid legislative purpose. 
     See 103 U.S. at 192-95. At the same time, the Court conceded 
     that ``the whole aspect of the case would have been changed'' 
     if ``any purpose had been avowed to impeach the [S]ecretary'' 
     of the Navy for mishandling the debts of the United States. 
     Id. at 193. But, after reviewing the resolution authorizing 
     the actions of the committee, the Court confirmed that the 
     House had not authorized any impeachment inquiry. Id.
       In a similar vein, the D.C. Circuit distinguished the needs 
     of the House Judiciary Committee, which was conducting an 
     impeachment inquiry into the actions of President Nixon, from 
     those of the Senate Select Committee on Presidential Campaign 
     Activities, whose investigation was premised upon

[[Page S357]]

     legislative oversight. See Senate Select Comm., 498 F.2d at 
     732. The court recognized that the impeachment investigation 
     was rooted in ``an express constitutional source'' and that 
     the House committee's investigative needs differed in kind 
     from the Senate committee's oversight needs. Id. In finding 
     that the Senate committee had not demonstrated that President 
     Nixon's audiotapes were ``critical to the performance of its 
     legislative functions,'' the court recognized ``a clear 
     difference between Congress's legislative tasks and the 
     responsibility of a grand jury, or any institution engaged in 
     like functions,'' such as the House Judiciary Committee, 
     which had ``begun an inquiry into presidential impeachment.'' 
     Id. (emphases added).
       More recently, the D.C. Circuit acknowledged this same 
     distinction in Mazars USA. As the majority opinion explained, 
     ``the Constitution has left to Congress the judgment whether 
     to commence the impeachment process'' and to decide whether 
     the conduct in question is ``better addressed through 
     oversight and legislation than impeachment.'' 940 F.3d at 
     739. Judge Rao's dissent also recognized the distinction 
     between a legislative oversight investigation and an 
     impeachment inquiry. See id. at 757 (``The Framers 
     established a mechanism for Congress to hold even the highest 
     officials accountable, but also required the House to take 
     responsibility for invoking this power.''). Judge Rao 
     disagreed with the majority insofar as she understood 
     Congress's impeachment power to be the sole means for 
     investigating past misconduct by impeachable officers. But 
     both the majority and the dissent agreed with the fundamental 
     proposition that the Constitution distinguishes between 
     investigations pursuant to the House's impeachment authority 
     and those that serve its legislative authority (including 
     oversight).
     2.
       The Executive Branch similarly has long distinguished 
     between investigations for legislative and for impeachment 
     purposes. In 1796, the House ``[r]esolved'' that President 
     Washington ``be requested to lay before th[e] House a copy of 
     the instructions'' given to John Jay in preparation for his 
     negotiation of a peace settlement with Great Britain. 5 
     Annals of Cong. 759-62 (1796). Washington refused to comply 
     because the Constitution contemplates that only the Senate, 
     not the House, must consent to a treaty. See id. at 760-61. 
     ``It d[id] not occur'' to Washington ``that the inspection of 
     the papers asked for, c[ould] be relative to any purpose 
     under the cognizance of the House of Representatives, except 
     that of an impeachment.'' Id. at 760 (emphasis added). 
     Because the House's ``resolution ha[d] not expressed'' any 
     purpose of pursuing impeachment, Washington concluded that 
     ``a just regard to the constitution . . . forb[ade] a 
     compliance with [the House's] request'' for documents. Id. at 
     760, 762.
       In 1832, President Jackson drew the same line. A select 
     committee of the House had requested that the Secretary of 
     War ``furnish[]'' it ``with a copy'' of an unratified 1830 
     treaty with the Chickasaw Tribe and ``the journal of the 
     commissioners'' who negotiated it. H.R. Rep. No. 22-488, at 1 
     (1832). The Secretary conferred with Jackson, who refused to 
     comply with the committee's request on the same ground cited 
     by President Washington: he ``d[id] not perceive that a copy 
     of any part of the incomplete and unratified treaty of 1830, 
     c[ould] be relative to any purpose under the cognizance of 
     the House of Representatives, except that of an impeachment, 
     which the resolution has not expressed.' '' Id. at 14 
     (reprinting Letter for Charles A. Wickliffe, Chairman, 
     Committee on Public Lands, U.S. House of Representatives, 
     from Lewis Cass, Secretary of War (Mar. 2, 1832)).
       In 1846, another House select committee requested that 
     President Polk account for diplomatic expenditures made in 
     previous administrations by Secretary of State Daniel 
     Webster. Polk refused to disclose information but 
     ``cheerfully admitted'' that the House may have been entitled 
     to such information if it had ``institute[d] an [impeachment] 
     inquiry into the matter.'' Cong. Globe, 29th Cong., 1st Sess. 
     698 (1846).\13\ Notably, he took this position even though 
     some members of Congress had suggested that evidence about 
     the expenditures could support an impeachment of Webster.\14\ 
     In these and other instances, the Executive Branch has 
     consistently drawn a distinction between the power of 
     legislative oversight and the power of impeachment. See 
     Mazars USA, 940 F.3d at 761-64 (Rao, J., dissenting) 
     (discussing examples from the Buchanan, Grant, Cleveland, 
     Theodore Roosevelt, and Coolidge Administrations).
     3.
       House members, too, have consistently recognized the 
     difference between a legislative oversight investigation and 
     an impeachment investigation. See Alissa M. Dolan et al., 
     Cong. Research Serv., RL30240, Congressional Oversight Manual 
     25 (Dec. 19, 2014) (``A committee's inquiry must have a 
     legislative purpose or be conducted pursuant to some other 
     constitutional power of Congress, such as the authority .  .  
     . to .  .  . conduct impeachment proceedings.'' (emphases 
     added)); Cong. Research Serv., Congressional Access to 
     Information in an Impeachment Investigation at 1 
     (distinguishing between ``legislative investigation[s]'' and 
     ``[m]uch more rare[]'' ``impeachment investigation[s]'').
       For instance, in 1793, when debating the House's 
     jurisdiction to investigate Secretary of the Treasury 
     Alexander Hamilton, some members argued that the House could 
     not adopt a resolution of investigation into Hamilton's 
     conduct without adopting the ``solemnities and guards'' of an 
     impeachment inquiry. See, e.g., 3 Annals of Cong. 903 (1793) 
     (statement of Rep. Smith); id. at 947-48 (statement of Rep. 
     Boudinot) (distinguishing between the House's ``Legislative 
     capacity'' and its role as ``the grand inquest of the 
     Nation''); see also Mazars USA, 940 F.3d at 758 (Rao, J., 
     dissenting) (discussing the episode). In 1796, when the House 
     debated whether to request the President's instructions for 
     negotiating the Jay Treaty, Representative Murray concluded 
     that the House could not meddle in treatymaking, but 
     acknowledged that ``the subject would be presented under an 
     aspect very different'' if the resolution's supporters 
     had ``stated the object for which they called for the 
     papers to be an impeachment.'' 5 Annals of Cong. 429-30 
     (1796).
       Similarly, in 1846, a House select committee agreed with 
     President Polk's decision not to turn over requested 
     information regarding State Department expenditures where the 
     House did not act ``with a view to an impeachment.'' H.R. 
     Rep. No. 29-684, at 4 (1846) (noting that four of the 
     committee's five members ``entirely concur with the President 
     of the United States'' in deciding not to ``communicate or 
     make [the requested documents] public, except with a view to 
     an impeachment'' and that ``[n]o dissent from the views of 
     that message was expressed by the House''); see also Mazars 
     USA, 940 F.3d at 761 (Rao, J., dissenting). To take another 
     example, in 1879, the House Judiciary Committee distinguished 
     ``[i]nvestigations looking to the impeachment of public 
     officers'' from ``an ordinary investigation for legislative 
     purposes.'' H.R. Rep. No. 45-141, at 2 (1879).
       Most significantly, during the impeachments of Presidents 
     Nixon and Clinton, the House Judiciary Committee determined 
     that the House must provide express authorization before any 
     committee may exercise compulsory powers in an impeachment 
     investigation. See infra Part II.C.1. Thus, members of the 
     House, like the other branches of government, have squarely 
     recognized the distinction between congressional 
     investigations for impeachment purposes and those for 
     legislative purposes.


                                   B.

       Although the House of Representatives has ``the sole Power 
     of Impeachment,'' U.S. Const. art. I, Sec. 2, cl. 5 (emphasis 
     added), the associated power to conduct an investigation for 
     impeachment purposes may, like the House's other 
     investigative powers, be delegated. The full House may make 
     such a delegation by adopting a resolution in exercise of its 
     authority to determine the rules for its proceedings, see id. 
     art. I, Sec. 5, cl. 2, and each House has broad discretion in 
     determining the conduct of its own proceedings. See, e.g., 
     NLRB v. Noel Canning, 573 U.S. 513, 551-52 (2014); United 
     States v. Ballin, 144 U.S. 1, 5 (1892); see also 1 Deschler's 
     Precedents ch. 5, Sec. 4, at 305-06. But the House must 
     actually exercise its discretion by making that judgment in 
     the first instance, and its resolution sets the terms of a 
     committee's authority. See United States v. Rumely, 345 U.S. 
     41, 44 (1953). No committee may exercise the House's 
     investigative powers in the absence of such a delegation.
       As the Supreme Court has explained in the context of 
     legislative oversight, ``[t]he theory of a committee inquiry 
     is that the committee members are serving as the 
     representatives of the parent assembly in collecting 
     information for a legislative purpose'' and, in such 
     circumstances, committees ``are endowed with the full power 
     of the Congress to compel testimony.'' Watkins, 354 U.S. at 
     200-01. The same is true for impeachment investigations.\15\ 
     Thus, Hamilton recognized, the impeachment power involves a 
     trust of such ``delicacy and magnitude'' that it ``deeply 
     concerns the political reputation and existence of every man 
     engaged in the administration of public affairs.'' The 
     Federalist No. 65, at 440. The Founders foresaw that an 
     impeachment effort would ``[i]n many cases . . . connect 
     itself with the pre-existing factions'' and ``inlist all 
     their animosities, partialities, influence and interest on 
     one side, or on the other.'' Id. at 439. As a result, they 
     placed the solemn authority to initiate an impeachment in 
     ``the representatives of the nation themselves.'' Id. at 440. 
     In order to entrust one of its committees to investigate for 
     purposes of impeachment, the full House must ``spell out that 
     group's jurisdiction and purpose.'' Watkins, 354 U.S. at 201. 
     Otherwise, a House committee controlled by such a faction 
     could launch open-ended and untethered investigations without 
     the sanction of a majority of the House.
       Because a committee may exercise the House's investigative 
     powers only when authorized, the committee's actions must be 
     within the scope of a resolution delegating authority from 
     the House to the committee. As the D.C. Circuit recently 
     explained, ``it matters not whether the Constitution would 
     give Congress authority to issue a subpoena if Congress has 
     given the issuing committee no such authority.'' Mazars USA, 
     940 F.3d at 722; see Dolan, Congressional Oversight Manual at 
     24 (``Committees of Congress only have the power to inquire 
     into matters within the scope of the authority delegated to 
     them by their parent body.''). In evaluating a committee's 
     authority, the House's resolution ``is the controlling 
     charter of the committee's powers,'' and, therefore, the 
     committee's ``right to exact testimony and to call for the 
     production of documents must be

[[Page S358]]

     found in this language.'' Rumely, 345 U.S. at 44; see also 
     Watkins, 354 U.S. at 201 (``Those instructions are embodied 
     in the authorizing resolution. That document is the 
     committee's charter.''); id. at 206 (``Plainly [the House's] 
     committees are restricted to the missions delegated to them . 
     . . . No witness can be compelled to make disclosures on 
     matters outside that area.''); Exxon Corp. v. FTC, 589 F.2d 
     582, 592 (D.C. Cir. 1978) (``To issue a valid subpoena, . . . 
     a committee or subcommittee must conform strictly to the 
     resolution establishing its investigatory powers[.]''); 
     United States v. Lamont, 18 F.R.D. 27, 32 (S.D.N.Y. 1955) 
     (Weinfeld, J.) (``No committee of either the House or Senate, 
     and no Senator and no Representative, is free on its or his 
     own to conduct investigations unless authorized. Thus it must 
     appear that Congress empowered the Committee to act, and 
     further that at the time the witness allegedly defied its 
     authority the Committee was acting within the power granted 
     to it.''). While a committee may study some matters without 
     exercising the investigative powers of the House, a 
     committee's authority to compel the production of documents 
     and testimony depends entirely upon the jurisdiction provided 
     by the terms of the House's delegation.
       In Watkins, the Supreme Court relied upon those principles 
     to set aside a conviction for contempt of Congress because of 
     the authorizing resolution's vagueness. The uncertain scope 
     of the House's delegation impermissibly created ``a wide gulf 
     between the responsibility for the use of investigative power 
     and the actual exercise of that power.'' 354 U.S. at 205. If 
     the House wished to authorize the exercise of its 
     investigative power, then it needed to take responsibility 
     for the use of that power, because a congressional subpoena, 
     issued with the threat of a criminal contempt citation, 
     necessarily placed ``constitutional liberties'' in 
     ``danger.'' Id.
       The concerns expressed by the Court in Watkins apply with 
     equal, if not greater, force when considering the authority 
     of a House committee to compel the production of documents in 
     connection with investigating impeachment. As John Labovitz, 
     a House impeachment attorney during the Nixon investigation, 
     explained: ``[I]mpeachment investigations, because they 
     involve extraordinary power and (at least where the president 
     is being investigated) may have extraordinary consequences, 
     are not to be undertaken in the same manner as run-of-the-
     mill legislative investigations. The initiation of a 
     presidential impeachment inquiry should itself require a 
     deliberate decision by the House.'' John R. Labovitz, 
     Presidential Impeachment 184 (1978). Because a committee 
     possesses only the authorities that have been delegated to 
     it, a committee may not use compulsory process to investigate 
     impeachment without the formal authorization of the House.


                                   C.

       Historical practice confirms that the House must authorize 
     an impeachment inquiry. See, e.g., Zivotofsky v. Kerry, 135 
     S. Ct. 2076, 2091 (2015) (recognizing that ``[i]n separation-
     of-powers cases,'' the Court has placed ``significant 
     weight'' on ``accepted understandings and practice''); Noel 
     Canning, 573 U.S. at 514 (same). The House has expressly 
     authorized every impeachment investigation of a President, 
     including by identifying the investigative committee and 
     authorizing the use of compulsory process. The same thing has 
     been true for nearly all impeachment investigations of other 
     executive officials and judges. While committees have 
     sometimes studied a proposed impeachment resolution or 
     reviewed available information without conducting a formal 
     investigation, in nearly every case in which the committee 
     resorted to compulsory process, the House expressly 
     authorized the impeachment investigation. That practice was 
     foreseen as early as 1796. When Washington asked his Cabinet 
     for opinions about how to respond to the House's request for 
     the papers associated with the Jay Treaty, the Secretary of 
     the Treasury, Oliver Wolcott Jr., explained that ``the House 
     of Representatives has no right to demand papers'' outside 
     its legislative function ``[e]xcept when an Impeachment is 
     proposed & a formal enquiry instituted.'' Letter for George 
     Washington from Oliver Wolcott Jr. (Mar. 26, 1796), reprinted 
     in 19 The Papers of George Washington: Presidential Series 
     611-12 (David R. Hoth ed., 2016) (emphasis added).
       From the very first impeachment, the House has recognized 
     that a committee would require a delegation to conduct an 
     impeachment inquiry. In 1797, when House members considered 
     whether a letter contained evidence of criminal misconduct by 
     Senator William Blount, they sought to confirm Blount's 
     handwriting but concluded that the Committee of the Whole did 
     not have the power of taking evidence. See 7 Annals of Cong. 
     456-58 (1797); 3 Asher C. Hinds, Hinds' Precedents of the 
     House of Representatives of the United States Sec. 2294, at 
     644-45 (1907). Thus, the committee ``rose,'' and the House 
     itself took testimony. 3 Hinds' Precedents Sec. 2294, at 646. 
     Two days later, the House appointed a select committee to 
     ``prepare and report articles of impeachment'' and vested in 
     that committee the ``power to send for persons, papers, and 
     records.'' 7 Annals of Cong. at 463-64, 466; 3 Hinds' 
     Precedents Sec. 2297, at 648.\16\ As we discuss in this 
     section, we have identified dozens of other instances 
     where the House, in addition to referring proposed 
     articles of impeachment, authorized formal impeachment 
     investigations.
       Against this weighty historical record, which involves 
     nearly 100 authorized impeachment investigations, the 
     outliers are few and far between.\17\ In 1879, it appears 
     that a House committee, which was expressly authorized to 
     conduct an oversight investigation into the administration of 
     the U.S. consulate in Shanghai, ultimately investigated and 
     recommended that the former consul-general and former vice 
     consul-general be impeached. In addition, between 1986 and 
     1989, the Judiciary Committee considered the impeachment of 
     three federal judges who had been criminally prosecuted (two 
     of whom had been convicted). The Judiciary Committee pursued 
     impeachment before there had been any House vote, and issued 
     subpoenas in two of those inquiries. Since then, however, the 
     Judiciary Committee reaffirmed during the impeachment of 
     President Clinton that, in order to conduct an impeachment 
     investigation, it needed an express delegation of 
     investigative authority from the House. And in all subsequent 
     cases the House has hewed to the well-established practice of 
     authorizing each impeachment investigation.
       The U.S. District Court for the District of Columbia 
     recently reviewed a handful of historical examples and 
     concluded that House committees may conduct impeachment 
     investigations without a vote of the full House. See In re 
     Application of the Comm. on the Judiciary, 2019 WL 5485221, 
     at *26-28. Yet, as the discussion below confirms, the 
     district court misread the lessons of history.\18\ The 
     district court treated the House Judiciary Committee's 
     preliminary inquiries in the Clinton and Nixon impeachments 
     as investigations, without recognizing that, in both cases, 
     the committee determined that a full House vote was necessary 
     before it could issue subpoenas. The district court also 
     treated the 1980s judicial inquiries as if they represented a 
     rule of practice, rather than a marked deviation from the 
     dozens of occasions where the House recognized the need to 
     adopt a formal resolution to delegate its investigative 
     authority. As our survey below confirms, the historical 
     practice with respect to Presidents, other executive 
     officers, and judges is consistent with the structure of our 
     Constitution, which requires the House, as the ``sole'' 
     holder of impeachment power, to authorize any impeachment 
     investigation that a committee may conduct on its behalf.
     1.
       While many Presidents have been the subject of less-formal 
     demands for impeachment, at least eleven have faced 
     resolutions introduced in the House for the purpose of 
     initiating impeachment proceedings.\19\ In some cases, the 
     House formally voted to reject opening a presidential 
     impeachment investigation. In 1843, the House rejected a 
     resolution calling for an investigation into the impeachment 
     of President Tyler. See Cong. Globe, 27th Cong., 3d Sess. 
     144-46 (1843). In 1932, the House voted by a wide margin to 
     table a similar resolution introduced against President 
     Hoover. See 76 Cong. Rec. 399-402 (1932). In many other 
     cases, the House simply referred impeachment resolutions to 
     the Judiciary Committee, which took no further action before 
     the end of the Congress. But, in three instances before 
     President Trump, the House moved forward with investigating 
     the impeachment of a President.\20\ Each of those 
     presidential impeachments advanced to the investigative stage 
     only after the House adopted a resolution expressly 
     authorizing a committee to conduct the investigation. In no 
     case did the committee use compulsory process until the House 
     had expressly authorized the impeachment investigation.
       The impeachment investigation of President Andrew Johnson. 
     On January 7, 1867, the House adopted a resolution 
     authorizing the ``Committee on the Judiciary'' to ``inquire 
     into the official conduct of Andrew Johnson . . . and to 
     report to this House whether, in their opinion,'' the 
     President ``has been guilty of any act, or has conspired with 
     others to do acts, which, in contemplation of the 
     Constitution, are high crimes or misdemeanors.'' Cong. Globe, 
     39th Cong., 2d Sess. 320-21 (1867); see also 3 Hinds' 
     Precedents Sec. 2400, at 824. The resolution conferred upon 
     the committee the ``power to send for persons and papers and 
     to administer the customary oath to witnesses.'' Cong. Globe, 
     39th Cong., 2d Sess. 320 (1867). The House referred a second 
     resolution to the Judiciary Committee on February 4, 1867. 
     Id. at 991; 3 Hinds' Precedents Sec. 2400, at 824.\21\ 
     Shortly before that Congress expired, the committee reported 
     that it had seen ``sufficient testimony . . . to justify and 
     demand a further prosecution of the investigation.'' H.R. 
     Rep. No. 39-31, at 2 (1867). On March 7, 1867, the House in 
     the new Congress adopted a resolution that authorized the 
     committee ``to continue the investigation authorized'' in the 
     January 7 resolution and to ``send for persons and papers'' 
     and administer oaths. Cong. Globe, 40th Cong., 1st Sess. 18, 
     25 (1867); 3 Hinds' Precedents Sec. 2401, at 825-26. The 
     committee recommended articles of impeachment, but the House 
     rejected those articles on December 7, 1867. See Cong. Globe, 
     40th Cong., 2d Sess. 67-68 (1867). In early 1868, however, 
     the House adopted resolutions authorizing another 
     investigation, with compulsory powers, by the Committee on 
     Reconstruction and transferred to that committee the evidence 
     from the Judiciary Committee's earlier investigation. See 
     Cong. Globe, 40th Cong., 2d Sess. 784-85, 1087 (1868); 3 
     Hinds' Precedents Sec. 2408, at 845.
       On February 21, 1868, the impeachment effort received new 
     impetus when Johnson removed the Secretary of War without the

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     Senate's approval, contrary to the terms of the Tenure of 
     Office Act, which Johnson (correctly) held to be an 
     unconstitutional limit on his authority. See Cong. Globe, 
     40th Cong., 2d Sess. 1326-27 (1868); 3 Hinds' Precedents 
     Sec. 2408-09, at 845-47; see also Myers v. United States, 272 
     U.S. 52, 176 (1926) (finding that provision of the Tenure of 
     Office Act ``was invalid''). That day, the Committee on 
     Reconstruction reported an impeachment resolution to the 
     House, which was debated on February 22 and passed on 
     February 24. Cong. Globe, 40th Cong., 2d Sess. 1400 (1868); 3 
     Hinds' Precedents Sec. Sec. 2409-12, at 846-51.
       The impeachment investigation of President Nixon. Although 
     many resolutions were introduced in support of President 
     Nixon's impeachment earlier in 1973, the House's formal 
     impeachment inquiry arose in the months following the 
     ``Saturday Night Massacre,'' during which President Nixon 
     caused the termination of Special Prosecutor Archibald Cox at 
     the cost of the resignations of his Attorney General and 
     Deputy Attorney General. See Letter Directing the Acting 
     Attorney General to Discharge the Director of the Office of 
     Watergate Special Prosecution Force (Oct. 20, 1973), Pub. 
     Papers of Pres. Richard Nixon 891 (1973). Immediately 
     thereafter, House members introduced resolutions calling 
     either for the President's impeachment or for the opening of 
     an investigation.\22\ The Speaker of the House referred the 
     resolutions calling for an investigation to the Rules 
     Committee and those calling for impeachment to the Judiciary 
     Committee. See Office of Legal Counsel, U.S. Dep't of 
     Justice, Legal Aspects of Impeachment: An Overview at 40 
     (Feb. 1974) (``Legal Aspects of Impeachment''); 3 
     Deschler's Precedents ch. 14, Sec. 5, at 2020.
       Following the referrals, the Judiciary Committee ``beg[a]n 
     an inquiry into whether President Nixon ha[d] committed any 
     offenses that could lead to impeachment,'' an exercise that 
     the committee considered ``preliminary.'' Richard L. Madden, 
     Democrats Agree on House Inquiry into Nixon's Acts, N.Y. 
     Times, Oct. 23, 1973, at 1. The committee started collecting 
     publicly available materials, and Chairman Peter Rodino Jr. 
     stated that he would ``set up a separate committee staff to 
     `collate' investigative files from Senate and House 
     committees that have examined a variety of charges against 
     the Nixon Administration.'' James M. Naughton, Rodino Vows 
     Fair Impeachment Inquiry, N.Y. Times, Oct. 30, 1973, at 32.
       Although the committee ``adopted a resolution permitting 
     Mr. Rodino to issue subpoenas without the consent of the full 
     committee,'' James M. Naughton, House Panel Starts Inquiry on 
     Impeachment Question, N.Y. Times, Oct. 31, 1973, at 1, no 
     subpoenas were ever issued under that purported authority. 
     Instead, the committee ``delayed acting'' on the impeachment 
     resolutions. James M. Naughton, House Unit Looks to 
     Impeachment, N.Y. Times, Dec. 2, 1973, at 54. By late 
     December, the committee had hired a specialized impeachment 
     staff. A Hard-Working Legal Adviser: John Michael Doar, N.Y. 
     Times, Dec. 21, 1973, at 20. The staff continued `` `wading 
     through the mass of material already made public,' '' and the 
     committee's members began considering ``the areas in which 
     the inquiry should go.'' Bill Kovach, Vote on Subpoena Could 
     Test House on Impeachment, N.Y. Times, Jan. 8, 1974, at 14; 
     see also Staff of the H. Comm. on the Judiciary, 93d Cong., 
     Rep. on Work of the Impeachment Inquiry Staff as of February 
     5, 1974, at 2-3 (1974) (noting that the staff was ``first 
     collecting and sifting the evidence available in the public 
     domain,'' then ``marshaling and digesting the evidence 
     available through various governmental investigations''). By 
     January 1974, the committee's actions had consisted of 
     digesting publicly available documents and prior impeachment 
     precedents. That was consistent with the committee's ``only 
     mandate,'' which was to ``study more than a dozen impeachment 
     resolutions submitted'' in 1973. James M. Naughton, 
     Impeachment Panel Seeks House Mandate for Inquiry, N.Y. 
     Times, Jan. 25, 1974, at 1.
       In January, the committee determined that a formal 
     investigation was necessary, and it requested ``an official 
     House mandate to conduct the inquiry,'' relying upon the 
     ``precedent in each of the earlier [impeachment] inquiries.'' 
     Id. at 17. On January 7, Chairman Rodino ``announced that the 
     Committee's subpoena power does not extend to impeachment and 
     that . . . the Committee would seek express authorization to 
     subpoena persons and documents with regard to the impeachment 
     inquiry.'' Legal Aspects of Impeachment at 43; see also 
     Richard L. Lyons, GOP Picks Jenner as Counsel, Wash. Post, 
     Jan. 8, 1974, at A1, A6 (``Rodino said the committee will ask 
     the House when it reconvenes Jan. 21 to give it power to 
     subpoena persons and documents for the inquiry. The 
     committee's subpoena power does not now extend to impeachment 
     proceedings, he said.''). As the House Parliamentarian later 
     explained, the Judiciary Committee's general authority to 
     conduct investigations and issue subpoenas ``did not 
     specifically include impeachments within the jurisdiction of 
     the Committee on the Judiciary,'' and it was therefore 
     ``considered necessary for the House to specifically vest the 
     Committee on the Judiciary with the investigatory and subpena 
     power to conduct the impeachment investigation.'' 3 
     Deschler's Precedents ch. 14, Sec. 15.2, at 2172 
     (Parliamentarian's Note).
       On February 6, 1974, the House approved Resolution 803, 
     which ``authorized and directed'' the Judiciary Committee 
     ``to investigate fully and completely whether sufficient 
     grounds exist for the House of Representatives to exercise 
     its constitutional power to impeach Richard M. Nixon, 
     President of the United States of America.'' H.R. Res. 803, 
     93d Cong. Sec. 1. The resolution specifically authorized the 
     committee ``to require . . . by subpena or otherwise . . . 
     the attendance and testimony of any person'' and ``the 
     production of such things'' as the committee ``deem[ed] 
     necessary'' to its investigation. Id. Sec. 2(a).
       Speaking on the House floor, Chairman Rodino described the 
     resolution as a ``necessary step'' to confer the House's 
     investigative powers on the Judiciary Committee:
       We have reached the point when it is important that the 
     House explicitly confirm our responsibility under the 
     Constitution.
       We are asking the House of Representatives, by this 
     resolution, to authorize and direct the Committee on the 
     Judiciary to investigate the conduct of the President of the 
     United States . . . .
       As part of that resolution, we are asking the House to give 
     the Judiciary Committee the power of subpena in its 
     investigations.
       Such a resolution has always been passed by the House. . . 
     . It is a necessary step if we are to meet our obligations.
       . . . .
       . . . The sole power of impeachment carries with it the 
     power to conduct a full and complete investigation of whether 
     sufficient grounds for impeachment exist or do not exist, and 
     by this resolution these investigative powers are conferred 
     to their full extent upon the Committee on the Judiciary.

     120 Cong. Rec. 2350-51 (1974) (emphases added). During the 
     debate, others recognized that the resolution would delegate 
     the House's investigative powers to the Judiciary Committee. 
     See, e.g., id. at 2361 (statement of Rep. Rostenkowski) (``By 
     delegating to the Judiciary Committee the powers contained in 
     this resolution, we will be providing that committee with the 
     resources it needs to inform the whole House of the facts of 
     this case.''); id. at 2362 (statement of Rep. Boland) 
     (``House Resolution 803 is intended to delegate to the 
     Committee on the Judiciary the full extent of the powers of 
     this House in an impeachment proceeding[]--both as to the 
     persons and types of things that may be subpenaed and the 
     methods for doing so.''). Only after the Judiciary Committee 
     had received authorization from the House did it request and 
     subpoena tape recordings and documents from President Nixon. 
     See H.R. Rep. No. 93-1305, at 187 (1974).\23\
       The impeachment investigation of President Clinton. On 
     September 9, 1998, Independent Counsel Kenneth W. Starr, 
     acting under 28 U.S.C. Sec. 595(c), advised the House of 
     Representatives that he had uncovered substantial and 
     credible information that he believed could constitute 
     grounds for the impeachment of President Clinton. 18 
     Deschler's Precedents app. at 548-49 (2013). Two days later, 
     the House adopted a resolution that referred the matter, 
     along with Starr's report and 36 boxes of evidence, to the 
     Judiciary Committee. H.R. Res. 525, 105th Cong. (1998). The 
     House directed that committee to review the report and 
     ``determine whether sufficient grounds exist to recommend to 
     the House that an impeachment inquiry be commenced.'' Id. 
     Sec. 1. The Rules Committee's Chairman emphasized that the 
     House would need to adopt a subsequent resolution if it 
     decided to authorize an impeachment inquiry: ``[T]his 
     resolution does not authorize or direct an impeachment 
     inquiry. . . . It merely provides the appropriate parameters 
     for the Committee on the Judiciary . . . to . . . make a 
     recommendation to the House as to whether we should commence 
     an impeachment inquiry.'' 144 Cong. Rec. 20021 (1998) 
     (statement of Rep. Solomon).
       On October 7, 1998, the Judiciary Committee did recommend 
     that there be an investigation for purposes of impeachment. 
     As explained in the accompanying report: ``[T]he Committee 
     decided that it must receive authorization from the full 
     House before proceeding on any further course of action. 
     Because impeachment is delegated solely to the House of 
     Representatives by the Constitution, the full House of 
     Representatives should be involved in critical decision 
     making regarding various stages of impeachment.'' H.R. Rep. 
     No. 105-795, at 24 (emphasis added). The committee also 
     observed that ``a resolution authorizing an impeachment 
     inquiry into the conduct of a president is consistent with 
     past practice,'' citing the resolutions for Presidents 
     Johnson and Nixon and observing that ``numerous other 
     inquiries were authorized by the House directly, or by 
     providing investigative authorities, such as deposition 
     authority, to the Committee on the Judiciary.'' Id.
       The next day, the House voted to authorize the Judiciary 
     Committee to ``investigate fully and completely whether 
     sufficient grounds exist for the House of Representatives to 
     exercise its constitutional power to impeach William 
     Jefferson Clinton, President of the United States of 
     America.'' H.R. Res. 581, 105th Cong. Sec. 1 (1998). The 
     resolution authorized the committee ``to require . . . by 
     subpoena or otherwise . . . the attendance and testimony of 
     any person'' and ``the production of . . . things,'' and to 
     require the furnishing of information ``by interrogatory.'' 
     Id. Sec. 2(a). ``On November 5, 1998,'' as part of its 
     investigation, ``the Committee presented President Clinton 
     with 81 requests for admission,'' which the Committee 
     explained that it ``would have . . . compelled by subpoena'' 
     had President Clinton not complied. H.R. Rep. No. 105-830, at 
     77, 122

[[Page S360]]

     (1998). And the Committee then ``approved the issuance of 
     subpoenas for depositions and materials'' from several 
     witnesses. 144 Cong. Rec. D1210-11 (daily ed. Dec. 17, 1998).
       In discussing the Clinton precedent, the district court in 
     In re Application of the Committee on the Judiciary treated 
     the D.C. Circuit's approval of the disclosure of Starr's 
     report and associated grand-jury information as evidence that 
     the Judiciary Committee may ``commence an impeachment 
     investigation'' without a House vote. 2019 WL 5485221, at *27 
     & n.36. But the D.C. Circuit did not authorize that 
     disclosure because of any pending House investigation. It did 
     so because a statutory provision required an independent 
     counsel to ``advise the House of Representatives of any 
     substantial and credible information which such independent 
     counsel receives . . . that may constitute grounds for an 
     impeachment.'' 28 U.S.C. Sec. 595(c) (emphasis added). And 
     the D.C. Circuit viewed the report as reflecting 
     ``information of the type described in 28 U.S.C. 
     Sec. 595(c).'' In re Madison Guar. Sav. & Loan Ass'n, Div. 
     No. 94-1 (D.C. Cir. Spec. Div. July 7, 1998), reprinted in 
     H.R. Doc. No. 105-331, pt. 1, at 10 (1998). The order 
     authorizing the transmission of that information to the 
     House did not imply that any committee was conducting an 
     impeachment investigation. To the contrary, after the 
     House received the information, ``no person had access 
     to'' it until after the House adopted a resolution 
     referring the matter to the Judiciary Committee. H.R. Rep. 
     No. 105-795, at 5. And the House then adopted a second 
     resolution (Resolution 581) to authorize a formal 
     investigation. In other words, the House voted to 
     authorize the Judiciary Committee both to review the Starr 
     evidence and to conduct an impeachment investigation. 
     Neither the D.C. Circuit nor the Judiciary Committee 
     suggested that any committee could have taken such action 
     on its own.
     2.
       The House has historically followed these same procedures 
     in considering impeachment resolutions against executive 
     branch officers other than the President. In many cases, an 
     initial resolution laying out charges of impeachment or 
     authorizing an investigation was referred to a select or 
     standing committee.\24\ Following such a referral, the 
     designated committee reviewed the matter and considered 
     whether to pursue a formal impeachment inquiry--it did not 
     treat the referral as stand-alone authorization to conduct an 
     investigation. When a committee concluded that the charges 
     warranted investigation, it reported to the full House, which 
     then considered whether to adopt a resolution to authorize a 
     formal investigation.
       For example, in March 1867, the House approved a resolution 
     directing the Committee on Public Expenditures ``to inquire 
     into the conduct of Henry A. Smythe, collector of the port of 
     New York.'' Cong. Globe, 40th Cong., 1st Sess. 132 (1867); 
     see also id. (noting that the resolution had been modified 
     following debate ``so as to leave out that part about 
     bringing articles of impeachment''). Weeks later, the House 
     voted to authorize an impeachment investigation. Id. at 290 
     (authorizing the investigating committee to ``send for 
     persons and papers''). The House followed this same procedure 
     in 1916 for U.S. Attorney H. Snowden Marshall. H.R. Res. 90, 
     64th Cong. (1916) (initial resolution referred to the 
     Judiciary Committee); H.R. Res. 110, 64th Cong. (1916) 
     (resolution approving the investigation contemplated in the 
     initial resolution). And the process repeated in 1922 for 
     Attorney General Harry Daugherty. H.R. Res. 425, 67th Cong. 
     (1922) (referring the initial resolution to the committee); 
     H.R. Res. 461, 67th Cong. (1922) (resolution approving the 
     investigation contemplated in the initial resolution).
       In a few instances, the House asked committees to draft 
     articles of impeachment without calling for any additional 
     impeachment investigation. For example, in 1876, after 
     uncovering ``unquestioned evidence of the malfeasance in 
     office by General William W. Belknap'' (who was then 
     Secretary of War) in the course of another investigation, the 
     House approved a resolution charging the Committee on the 
     Judiciary with the responsibility to ``prepare and report 
     without unnecessary delay suitable articles of impeachment.'' 
     4 Cong. Rec. 1426, 1433 (1876). When a key witness left the 
     country, however, the committee determined that additional 
     investigation was warranted, and it asked to be authorized 
     ``to take further proof'' and ``to send for persons and 
     papers'' in its search for alternative evidence. Id. at 1564, 
     1566; see also 3 Hinds' Precedents Sec. Sec. 2444-45, at 902-
     04.
       In. some cases, the House declined to authorize a committee 
     to investigate impeachment with the aid of compulsory 
     process. In 1873, the House authorized the Judiciary 
     Committee ``to inquire whether anything'' in testimony 
     presented to a different committee implicating Vice President 
     Schuyler Colfax ``warrants articles of impeachment of any 
     officer of the United States not a member of this House, or 
     makes it proper that further investigation should be ordered 
     in his case.'' Cong. Globe, 42d Cong., 3d Sess. 1545 (1873); 
     see 3 Hinds' Precedents Sec. 2510, at 1016-17. No further 
     investigation was authorized. A similar sequence occurred in 
     1917 in the case of an impeachment resolution offered against 
     members of the Federal Reserve Board. See 54 Cong. Rec. 3126-
     30 (1917) (impeachment resolution); H.R. Rep. No. 64-1628, at 
     1 (1917) (noting that following the referral of the 
     impeachment resolution, the Committee had reviewed available 
     information and determined that no further proceedings were 
     warranted). In 1932, the House referred to the Judiciary 
     Committee a resolution calling for the investigation of the 
     possible impeachment of Secretary of the Treasury Andrew 
     Mellon. H.R. Res. 92, 72d Cong. (1932); see also 3 Deschler's 
     Precedents ch. 14, Sec. 14.1, at 2134-39. The following 
     month, the House approved a resolution discontinuing any 
     investigation of the charges. 75 Cong. Rec. 3850 (1932); see 
     also 3 Deschler's Precedents ch. 14, Sec. 14.2, at 2139-40.
       Most recently, in the 114th Congress, the House referred to 
     the Judiciary Committee resolutions concerning the 
     impeachment of the Commissioner of the Internal Revenue 
     Service, John Koskinen. See H.R. Res. 494, 114th Cong. 
     (2015); H.R. Res. 828, 114th Cong. (2016). Shortly after an 
     attempt to force a floor vote on one of the resolutions, 
     Koskinen voluntarily appeared before the committee at a 
     hearing. See Impeachment Articles Referred on John Koskinen 
     (Part III): Hearing Before the H. Comm. on the Judiciary, 
     114th Cong. 2 (2016). The ranking minority member, 
     Representative John Conyers, observed that, despite the 
     title, ``this is not an impeachment hearing'' because, 
     ``[a]ccording to parliamentarians of the House past and 
     present, the impeachment process does not begin until the 
     House actually votes to authorize this Committee to 
     investigate the charges.'' Id. at 3; see also id. at 30 
     (similar statement by Rep. Johnson). During the hearing, 
     Commissioner Koskinen offered to provide a list of supporting 
     witnesses who could be cross-examined ``if the Committee 
     decided it wanted to go to a full-scale impeachment process, 
     which I understand this is not.'' Id. at 45. Two months 
     later, one of the impeachment resolutions was briefly 
     addressed on the floor of the House, and again referred to 
     the Judiciary Committee, but without providing any 
     investigative authority. See 162 Cong. Rec. H7251-54 (daily 
     ed. Dec. 6, 2016). The committee never sought to compel the 
     appearance of Koskinen or any other witness, and the 
     committee does not appear to have taken any further action 
     before the Congress expired.
       In his 1978 book on presidential impeachment, former House 
     impeachment attorney John Labovitz observed that there were a 
     ``few exceptions,'' ``mostly in the 1860s and 1870s,'' to the 
     general rule that ``past impeachment investigations ha[ve] 
     been authorized by a specific resolution conferring subpoena 
     power.'' Labovitz, Presidential Impeachment at 182 & n.18. In 
     our review of the history, we have identified one case from 
     that era where a House committee commenced a legislative 
     oversight investigation and subsequently moved, without 
     separate authorization, to consider impeachment.\25\ But the 
     overwhelming historical practice to the contrary confirms the 
     Judiciary Committee's well-considered conclusions in 1974 and 
     1998 that a committee requires specific authorization from 
     the House before it may use compulsory process to investigate 
     for impeachment purposes.
     3.
       The House has followed the same practice in connection with 
     nearly all impeachment investigations involving federal 
     judges. Committees sometimes studied initial referrals, but 
     they waited for authorization from the full House before 
     conducting any formal impeachment investigation. Three cases 
     from the late 1980s departed from that pattern, but the House 
     has returned during the past three decades to the historical 
     baseline, repeatedly ensuring that the Judiciary Committee 
     had a proper delegation for each impeachment investigation.
       The practice of having the House authorize each specific 
     impeachment inquiry is reflected in the earliest impeachment 
     investigations involving judges. In 1804, the House 
     considered proposals to impeach two judges: Samuel Chase, an 
     associate justice of the Supreme Court, and Richard Peters, a 
     district judge. See 3 Hinds' Precedents Sec. 2342, at 711-16. 
     There was a ``lengthy debate'' about whether the evidence was 
     appropriate to warrant the institution of an inquiry. Id. at 
     712. The House then adopted a resolution appointing a select 
     committee ``to inquire into the official conduct'' of Chase 
     and Peters ``and to report'' the committee's ``opinion 
     whether'' either of the judges had ``so acted, in their 
     judicial capacity, as to require the interposition of the 
     constitutional power of this House.'' 13 Annals of Cong. 
     850, 875-76 (1804); 3 Hinds' Precedents Sec. 2342, at 715. 
     A few days later, another resolution ``authorized'' the 
     committee ``to send for persons, papers, and records.'' 13 
     Annals of Cong. at 877; see also 3 Hinds' Precedents 
     Sec. 2342, at 715. At the conclusion of its investigation, 
     the committee recommended that Chase, but not Peters, be 
     impeached. 3 Hinds' Precedents Sec. 2343, at 716. The 
     House thereafter agreed to a resolution impeaching Chase. 
     Id. at 717. Congress recessed before the Senate could act, 
     but, during the next Congress, the House appointed an 
     almost identical select committee, which was ``given no 
     power of investigation.'' Id. Sec. Sec. 2343 0944, at 717-
     18. The committee recommended revised articles of 
     impeachment against Chase, which were again adopted by the 
     House. Id. Sec. 2344, at 718-19. In 1808, the House again 
     separately authorized an investigation when it considered 
     whether Peter Bruin, a Mississippi territorial judge, 
     should be impeached for ``neglect of duty and drunkenness 
     on the bench.'' Id. Sec. 2487, at 983-84. A member of the 
     House objected ``that it would hardly be dignified for the 
     Congress to proceed to an impeachment'' based on the 
     territorial legislature's referral and proposed the

[[Page S361]]

     appointment of a committee ``to inquire into the propriety 
     of impeaching.'' Id. at 984; see 18 Annals of Cong. 2069 
     (1808). The House then passed a resolution forming a 
     committee to conduct an inquiry, which included the 
     ``power to send for persons, papers, and records'' but, 
     like most inquiries to follow, did not result in 
     impeachment. 18 Annals of Cong. at 2189; 3 Hinds' 
     Precedents Sec. 2487, at 984.
       Over the course of more than two centuries thereafter, 
     members of the House introduced resolutions to impeach, or to 
     investigate for potential impeachment, dozens more federal 
     judges, and the House continued, virtually without exception, 
     to provide an express authorization before any committee 
     proceeded to exercise investigative powers.\26\ In one 1874 
     case, the Judiciary Committee realized only after witnesses 
     had traveled from Arkansas that it could not find any 
     resolution granting it compulsory powers to investigate 
     previously referred charges against Judge William Story. See 
     2 Cong. Rec. 1825, 3438 (1874); 3 Hinds' Precedents 
     Sec. 2513, at 1023. In order to ``cure'' that ``defect,'' the 
     committee reported a privileged resolution to the floor of 
     the House that would grant the committee ``power to send for 
     persons and papers'' as part of the impeachment 
     investigation. 2 Cong. Rec. at 3438. The House promptly 
     agreed to the resolution, enabling the committee to 
     ``examine'' the witnesses that day. Id.
       In other cases, however, no full investigation ever 
     materialized. In 1803, John Pickering, a district judge, was 
     impeached, but the House voted to impeach him without 
     conducting any investigation at all, relying instead upon 
     documents supplied by President Jefferson. See 3 Hinds' 
     Precedents Sec. 2319, at 681-82; see also Lynn W. Turner, The 
     Impeachment of John Pickering, 54 Am. Hist. Rev. 485, 491 
     (1949). Sometimes, the House authorized only a preliminary 
     inquiry to determine whether an investigation would be 
     warranted. In 1908, for instance, the House asked the 
     Judiciary Committee to consider proposed articles impeaching 
     Judge Lebbeus Wilfley of the U.S. Court for China. In the 
     ensuing hearing, the Representative who had introduced the 
     resolution acknowledged that the committee was not 
     ``authorized to subpoena witnesses'' and had been authorized 
     to conduct only ``a preliminary examination,'' which was 
     ``not like an investigation ordinarily held by the House,'' 
     but was instead dedicated solely to determining ``whether you 
     believe it is a case that ought to be investigated at all.'' 
     \27\ In many other cases, it is apparent that--even when 
     impeachment resolutions had been referred to them--committees 
     conducted no formal investigation.\28\
       In 1970, in a rhetorical departure from well-established 
     practice, a subcommittee of the Judiciary Committee described 
     itself as investigating the impeachment of Justice William O. 
     Douglas based solely upon an impeachment resolution referred 
     to the Judiciary Committee. See 116 Cong. Rec. 11920, 11942 
     (1970); 3 Deschler's Precedents ch. 14, Sec. Sec. 14.14-
     14.16, at 2151-64; see also Labovitz, Presidential 
     Impeachment at 182 n.18 (noting that ``[t]he Douglas inquiry 
     was the first impeachment investigation in twenty-five years, 
     and deviation from the older procedural pattern was not 
     surprising''). Yet, the subcommittee did not resort to any 
     compulsory process during its inquiry, and it did not 
     recommend impeachment. 3 Deschler's Precedents ch. 14, 
     Sec. Sec. 14.15-14.16, at 2158-63. Accordingly, the committee 
     did not actually exercise any of the investigative powers of 
     the House.
       In the late 1980s, the House Judiciary Committee considered 
     the impeachment of three district-court judges without any 
     express authorization from the House: Walter Nixon, Alcee 
     Hastings, and Harry Claiborne. See In re Application of the 
     Comm. on the Judiciary, 2019 WL 5485221, at *26 (discussing 
     these investigations). All three judges had been criminally 
     prosecuted, and two had been convicted. See H.R. Rep. No. 
     101-36, at 12-13 (1989) (describing Nixon's prosecution and 
     conviction); H.R. Rep. No. 100-810, at 7-8, 29-31, 38-39 
     (1988) (describing Hastings's indictment and trial and the 
     subsequent decision to proceed with a judicial-misconduct 
     proceeding in lieu of another prosecution); H.R. Rep. No. 99-
     688, at 9, 17-20 (1986) (describing Claiborne's prosecution 
     and conviction). In the Claiborne inquiry, the committee does 
     not appear to have issued any subpoenas. See H.R. Rep. No. 
     99-688, at 4 (noting that the committee sent ``[i]nvitational 
     letters to all witnesses,'' who apparently cooperated to the 
     Committee's satisfaction). The committee did issue subpoenas 
     in the Nixon and Hastings investigations, yet no witness 
     appears to have objected on the ground that the committee 
     lacked jurisdiction to issue the subpoenas, and at least one 
     witness appears to have requested a subpoena.\29\ In those 
     two cases, though, the Judiciary Committee effectively 
     compelled production without any express authorization from 
     the House.\30\
       In the years after these outliers, the Judiciary Committee 
     returned to the practice of seeking specific authorization 
     from the House before conducting impeachment investigations. 
     Most notably, as discussed above, the Judiciary Committee 
     ``decided that it must receive authorization from the full 
     House before proceeding'' with an impeachment investigation 
     of President Clinton. H.R. Rep. No. 105-795, at 24 (emphasis 
     added). And the House has used the same practice with respect 
     to federal judges.\31\ Thus, in 2008, the House adopted a 
     resolution authorizing the Judiciary Committee to investigate 
     the impeachment of Judge G. Thomas Porteous, Jr., including 
     the grant of subpoena authority. See H.R. Rep. No. 111-427, 
     at 7 (2010); H.R. Res. 1448, 110th Cong. (2008); 154 Cong. 
     Rec. 19502 (2008). After the Congress expired, the House 
     in the next Congress adopted a new resolution re-
     authorizing the inquiry, again with subpoena authority. 
     See H.R. Res. 15, 111th Cong. (2009); 155 Cong. Rec. 568, 
     571 (2009). Several months later, another district judge, 
     Samuel Kent, pleaded guilty to obstruction of justice and 
     was sentenced to 35 months of incarceration. See H.R. Rep. 
     111-159, at 9-13 (2009). The House then adopted a 
     resolution directing the Judiciary Committee to 
     investigate impeachment, again specifically granting 
     subpoena authority. See id. at 13; H.R. Res. 424, 111th 
     Cong. (2009); 155 Cong. Rec. at 12211-13.
       Thus, the House's long-standing and nearly unvarying 
     practice with respect to judicial impeachment inquiries is 
     consistent with the conclusion that the power to investigate 
     in support of the House's ``sole Power of Impeachment,'' U.S. 
     Const. art. I, Sec. 2, cl. 5, may not be exercised by a 
     committee without an express delegation from the House. In 
     the cases of Judges Nixon and Hastings, the Judiciary 
     Committee did exercise compulsory authority despite the 
     absence of any delegation from the House. But insofar as no 
     party challenged the committee's authority at the time, and 
     no court addressed the matter, these historical outliers do 
     not undermine the broader constitutional principle. As the 
     Supreme Court observed in Noel Canning, ``when considered 
     against 200 years of settled practice,'' a ``few scattered 
     examples'' are rightly regarded ``as anomalies.'' 573 U.S. at 
     538. They do not call into question the soundness of the 
     House's otherwise consistent historical practice, much less 
     the constitutional requirement that a committee exercise the 
     constitutional powers of the House only with an express 
     delegation from the House itself.

                                  III.

       Having concluded that a House committee may not conduct an 
     impeachment investigation without a delegation of authority, 
     we next consider whether the House provided such a delegation 
     to the Foreign Affairs Committee or to the other committees 
     that issued subpoenas pursuant to the asserted impeachment 
     inquiry. During the five weeks between the Speaker's 
     announcement on September 24 and the adoption of Resolution 
     660 on October 31, the committees issued numerous 
     impeachment-related subpoenas. See supra note 9. We therefore 
     provided advice during that period about whether any of the 
     committees had authority to issue those subpoenas. Because 
     the House had not adopted an impeachment resolution, the 
     answer to that question turned on whether the committees 
     could issue those subpoenas based upon any preexisting 
     subpoena authority.
       In justifying the subpoenas, the Foreign Affairs Committee 
     and other committees pointed to the resolution adopting the 
     Rules of the House of Representatives, which establish the 
     committees and authorize investigations for matters within 
     their jurisdiction. The committees claimed that Rule XI 
     confers authority to issue subpoenas in connection with an 
     impeachment investigation. Although the House has expanded 
     its committees' authority in recent decades, the House Rules 
     continue to reflect the long-established distinction between 
     legislative and non-legislative investigative powers. Those 
     rules confer legislative oversight jurisdiction on committees 
     and authorize the issuance of subpoenas to that end, but they 
     do not grant authority to investigate for impeachment 
     purposes. While the House committees could have sought some 
     information relating to the same subjects in the exercise of 
     their legislative oversight authority, the subpoenas they 
     purported to issue ``pursuant to the House of 
     Representatives' impeachment inquiry'' were not in support of 
     such oversight. We therefore conclude that they were 
     unauthorized.


                                   a.

       The standing committees of the House trace their general 
     subpoena powers back to the House Rules, which the 116th 
     Congress adopted by formal resolution. See H.R. Res. 6, 116th 
     Cong. (2019). The House Rules are more than 60,000 words 
     long, but they do not include the word ``impeachment.'' The 
     Rules' silence on that topic is particularly notable when 
     contrasted with the Senate, which has adopted specific 
     ``Rules of Procedure and Practice'' for impeachment trials. 
     S. Res. 479, 99th Cong. (1986).\32\ The most obvious 
     conclusion to draw from that silence is that the current 
     House, like its predecessors, retained impeachment authority 
     at the level of the full House, subject to potential 
     delegations in resolutions tailored for that purpose.
       Rule XI of the Rules of the House affirmatively authorizes 
     committees to issue subpoenas, but only for matters within 
     their legislative jurisdiction. The provision has been a part 
     of the House Rules since 1975. See H.R. Res. 988, 93d Cong. 
     Sec. 301 (1974). Clause 2(m)(1) of Rule XI vests each 
     committee with the authority to issue subpoenas ``[f]or the 
     purpose of carrying out any of its functions and duties under 
     this rule and rule X (including any matters referred to it 
     under clause 2 of rule XII).'' Rule XI, cl. 2(m)(1); see also 
     Rule X, cl. 11(d)(1) (making clause 2 of Rule XI applicable 
     to HPSCI). The committees therefore have subpoena power to 
     carry out their authorities under three rules: Rule X, Rule 
     XI, and clause 2 of Rule XII.
       Rule X does not provide any committee with jurisdiction 
     over impeachment. Rule X establishes the ``standing 
     committees'' of

[[Page S362]]

     the House and vests them with ``their legislative 
     jurisdictions.'' Rule X, cl. 1. The jurisdiction of each 
     committee varies in subject matter and scope. While the 
     Committee on Ethics, for example, has jurisdiction over only 
     ``[t]he Code of Official Conduct'' (Rule X, cl. 1(g)), the 
     jurisdiction of the Foreign Affairs Committee spans seventeen 
     subjects, including ``[r]elations of the United States with 
     foreign nations generally,'' ``[i]ntervention abroad and 
     declarations of war,'' and ``[t]he American National Red 
     Cross'' (Rule X, cl. 1(i)(1), (9), (15)). The rule likewise 
     spells out the jurisdiction of the Committee on Oversight and 
     Reform (Rule X, cl. 1(n), cl. 3(i)), and the jurisdiction of 
     the Judiciary Committee (Rule X, cl. 1(l)). Clause 11 of Rule 
     X establishes HPSCI and vests it with jurisdiction over 
     ``[t]he Central Intelligence Agency, the Director of National 
     Intelligence, and the National Intelligence Program'' and 
     over ``[i]ntelligence and intelligence-related activities of 
     all other departments and agencies.'' Rule X, cl. 11(a)(1), 
     (b)(1)(A)-(B).
       The text of Rule X confirms that it addresses the 
     legislative jurisdiction of the standing committees. After 
     defining each standing committee's subject-matter 
     jurisdiction, the Rule provides that ``[t]he various standing 
     committees shall have general oversight responsibilities'' to 
     assist the House in its analysis of ``the application, 
     administration, execution, and effectiveness of Federal 
     laws'' and of the ``conditions and circumstances that may 
     indicate the necessity or desirability of enacting new or 
     additional legislation,'' as well as to assist the House in 
     its ``formulation, consideration, and enactment of changes in 
     Federal laws, and of such additional legislation as may be 
     necessary or appropriate.'' Rule X, cl. 2(a)(1)-(2). The 
     committees are to conduct oversight ``on a continuing basis'' 
     ``to determine whether laws and programs addressing subjects 
     within the jurisdiction of a committee'' are implemented as 
     Congress intends ``and whether they should be continued, 
     curtailed, or eliminated.'' Rule X, cl. 2(b)(1). Those are 
     all functions traditionally associated with legislative 
     oversight, not the separate power of impeachment. See supra 
     Part II.A. Clause 3 of Rule X further articulates ``[s]pecial 
     oversight functions'' with respect to particular subjects for 
     certain committees; for example, the Committee on Foreign 
     Affairs ``shall review and study on a continuing basis laws, 
     programs, and Government activities relating to .  .  . 
     intelligence activities relating to foreign policy,'' Rule X, 
     cl. 3(f). And clause 4 addresses ``[a]dditional functions of 
     committees,'' including functions related to the review of 
     appropriations and the special authorities of the Committee 
     on Oversight and Reform, Rule X, cl. 4(a)(1), (c)(1). But 
     none of the ``[s]pecial oversight'' or ``[a]dditional'' 
     functions specified in clauses 3 and 4 includes any reference 
     to the House's impeachment power.
       The powers of HPSCI are addressed in clause 11 of Rule X. 
     Unlike the standing committees, HPSCI is not given 
     ``[g]eneral oversight responsibilities'' in clause 2. But 
     clause 3 gives it the ``[s]pecial oversight functions'' of 
     ``review[ing] and study[ing] on a continuing basis laws, 
     programs, and activities of the intelligence community'' and 
     of ``review[ing] and study[ing] .  .  . the sources and 
     methods of'' specified entities that engage in intelligence 
     activities. Rule X, cl. 3(m). And clause 11 further provides 
     that proposed legislation about intelligence activities will 
     be referred to HPSCI and that HPSCI shall report to the House 
     ``on the nature and extent of the intelligence and 
     intelligence-related activities of the various departments 
     and agencies of the United States.'' Rule X, cl. 11(b)(1), 
     (c)(1); see also H.R. Res. 658, 95th Cong. Sec. 1 (1977) 
     (resolution establishing HPSCI, explaining its purpose as 
     ``provid[ing] vigilant legislative oversight over the 
     intelligence and intelligence-related activities of the 
     United States'' (emphasis added)). Again, those powers sound 
     in legislative oversight, and nothing in the Rules suggests 
     that HPSCI has any generic delegation of the separate power 
     of impeachment.
       Consistent with the foregoing textual analysis, Rule X has 
     been seen as conferring legislative oversight authority on 
     the House's committees, without any suggestion that 
     impeachment authorities are somehow included therein. The 
     Congressional Research Service describes Rule X as 
     ``contain[ing] the legislative and oversight jurisdiction of 
     each standing committee, several clauses on committee 
     procedures and operations, and a clause specifically 
     addressing the jurisdiction and operation of the Permanent 
     Select Committee on Intelligence.'' Michael L. Koempel & Judy 
     Schneider, Cong. Research Serv., R41605, House Standing 
     Committees' Rules on Legislative Activities: Analysis of 
     Rules in Effect in the 114th Congress 2 (Oct. 11, 2016); see 
     also Dolan, Congressional Oversight Manual at 25 
     (distinguishing a committee inquiry with ``a legislative 
     purpose'' from inquiries conducted under ``some other 
     constitutional power of Congress, such as the authority'' to 
     ``conduct impeachment proceedings''). In the chapter of 
     Deschler's Precedents devoted to explaining the 
     ``[i]nvestigations and [i]nquiries'' by the House and its 
     committees, the Parliamentarian repeatedly notes that 
     impeachment investigations and other non-legislative powers 
     are discussed elsewhere. See 4 Deschler's Precedents ch. 15, 
     Sec. 1, at 2283; id. Sec. 14, at 2385 n.12; id. Sec. 16, at 
     2403 & n.4.
       Rule X concerns only legislative oversight, and Rule XI 
     does not expand the committees' subpoena authority any 
     further. That rule rests upon the jurisdiction granted in 
     Rule X. See Rule XI, cl. 1(b)(1) (``Each committee may 
     conduct at any time such investigations and studies as it 
     considers necessary or appropriate in the exercise of its 
     responsibilities under rule X.''). Nor does Rule XII confer 
     any additional jurisdiction. Clause 2(a) states that ``[t]he 
     Speaker shall refer each bill, resolution, or other matter 
     that relates to a subject listed under a standing committee 
     named in clause 1 of rule X[.]'' Rule XII, cl. 2(a). The 
     Speaker's referral authority under Rule XII is thus limited 
     to matters within a committee's Rule X legislative 
     jurisdiction. See 18 Deschler's Precedents app. at 578 (``All 
     committees were empowered by actual language of the Speaker's 
     referral to consider only `such provisions of the measure as 
     fall within their respective jurisdictions under Rule X.'''). 
     Accordingly, the Speaker may not expand the jurisdiction of a 
     committee by referring a bill or resolution falling outside 
     the committee's Rule X authority.\33\
       In reporting Resolution 660 to the House, the Rules 
     Committee expressed the view that clause 2(m) of Rule XI gave 
     standing committees the authority to issue subpoenas in 
     support of impeachment inquiries. See H.R. Rep. No. 116-266, 
     at 18 (2019). But the committee did not explain which terms 
     of the rule provide such authority. To the contrary, the 
     committee simply asserted that the rule granted such 
     authority and that the text of Resolution 660 departed from 
     its predecessors on account of amendments to clause 2(m) that 
     were adopted after the ``Clinton and Nixon impeachment 
     inquiry resolutions.'' Id. Yet clause 2(m) of Rule XI was 
     adopted two decades before the Clinton inquiry.\34\ Even with 
     that authority in place, the Judiciary Committee recognized 
     in 1998 that it ``must receive authorization from the full 
     House before proceeding'' to investigate President Clinton 
     for impeachment purposes. H.R. Rep. No. 105-795, at 24 
     (emphasis added). And, even before Rule XI was adopted, the 
     House had conferred on the Judiciary Committee a materially 
     similar form of investigative authority (including subpoena 
     power) in 1973.\35\ The Judiciary Committee nevertheless 
     recognized that those subpoena powers did not authorize it to 
     conduct an impeachment inquiry about President Nixon. In 
     other words, the Rules Committee's recent interpretation of 
     clause 2(m) (which it did not explain in its report) cannot 
     be reconciled with the Judiciary Committee's well-reasoned 
     conclusion, in both 1974 and 1998, that Rule XI (and its 
     materially similar predecessor) do not confer any standing 
     authority to conduct an impeachment investigation.
       In modern practice, the Speaker has referred proposed 
     resolutions calling for the impeachment of a civil officer to 
     the Judiciary Committee. See Jefferson's Manual Sec. 605, at 
     324. Consistent with this practice, the Speaker referred the 
     Sherman resolution (H.R. Res. 13, 116th Cong.) to the 
     Judiciary Committee, because it called for the impeachment of 
     President Trump. Yet the referral itself did not grant 
     authority to conduct an impeachment investigation. House 
     committees have regularly received referrals and conducted 
     preliminary inquiries, without compulsory process, for the 
     purpose of determining whether to recommend that the House 
     open a formal impeachment investigation. See supra Part II.C. 
     Should a committee determine that a formal inquiry is 
     warranted, then the committee recommends that the House adopt 
     a resolution that authorizes such an investigation, confers 
     subpoena power, and provides special process to the target of 
     the investigation. The Judiciary Committee followed precisely 
     that procedure in connection with the impeachment 
     investigations of Presidents Nixon and Clinton, among many 
     others. By referring an impeachment resolution to the House 
     Judiciary Committee, the Speaker did not expand that 
     committee's subpoena authority to cover a formal impeachment 
     investigation. In any event, no impeachment resolution was 
     ever referred to the Foreign Affairs Committee, HPSCI, or the 
     Committee on Oversight and Reform. Rule XII thus could not 
     provide any authority to those committees in support of the 
     impeachment-related subpoenas issued before October 31.
       Accordingly, when those subpoenas were issued, the House 
     Rules did not provide authority to any of those committees to 
     issue subpoenas in connection with potential impeachment. In 
     reaching this conclusion, we do not question the broad 
     authority of the House of Representatives to determine how 
     and when to conduct its business. See U.S. Const. art. I, 
     Sec. 5, cl. 2. As the Supreme Court has recognized, ```all 
     matters of method are open to the determination''' of the 
     House, ``as long as there is `a reasonable relation between 
     the mode or method of proceeding established by the rule and 
     the result which is sought to be attained,' and the rule does 
     not `ignore constitutional restraints or violate fundamental 
     rights.''' Noel Canning, 573 U.S. at 551 (quoting United 
     States v. Ballin, 144 U.S. 1, 5 (1892)). The question, 
     however, is not ``what rules Congress may establish for its 
     own governance,'' but ``rather what rules the House has 
     established and whether they have been followed.'' 
     Christoffel v. United States, 338 U.S. 84, 88-89 (1949); see 
     also Yellin v. United States, 374 U.S. 109, 121 (1963) 
     (stating that a litigant ``is at least entitled to have the 
     Committee follow its rules and give him consideration 
     according to the standards it has adopted in'' the relevant 
     rule); United States v. Smith, 286 U.S. 6, 33 (1932) (``As 
     the construction to be given to the rules affects persons 
     other than members of the Senate,

[[Page S363]]

     the question presented is of necessity a judicial one.''). 
     Statements by the Speaker or by committee chairmen are not 
     statements of the House itself. Cf. Noel Canning, 573 U.S. at 
     552-53 (relying on statements and actions of the Senate 
     itself, as reflected in the Journal of the Senate and the 
     Congressional Record, to determine when the Senate was ``in 
     session''). Our conclusion here turned upon nothing more, and 
     nothing less, than the rules and resolutions that had been 
     adopted by a majority vote of the full House.\36\
       The text of those provisions determined whether the House 
     had delegated the necessary authority. See id. at 552 
     (``[O]ur deference to the Senate cannot be absolute. When the 
     Senate is without the capacity to act, under its own rules, 
     it is not in session even if it so declares.''). Thus, the 
     Supreme Court has repeatedly made clear that a target of the 
     House's compulsory process may question whether a House 
     resolution has actually conferred the necessary powers upon a 
     committee, because the committee's ``right to exact testimony 
     and to call for the production of documents must be found in 
     [the resolution's] language.'' Rumely, 345 U.S. at 44; see 
     also Watkins, 354 U.S. at 201. In Rumely, the Court expressly 
     rejected the argument that the House had confirmed the 
     committee's jurisdiction by adopting a resolution that merely 
     held the witness in contempt after the fact. As the Court 
     explained, what was said ``after the controversy had arisen 
     regarding the scope of the resolution .  .  . had the usual 
     infirmity of post litem motam, self-serving declarations.'' 
     345 U.S. at 48. In other words, even a vote of the full House 
     could not ``enlarge[]'' a committee's authority after the 
     fact for purposes of finding that a witness had failed to 
     comply with the obligations imposed by the subpoena. Id.
       Here, the House committees claiming to investigate 
     impeachment issued subpoenas before they had received any 
     actual delegation of impeachment-related authority from the 
     House. Before October 31, the committees relied solely upon 
     statements of the Speaker, the committee chairmen, and the 
     Judiciary Committee, all of which merely asserted that one or 
     more House committees had already been conducting a formal 
     impeachment inquiry. There was, however, no House resolution 
     actually delegating such authority to any committee, let 
     alone one that did so with ``sufficient particularity'' to 
     compel witnesses to respond. Watkins, 354 U.S. at 201; cf. 
     Gojack v. United States, 384 U.S. 702, 716-17 (1966). At the 
     opening of this Congress, the House had not chosen to confer 
     investigative authority over impeachment upon any committee, 
     and therefore, no House committee had authority to compel the 
     production of documents or testimony in furtherance of an 
     impeachment inquiry that it was not authorized to conduct.


                                   b.

       Lacking a delegation from the House, the committees could 
     not compel the production of documents or the testimony of 
     witnesses for purposes of an impeachment inquiry. Because the 
     first impeachment-related subpoena the September 27 subpoena 
     from the Foreign Affairs Committee--rested entirely upon the 
     purported impeachment inquiry, see Three Chairmen's Letter, 
     supra note 2, at 1, it was not enforceable. See, e.g., 
     Rumely, 345 U.S. at 44. Perhaps recognizing this infirmity, 
     the committee chairmen invoked not merely the impeachment 
     inquiry in connection with subsequent impeachment-related 
     subpoenas but also the committees' ``oversight and 
     legislative jurisdiction.'' See supra note 9 and accompanying 
     text. That assertion of dual authorities presented the 
     question whether the committees could leverage their 
     oversight jurisdiction to require the production of documents 
     and testimony that the committees avowedly intended to use 
     for an unauthorized impeachment inquiry. We advised that, 
     under the circumstances of these subpoenas, the committees 
     could not do so.
       Any congressional inquiry ``must be related to, and in 
     furtherance of, a legitimate task of the Congress.'' Watkins, 
     354 U.S. at 187. The Executive Branch need not presume that 
     such a purpose exists or accept a ``makeweight'' assertion of 
     legislative jurisdiction. Mazars USA, 940 F.3d at 725-26, 
     727; see also Shelton v. United States, 404 F.2d 1292, 1297 
     (D.C. Cir. 1968) (``In deciding whether the purpose is within 
     the legislative function, the mere assertion of a need to 
     consider `remedial legislation' may not alone justify an 
     investigation accompanied with compulsory process[.]''). 
     Indeed, ``an assertion from a committee chairman may not 
     prevent the Executive from confirming the legitimacy of an 
     investigative request.'' Congressional Committee's Request 
     for the President's Tax Returns Under 26 U.S.C. Sec. 6103(f), 
     43 Op. O.L.C. _, at *20 (June 13, 2019). To the contrary, ``a 
     threshold inquiry that should be made upon receipt of any 
     congressional request for information is whether the request 
     is supported by any legitimate legislative purpose.'' 
     Response to Congressional Requests for Information Regarding 
     Decisions Made Under the Independent Counsel Act, 10 Op. 
     O.L.C. 68, 74 (1986); see also Congressional Requests for 
     Confidential Executive Branch Information, 13 Op. O.L.C. 153, 
     159 (1989) (recognizing that the constitutionally mandated 
     accommodation process ``requires that each branch explain to 
     the other why it believes its needs to be legitimate'').
       Here, the committee chairmen made clear upon issuing the 
     subpoenas that the committees were interested in the 
     requested materials to support an investigation into the 
     potential impeachment of the President, not to uncover 
     information necessary for potential legislation within their 
     respective areas of legislative jurisdiction. In marked 
     contrast with routine oversight, each of the subpoenas was 
     accompanied by a letter signed by the chairs of three 
     different committees, who transmitted a subpoena ``[p]ursuant 
     to the House of Representatives' impeachment inquiry'' and 
     recited that the documents would ``be collected as part of 
     the House's impeachment inquiry,'' and that they would be 
     ``shared among the Committees, as well as with the Committee 
     on the Judiciary as appropriate.'' See supra note 9 and 
     accompanying text. Apart from their token invocations of 
     ``oversight and legislative jurisdiction,'' the letters 
     offered no hint of any legislative purpose. The committee 
     chairmen were therefore seeking to do precisely what they 
     said--compel the production of information to further an 
     impeachment inquiry.
       In reaching this conclusion, we do not foreclose the 
     possibility that the Foreign Affairs Committee or the other 
     committees could have issued similar subpoenas in the bona 
     fide exercise of their legislative oversight jurisdiction, in 
     which event the requests would have been evaluated consistent 
     with the long-standing confidentiality interests of the 
     Executive Branch. See Watkins, 354 U.S. at 187 (recognizing 
     that Congress's general investigative authority ``comprehends 
     probes into departments of the Federal Government to expose 
     corruption, inefficiency or waste''); McGrain, 273 U.S. at 
     179-80 (observing that it is not ``a valid objection to the 
     investigation that it might possibly disclose crime or 
     wrongdoing on [the Attorney General's] part''). Should the 
     Foreign Affairs Committee, or another committee, articulate a 
     legitimate oversight purpose for a future information 
     request, the Executive Branch would assess that request as 
     part of the constitutionally required accommodation process. 
     But the Executive Branch was not confronted with that 
     situation. The committee chairmen unequivocally attempted to 
     conduct an impeachment inquiry into the President's actions, 
     without the House, which has the ``sole Power of 
     Impeachment,'' having authorized such an investigation. 
     Absent such an authorization, the committee chairs' passing 
     mention of ``oversight and legislative jurisdiction'' did not 
     cure that fundamental defect.


                                   c.

       We next address whether the House ratified any of the 
     previous committee subpoenas when it adopted Resolution 660 
     on October 31, 2019--after weeks of objections from the 
     Executive Branch and many members of Congress to the 
     committees' efforts to conduct an unauthorized impeachment 
     inquiry. Resolution 660 provides that six committees of the 
     House ``are directed to continue their ongoing investigations 
     as part of the existing House of Representatives inquiry into 
     whether sufficient grounds exist for the House of 
     Representatives to exercise its Constitutional power to 
     impeach Donald John Trump, President of the United States of 
     America.'' Resolution 660, Sec. 1. The resolution further 
     prescribes certain procedures by which HPSCI and the 
     Judiciary Committee may conduct hearings in connection with 
     the investigation defined by that resolution.
       Resolution 660 does not speak at all to the committees' 
     past actions or seek to ratify any subpoena previously issued 
     by the House committees. See Trump v. Mazars USA, LLP, 941 
     F.3d 1180, 1182 (D.C. Cir. 2019) (Rao, J., dissenting from 
     the denial of rehearing en banc); see also Exclusion of 
     Agency Counsel from Congressional Depositions in the 
     Impeachment Context, 43 Op. O.L.C. _, at *5 (Nov. 1, 2019). 
     The resolution ``direct[s]'' HPSCI and other committees to 
     ``continue'' their investigations, and the Rules Committee 
     apparently assumed, incorrectly in our view, that earlier 
     subpoenas were legally valid. See H.R. Rep. No. 116-266, at 3 
     (``All subpoenas to the Executive Branch remain in full 
     force.''). But the resolution's operative language does not 
     address any previously issued subpoenas or provide the 
     imprimatur of the House to give those subpoenas legal force.
       And the House knows how to ratify existing subpoenas when 
     it chooses to do so.\37\ On July 24, 2019, the House adopted 
     a resolution that expressly ``ratif[ied] and affirm[ed] all 
     current and future investigations, as well as all subpoenas 
     previously issued or to be issued in the future,'' related to 
     certain enumerated subjects within the jurisdiction of 
     standing or select committees of the House ``as established 
     by the Constitution of the United States and rules X and XI 
     of the Rules of the House of Representatives.'' H.R. Res. 
     507, 116th Cong. Sec. 1 (2019) (emphasis added). There, as 
     here, the House acted in response to questions regarding 
     ``the validity of .  .  . [committee] investigations and 
     subpoenas.'' Id. pmbl. Despite that recent model, Resolution 
     660 contains no comparable language seeking to ratify 
     previously issued subpoenas. The resolution directs certain 
     committees to ``continue'' investigations, and it specifies 
     procedures to govern future hearings, but nothing in the 
     resolution looks backward to actions previously taken. 
     Accordingly, Resolution 660 did not ratify or otherwise 
     authorize the impeachment-related subpoenas issued before 
     October 31, which therefore still had no compulsory effect 
     on their recipients.

                                  IV.

       Finally, we address some of the consequences that followed 
     from our conclusion that the committees' pre-October 31 
     impeachment-related subpoenas were unauthorized. First, 
     because the subpoenas exceeded

[[Page S364]]

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

                                   V.

       For the reasons set forth above, we conclude that the House 
     must expressly authorize a committee to conduct an 
     impeachment investigation and to use compulsory process in 
     that investigation before the committee may compel the 
     production of documents or testimony in support of the 
     House's ``sole Power of Impeachment.'' U.S. Const. art. I, 
     Sec. 2, cl. 5. The House had not authorized such an 
     investigation in connection with the impeachment-related 
     subpoenas issued before October 31, 2019, and the subpoenas 
     therefore had no compulsory effect. The House's adoption of 
     Resolution 660 did not alter the legal status of those 
     subpoenas, because the resolution did not ratify them or 
     otherwise address their terms.
       Please let us know if we may be of further assistance.
                                                  Steven A. Engel,
                                       Assistant Attorney General.
       1. Nancy Pelosi, Speaker of the House, Press Release: 
     Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 
     2019), www.speaker.gov/newsroom/92419-0 (``Pelosi Press 
     Release'').
       2. Letter for Michael R. Pompeo, Secretary of State, from 
     Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S. 
     House of Representatives, Adam Schiff, Chairman, Permanent 
     Select Committee on Intelligence, U.S. House of 
     Representatives, and Elijah E. Cummings, Chairman, Committee 
     on Oversight & Reform, U.S. House of Representatives at 1 
     (Sept. 27, 2019) (``Three Chairmen's Letter'').
       3. Although volume 3 of Deschler's Precedents was published 
     in 1979, our citations of Deschler's Precedents use the 
     continuously paginated version that is available at 
     www.govinfo.gov/collection/precedents-of-the-house.
       4. Impeachment Articles Referred on John Koskinen (Part 
     III): Hearing Before the H. Comm. on the Judiciary, 114th 
     Cong. 3 (2016).
       5. This opinion memorializes the advice we gave about 
     subpoenas issued before October 31. We separately addressed 
     some subpoenas issued after that date. See, e.g., Letter for 
     Pat A. Cipollone, Counsel to the President, from Steven A. 
     Engel, Assistant Attorney General, Office of Legal Counsel 
     (Nov. 7, 2019) (subpoena to Mick Mulvaney); Letter for Pat A. 
     Cipollone, Counsel to the President, from Steven A. Engel, 
     Assistant Attorney General, Office of Legal Counsel (Nov. 3, 
     2019) (subpoena to John Eisenberg); Exclusion of Agency 
     Counsel from Congressional Depositions in the Impeachment 
     Context, 43 Op. O.L.C. _ (Nov. 1, 2019).
       6. U.S. House of Representatives Committee on the 
     Judiciary, Press Release: House Judiciary Committee Unveils 
     Investigation into Threats Against the Rule of Law (Mar. 4, 
     2019), judiciary.house.gov/news/press-releases/house-
     judiciary-committee-unveils-investigation-threats-against-
     rule-law; see also Letter for the White House, c/o Pat 
     Cipollone, from Jerrold Nadler, Chairman, Committee on the 
     Judiciary, U.S. House of Representatives (Mar. 4, 2019).
       7. On June 11, 2019, the full House adopted Resolution 430. 
     Its first two clauses authorized the Judiciary Committee to 
     file a lawsuit to enforce subpoenas against Attorney General 
     William Barr and former White House Counsel Donald McGahn and 
     purported to authorize the Bipartisan Legal Advisory Group to 
     approve future litigation. See H.R. Res. 430, 116th Cong. 
     (2019). The next clause of the resolution then stated that, 
     ``in connection with any judicial proceeding brought under 
     the first or second resolving clauses, the chair of any 
     standing or permanent select committee exercising authority 
     thereunder has any and all necessary authority under Article 
     I of the Constitution.'' Id. The resolution did not mention 
     ``impeachment'' and, by its terms, authorized actions only in 
     connection with the litigation authorized ``under the first 
     or second resolving clauses.'' On the same day that the House 
     adopted Resolution 430, Speaker Pelosi stated that the 
     House's Democratic caucus was

[[Page S365]]

     ``not even close'' to an impeachment inquiry. Rep. Nancy 
     Pelosi (D-CA) Continues Resisting Impeachment Inquiry, CNN 
     (June 11, 2019), transcripts.cnn.com/TRANSCRIPTS/1906/11/
     cnr.04 html.
       8. While the House has delegated to the Bipartisan Legal 
     Advisory Group the ability to ``articulate[ ] the 
     institutional position of '' the House, it has done so only 
     for purposes of ``litigation matters.'' H.R. Rule II, cl. 
     8(b). Therefore, neither the group, nor the House counsel 
     implementing that group's directions, could assert the 
     House's authority in connection with an impeachment 
     investigation, which is not a litigation matter.
       9. E.g., Letter for John Michael Mulvaney, Acting Chief of 
     Staff to the President, from Elijah E. Cummings, Chairman, 
     Committee on Oversight & Reform, U.S. House of 
     Representatives, Adam B. Schiff, Chairman, Permanent Select 
     Committee on Intelligence, U.S. House of Representatives, and 
     Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S. 
     House of Representatives at 1 (Oct. 4, 2019); Letter for Mark 
     T. Esper, Secretary of Defense, from Adam B. Schiff, 
     Chairman, Permanent Select Committee on Intelligence, U.S. 
     House of Representatives, Eliot L. Engel, Chairman, Committee 
     on Foreign Affairs, U.S. House of Representatives, and Elijah 
     E. Cummings, Chairman, Committee on Oversight & Reform, U.S. 
     House of Representatives at 1 (Oct. 7, 2019); Letter for 
     Gordon Sondland, U.S. Ambassador to the European Union, from 
     Adam B. Schiff, Chairman, Permanent Select Committee on 
     Intelligence, U.S. House of Representatives, Elijah E. 
     Cummings, Chairman, Committee on Oversight & Reform, U.S. 
     House of Representatives, and Eliot L. Engel, Chairman, 
     Committee on Foreign Affairs, U.S. House of Representatives 
     at 1 (Oct. 8, 2019); Letter for James Richard ``Rick'' Perry, 
     Secretary of Energy, from Eliot L. Engel, Chairman, Committee 
     on Foreign Affairs, U.S. House of Representatives, Adam B. 
     Schiff, Chairman, Permanent Select Committee on Intelligence, 
     U.S. House of Representatives, and Elijah E. Cummings, 
     Chairman, Committee on Oversight & Reform, U.S. House of 
     Representatives at 1 (Oct. 10, 2019).
       10. Letter for Nancy Pelosi, Speaker, U.S. House of 
     Representatives, et al., from Pat A. Cipollone, Counsel to 
     the President at 2-3 (Oct. 8, 2019).
       11. See Letter for Nancy Pelosi, Speaker, U.S. House of 
     Representatives, from Kevin McCarthy, Republican Leader, U.S. 
     House of Representatives at 1 & n.1 (Oct. 3, 2019); Mem. 
     Amicus Curiae of Ranking Member Doug Collins in Support of 
     Denial at 5-21, In re Application of the Comm. on the 
     Judiciary (D.D.C. Oct. 3, 2019).
       12. The House Judiciary Committee permitted President 
     Nixon's counsel to submit and respond to evidence, to request 
     to call witnesses, to attend hearings and examinations, to 
     object to the examination of witnesses and the admissibility 
     of testimony, and to question witnesses. See H.R. Rep. No. 
     93-1305, at 8-9 (1974); 3 Deschler's Precedents ch. 14, 
     Sec. 6.5, at 2045-47. Later, President Clinton and his 
     counsel were similarly ``invited to attend all executive 
     session and open committee hearings,'' at which they were 
     permitted to ``cross examine witnesses,'' ``make objections 
     regarding the pertinency of evidence,'' ``suggest that the 
     Committee receive additional evidence,'' and ``respond to the 
     evidence adduced by the Committee.'' H.R. Rep. No. 105-795, 
     at 25-26; see also 18 Deschler's Precedents app. at 549 
     (2013) (noting that, during the Clinton impeachment 
     investigation, the House made a ``deliberate attempt to 
     mirror [the] documented precedents and proceedings'' of the 
     Nixon investigation). In a departure from the Nixon and 
     Clinton precedents, the House committees did not provide 
     President Trump with any right to attend, participate in, or 
     cross-examine witnesses in connection with the impeachment-
     related depositions conducted by the three committees before 
     October 31. Resolution 660 similarly did not provide any such 
     rights with respect to any of the public hearings conducted 
     by HPSCI, limiting the President's opportunity to participate 
     to the Judiciary Committee, which did not itself participate 
     in developing the investigative record upon which the 
     articles of impeachment were premised. See H.R. Res. 660, 
     116th Cong. Sec. 4(a); 165 Cong. Rec. E1357 (daily ed. Oct. 
     29, 2019) (``Impeachment Inquiry Procedures in the Committee 
     on the Judiciary'').
       13. In denying the congressional request before him, 
     President Polk suggested, in the equivalent of dictum, that, 
     during an impeachment inquiry, ``all the archives and papers 
     of the Executive departments, public or private, would be 
     subject to the inspection and control of a committee of their 
     body.'' Cong. Globe, 29th Cong., 1st Sess. 698 (1846). That 
     statement, however, dramatically understates the degree to 
     which executive privilege remains available during an 
     impeachment investigation to protect confidentiality 
     interests necessary to preserve the essential functions of 
     the Executive Branch. See Exclusion of Agency Counsel from 
     Congressional Depositions in the Impeachment Context, 43 Op. 
     O.L.C. _, at *3 & n.1 (Nov. 1, 2019). In a prior opinion, 
     this Office viewed Polk as acknowledging the continued 
     availability of executive privilege, because we read Polk's 
     preceding sentence as ``indicat[ing]'' that, even in the 
     impeachment context, ``the Executive branch `would adopt all 
     wise precautions to prevent the exposure of all such matters 
     the publication of which might injuriously affect the public 
     interest, except so far as this might be necessary to 
     accomplish the great ends of public justice.' '' Memorandum 
     for Elliot Richardson, Attorney General, from Robert G. 
     Dixon, Jr., Assistant Attorney General, Office of Legal 
     Counsel, Re: Presidential Immunity from Coercive 
     Congressional Demands for Information at 22-23 (July 24, 
     1973) (quoting Polk's letter).
       14. See, e.g., Cong. Globe, 29th Cong., 1st Sess. 636 
     (1846) (statement of Rep. Ingersoll) (``Whether . . . 
     [Webster's] offences will be deemed impeachable misdemeanors 
     in office, conviction for which might remove him from the 
     Senate, and disqualify him to hold any office of honor, 
     trust, or profit, under the United States, will remain to be 
     considered.''); Todd Garvey, The Webster and Ingersoll 
     Investigations, in Morton Rosenberg, The Constitution 
     Project, When Congress Comes Calling 289 (2017).
       15. When the House first considered impeachment in 1796, 
     Attorney General Charles Lee advised that, ``before an 
     impeachment is sent to the Senate, witnesses must be 
     examined, in solemn form, respecting the charges, before a 
     committee of the House of Representatives, to be appointed 
     for that purpose.'' Letter for the House of Representatives 
     from Charles Lee, Attorney General, Re: Inquiry into the 
     Official Conduct of a Judge of the Supreme Court of the 
     Northwestern Territory (May 9, 1796), reprinted in 1 Am. 
     State Papers: Misc. 151 (Walter Lowrie & Walter S. Franklin 
     eds., 1834). Because the charges of misconduct concerned the 
     actions of George Turner, a territorial judge, and the 
     witnesses were located in far-away St. Clair County (modern-
     day Illinois), Lee suggested that the ``most solemn'' mode of 
     prosecution, an impeachment trial before the Senate, would be 
     ``very inconvenient, if not entirely impracticable.'' Id. Lee 
     informed the House that President Washington had directed the 
     territorial governor to arrange for a criminal prosecution 
     before the territorial court. See id. The House committee 
     considering the petition about Turner agreed with Lee's 
     suggestion and recommended that the House take no further 
     action. See Inquiry into the Official Conduct of a Judge of 
     the Supreme Court of the Northwestern Territory (Feb. 27, 
     1797), reprinted in 1 Am. State Papers: Misc. at 157.
       16. After the House impeached Senator Blount, the Senate 
     voted to dismiss the charges on the ground that a Senator is 
     not a civil officer subject to impeachment. See 3 Hinds' 
     Precedents Sec. 2318, at 678-80.
       17. A 2007 overview concluded that ``[t]here have been 
     approximately 94 identifiable impeachment-related inquiries 
     conducted by Congress[.]'' H.R. Doc. No. 109-153, at 115 
     (2007). Since 2007, two more judges have been impeached 
     following authorized investigations.
       18. The district court's erroneous conclusions rested upon 
     the arguments offered by the House Judiciary Committee, which 
     relied principally upon the judicial outliers from the 1980s, 
     a misunderstanding of the Nixon impeachment inquiry, and a 
     misreading of the committee's subpoena power under the House 
     Rules. See Application at 33-34, In re Application of the 
     Comm. on the Judiciary (D.D.C. July 26, 2019); Reply of the 
     Committee on the Judiciary, U.S. House of Representatives, in 
     Support of Its Application for an Order Authorizing the 
     Release of Certain Grand Jury Materials, at 16 n.19, In re 
     Application of the Comm. on the Judiciary (D.D.C. Sept. 30, 
     2019). HPSCI and the Judiciary Committee later reiterated 
     these arguments in their reports, each contending that 
     executive branch officials had ``obstructed'' the House's 
     impeachment inquiry by declining to comply with the pre-
     October 31 impeachment-related subpoenas. H.R. Rep. No. 116-
     335, at 168-72, 175-77 (2019); H.R. Rep. No. 116-346, at 10, 
     13-16 (2019). But those reports asserted that the pre-October 
     31 subpoenas were authorized because the committees 
     misunderstood the historical practice concerning the House's 
     impeachment inquiries (as we discuss in Part II.C) and they 
     misread the committees' subpoena authority under the House 
     Rules (as we discuss in Part III.A).
       19. See, e.g., Cong. Globe, 27th Cong., 3d Sess. 144, 146 
     (1843) (John Tyler); Cong. Globe, 39th Cong., 2d Sess. 320 
     (1867) (Andrew Johnson); 28 Cong. Rec. 5627, 5650 (1896) 
     (Grover Cleveland); 76 Cong. Rec. 399-402 (1932) (Herbert 
     Hoover); H.R. Res. 607, 82d Cong. (1952) (Harry Truman); H.R. 
     Res. 625, 93d Cong. (1973) (Richard Nixon); H.R. Res. 370, 
     98th Cong. (1983) (Ronald Reagan); H.R. Res. 34, 102d Cong. 
     (1991) (George H.W. Bush); H.R. Res. 525, 105th Cong. (1998) 
     (Bill Clinton); H.R. Res. 1258, 110th Cong. (2008) (George W. 
     Bush); H.R. Res. 13, 106th Cong. (2019) (Donald Trump).
       20. In 1860, the House authorized an investigation into the 
     actions of President Buchanan, but that investigation was not 
     styled as an impeachment investigation. See Cong. Globe, 36th 
     Cong., 1st Sess. 997-98 (1860) (resolution establishing a 
     committee of five members to ``investigat[e] whether the 
     President of the United States, or any other officer of the 
     government, ha[d], by money, patronage, or other improper 
     means, sought to influence the action of Congress'' or ``by 
     combination or otherwise, . . . attempted to prevent or 
     defeat, the execution of any law''). It appears to have been 
     understood by the committee as an oversight investigation. 
     See H.R. Rep. No. 36-648, at 1-28 (1860). Buchanan in fact 
     objected to the House's use of its legislative jurisdiction 
     to circumvent the protections traditionally provided in 
     connection with impeachment. See Message for the U.S. House 
     of Representatives from James Buchanan (June 22, 1860), 
     reprinted in 5 A Compilation of the Messages and Papers of

[[Page S366]]

     the Presidents 625 (James D. Richardson ed., 1897) (objecting 
     that if the House suspects presidential misconduct, it should 
     ``transfer the question from [its] legislative to [its] 
     accusatory jurisdiction, and take care that in all the 
     preliminary judicial proceedings preparatory to the vote of 
     articles of impeachment the accused should enjoy the benefit 
     of cross-examining the witnesses and all the other safeguards 
     with which the Constitution surrounds every American 
     citizen''); see also Mazars USA, 940 F.3d at 762 (Rao, J., 
     dissenting) (discussing the episode).
       21. The district court's recent decision in In re 
     Application of the Committee on the Judiciary misreads Hinds' 
     Precedents to suggest that the House Judiciary Committee 
     (which the court called ``HJC'') began investigating 
     President Johnson's impeachment without any authorizing 
     resolution. According to the district court, ``a resolution 
     authoriz[ing]' HJC to inquire into the official conduct of 
     Andrew Johnson' was passed after HJC `was already considering 
     the subject.' '' 2019 WL 5485221, at *27 (quoting 3 Hinds' 
     Precedents Sec. 2400, at 824). In fact, the committee was 
     ``already considering the subject'' at the time of the 
     February 4 resolution described in the quoted sentence 
     because, as explained in the text above, the House had 
     previously adopted a separate resolution authorizing an 
     impeachment investigation. See Cong. Globe, 39th Cong., 2d 
     Sess. 320-21 (1867); 3 Hinds' Precedents Sec. 2400, at 824.
       22. See, e.g., H.R. Res. 625, 631, 635, and 638, 93d Cong. 
     (1973) (impeachment); H.R. Res. 626, 627, 628, 636, and 637, 
     93d Cong. (1973) (Judiciary Committee or subcommittee 
     investigation).
       23. A New York Times article the following day 
     characterized House Resolution 803 as ``formally ratif[ying] 
     the impeachment inquiry begun by the committee [the prior] 
     October.'' James M. Naughton, House, 410-4, Gives Subpoena 
     Power in Nixon Inquiry, N.Y. Times, Feb. 7, 1974, at 1. But 
     the resolution did not grant after-the-fact authorization for 
     any prior action. To the contrary, the resolution 
     ``authorized and directed'' a future investigation, including 
     by providing subpoena power. In the report recommending 
     adoption of the resolution, the committee likewise described 
     its plans in the future tense: ``It is the intention of the 
     committee that its investigation will be conducted in all 
     respects on a fair, impartial and bipartisan basis.'' H.R. 
     Rep. No. 93-774, at 3 (1974).
       24. As with Presidents, many of these resolutions remained 
     with the committees until they expired at the end of the 
     Congress. Several merely articulated allegations of 
     impeachment. See, e.g., H.R. Res. 1028, 115th Cong. (2018) 
     (Deputy Attorney General Rod Rosenstein); H.R. Res. 417, 
     114th Cong. (2015) (Administrator of the Environmental 
     Protection Agency Regina McCarthy); H.R. Res. 411, 113th 
     Cong. (2013) (Attorney General Eric Holder); H.R. Res. 333, 
     110th Cong. (2007) (Vice President Richard Cheney); H.R. Res. 
     629, 108th Cong. (2004) (Secretary of Defense Donald 
     Rumsfeld); H.R. Res. 805, 95th Cong. (1977) (United Nations 
     Ambassador Andrew Young); H.R. Res. 274, 95th Cong. (1977) 
     (Commissioner of the Federal Trade Commission Paul Dixon); 
     H.R. Res. 881, 94th Cong. (1975) (U.S. Attorney Jonathan 
     Goldstein and Principal Assistant U.S. Attorney Bruce 
     Goldstein); H.R. Res. 647, 94th Cong. (1975) (Ambassador to 
     Iran Richard Helms); H.R. Res. 547, 94th Cong. (1975) 
     (Special Crime Strike Force Prosecutor Liam Coonan). Others 
     called for an investigation. See, e.g., H.R. Res. 589, 110th 
     Cong. (2007) (Attorney General Alberto Gonzales); H.R. Res. 
     582, 105th Cong. (1998) (Independent Counsel Kenneth Starr); 
     H.R. Res. 102, 99th Cong. (1985) (Chairman of the Board of 
     Governors of the Federal Reserve System Paul Volcker); H.R. 
     Res. 101, 99th Cong. (1985) (same and others); H.R. Res. 
     1025, 95th Cong. (1978) (Attorney General Griffin Bell); H.R. 
     Res. 1002, 95th Cong. (1978) (same); H.R. Res. 569, 93d Cong. 
     (1973) (Vice President Spiro Agnew); H.R. Res. 67, 76th Cong. 
     (1939) (Secretary of Labor Frances Perkins and others); 28 
     Cong. Rec. 114, 126 (1895) (Ambassador to Great Britain 
     Thomas Bayard); 16 Cong. Rec. 17-19 (1884) (U.S. Marshal Lot 
     Wright); Cong. Globe, 40th Cong., 1st Sess. 778-79 (1867) 
     (Minister to Great Britain Charles Francis Adams). On 
     occasion, the House voted to table these resolutions instead 
     of referring them to a committee. See, e.g., H.R. Res. 545, 
     105th Cong. (1998) (resolution of impeachment for Independent 
     Counsel Kenneth Starr); H.R. Res. 1267, 95th Cong. (1978) 
     (resolution of impeachment for Ambassador to the United 
     Nations Andrew Young).
       25. In 1878, the Committee on Expenditures in the State 
     Department, which was charged with investigative authority 
     for ``the exposing of frauds or abuses of any kind,'' 7 Cong. 
     Rec. 287, 290 (1878), was referred an investigation into 
     maladministration at the consulate in Shanghai during the 
     terms of Consul-General George Seward and Vice Consul-General 
     O.B. Bradford, id. at 504, 769. Eventually, the committee 
     began to consider Seward's impeachment, serving him with a 
     subpoena for testimony and documents, in response to which he 
     asserted his privilege against self-incrimination. See 3 
     Hinds' Precedents Sec. 2514, at 1023-24; H.R. Rep. No. 45-
     141, at 1-3 (1879). The committee recommended articles of 
     impeachment, but the House declined to act before the end of 
     the Congress. See 8 Cong. Rec. 2350-55 (1879); 3 Hinds' 
     Precedents Sec. 2514, at 1025. During this same period, the 
     Committee on Expenditures reported proposed articles of 
     impeachment against Bradford but recommended ``that the whole 
     subject be referred to the Committee on the Judiciary'' for 
     further consideration. H.R. Rep. No. 45-818, at 7 (1878). The 
     House agreed to the referral, but no further action was 
     taken. 7 Cong. Rec. at 3667.
       26. See, e.g., 3 Hinds' Precedents Sec. 2489, at 986 
     (William Van Ness, Mathias Tallmadge, and William Stephens, 
     1818); id. Sec. 2490, at 987 (Joseph Smith, 1825); id. 
     Sec. 2364, at 774 (James Peck, 1830); id. Sec. 2492, at 990 
     (Alfred Conkling, 1830); id. Sec. 2491, at 989 (Buckner 
     Thurston, 1837); id. Sec. 2494, at 993-94 (P.K. Lawrence, 
     1839); id. Sec. Sec. 2495, 2497, 2499, at 994, 998, 1003 
     (John Watrous, 1852-60); id. Sec. 2500, at 1005 (Thomas 
     Irwin, 1859); id. Sec. 2385, at 805 (West Humphreys, 1862); 
     id. Sec. 2503, at 1008 (anonymous justice of the Supreme 
     Court, 1868); id. Sec. 2504, at 1008-09 (Mark Delahay, 1872); 
     id. Sec. 2506, at 1011 (Edward Durell, 1873); id. Sec. 2512, 
     at 1021 (Richard Busteed, 1873); id. Sec. 2516, at 1027 
     (Henry Blodgett, 1879); id. Sec. Sec. 2517-18, at 1028, 1030-
     31 (Aleck Boarman, 1890-92); id. Sec. 2519, at 1032 (J.G. 
     Jenkins, 1894); id. Sec. 2520, at 1033 (Augustus Ricks, 
     1895); id. Sec. 2469, at 949- 50 (Charles Swayne, 1903); 6 
     Clarence Cannon, Cannon's Precedents of the House of 
     Representatives of the United States Sec. 498, at 685 (1936) 
     (Robert Archbald, 1912); id. Sec. 526, at 746-47 (Cornelius 
     H. Hanford, 1912); id. Sec. 527, at 749 (Emory Speer, 1913); 
     id. Sec. 528, at 753 (Daniel Wright, 1914); id. Sec. 529, at 
     756 (Alston Dayton, 1915); id. Sec. 543, at 777-78 (William 
     Baker, 1924); id. Sec. 544, at 778-79 (George English, 1925); 
     id. Sec. 549, at 789-90 (Frank Cooper, 1927); id. Sec. 550, 
     at 791-92 (Francis Winslow, 1929); id. Sec. 551, at 793 
     (Harry Anderson, 1930); id. Sec. 552, at 794 (Grover 
     Moscowitz, 1930); id. Sec. 513, at 709-10 (Harold Louderback, 
     1932); 3 Deschler's Precedents ch. 14, Sec. 14.4, at 2143 
     (James Lowell, 1933); id. Sec. 18.1, at 2205-06 (Halsted 
     Ritter, 1933); id. Sec. 14.10, at 2148 (Albert Johnson and 
     Albert Watson, 1944); H.R. Res. 1066, 94th Cong. (1976) 
     (certain federal judges); H.R. Res. 966, 95th Cong. (1978) 
     (Frank Battisti); see also 51 Cong. Rec. 6559-60 (1914) 
     (noting passage of authorizing resolution for investigation 
     of Daniel Wright); 68 Cong. Rec. 3532 (1927) (same for Frank 
     Cooper).
       27. Articles for the Impeachment of Lebbeus R. Wilfley, 
     Judge of the U.S. Court for China: Hearings Before a Subcomm. 
     of the H. Comm. on the Judiciary, 60th Cong. 4 (1908) 
     (statement of Rep. Waldo); see also id. at 45-46 (statement 
     of Rep. Moon) (``This committee conceives to be its duty 
     solely, under the resolution referring this matter to them, 
     to examine the charges preferred in the petition . . . and to 
     report thereon whether in its judgement the petitioner has 
     made out a prima facie case; and also whether . . . Congress 
     should adopt a resolution instructing the Judiciary Committee 
     to proceed to an investigation of the facts of the case.''); 
     6 Cannon's Precedents Sec. 525, at 743- 45 (summarizing the 
     Wilfley case, in which the Judiciary Committee ultimately 
     reported that no formal investigation was warranted). The 
     case of Judge Samuel Alschuler in 1935 similarly involved 
     only a preliminary investigation--albeit one with actual 
     investigative powers. The House first referred to the 
     Judiciary Committee a resolution that, if approved, would 
     authorize an investigation of potential impeachment charges. 
     See 79 Cong. Rec. 7086, 7106 (1935). Six days later, it 
     adopted a resolution that granted the committee investigative 
     powers in support of ``the preliminary examinations deemed 
     necessary'' for the committee to make a recommendation about 
     whether a full investigation should occur. Id. at 7393-94. 
     The committee ultimately recommended against a full 
     investigation. See H.R. Rep. No. 74-1802, at 2 (1935).
       28. See, e.g., 18 Annals of Cong. 1885-86, 2197-98 (1808) 
     (Harry Innes, 1808; the House passed a resolution authorizing 
     an impeachment investigation, which concluded that the 
     evidence accompanying the resolution did not support 
     impeachment); 3 Hinds' Precedents Sec. 2486, at 981-83 
     (George Turner, 1796; no apparent investigation, presumably 
     because of the parallel criminal prosecution recommended by 
     Attorney General Lee, as discussed above); id. Sec. 2488, at 
     985 (Harry Toulmin, 1811; the House ``declined to order a 
     formal investigation''); 40 Annals of Cong. 463-69, 715-18 
     (1822-23) (Charles Tait, 1823; no apparent investigation 
     beyond examination of documents containing charges); 3 Hinds' 
     Precedents Sec. 2493, at 991-92 (Benjamin Johnson, 1833; no 
     apparent investigation); id. Sec. 2511, at 1019-20 (Charles 
     Sherman, 1873; the Judiciary Committee received evidence from 
     the Ways and Means Committee, which had been investigating 
     corruption in Congress, but the Judiciary Committee conducted 
     no further investigation); 6 Cannon's Precedents Sec. 535, at 
     769 (Kenesaw Mountain Landis, 1921; the Judiciary Committee 
     reported that ``charges were filed too late in the present 
     session of the Congress'' to enable investigation); 3 
     Deschler's Precedents ch. 14, Sec. 14.6, at 2144-45 (Joseph 
     Molyneaux, 1934; the Judiciary Committee took no action on 
     the referral of a resolution that would have authorized an 
     investigation).
       29. See H.R. Rep. No. 100-810, at 11 & n.14 (stating that, 
     in the Hastings investigation, a committee subpoena had been 
     issued for William Borders, who challenged the subpoena on 
     First, Fourth, Fifth, and Eighth Amendment grounds); H.R. 
     Rep. No. 100-1124, at 130 (1989) (noting the issuance of 
     ``subpoenas duces tecum'' in the investigation of Judge 
     Nixon); 134 Cong. Rec. 27782 (1988) (statement of Rep. 
     Edwards) (explaining the subcommittee's need to depose some 
     witnesses pursuant to subpoena in the Nixon investigation); 
     Judge Walter L. Nixon, Jr., Impeachment Inquiry: Hearing 
     Before the Subcomm. on Civil & Constitutional Rights of the 
     H. Comm. on the Judiciary, 101st Cong. 530-606 (1988) 
     (reprinting deposition of Magistrate Judge Roper).

[[Page S367]]

  

       30. The House did pass resolutions authorizing funds for 
     investigations with respect to the Hastings impeachment, see 
     H.R. Res. 134, 100th Cong. (1987); H.R. Res. 388, 100th Cong. 
     (1988), and resolutions authorizing the committee to permit 
     its counsel to take affidavits and depositions in both the 
     Nixon and Hastings impeachments, see H.R. Res. 562, 100th 
     Cong. (1988) (Nixon); H.R. Res. 320, 100th Cong. (1987) 
     (Hastings).
       31. In the post-1989 era, as before, most of the 
     impeachment resolutions against judges that were referred to 
     the Judiciary Committee did not result in any further 
     investigation. See, e.g., H.R. Res. 916, 109th Cong. (2006) 
     (Manuel Real); H.R. Res. 207, 103d Cong. (1993) (Robert 
     Collins); H.R. Res. 177, 103d Cong. (1993) (Robert Aguilar); 
     H.R. Res. 176, 103d Cong. (1993) (Robert Collins).
       32. Unlike the House, ``the Senate treats its rules as 
     remaining in effect continuously from one Congress to the 
     next without having to be re-adopted.'' Richard S. Beth, 
     Cong. Research Serv., R42929, Procedures for Considering 
     Changes in Senate Rules 9 (Jan. 22, 2013). Of course, like 
     the House, the Senate may change its rules by simple 
     resolution.
       33. Nor do the Rules otherwise give the Speaker the 
     authority to order an investigation or issue a subpoena in 
     connection with impeachment. Rule I sets out the powers of 
     the Speaker. She ``shall sign . . . all writs, warrants, and 
     subpoenas of, or issued by order of, the House.'' Rule I, cl. 
     4. But that provision applies only when the House itself 
     issues an order. See Jefferson's Manual Sec. 626, at 348.
       34. Clause 2(m) of Rule XI was initially adopted on October 
     8, 1974, and took effect on January 3, 1975. See H.R. Res. 
     988, 93d Cong. The rule appears to have remained materially 
     unchanged from 1975 to the present (including during the time 
     of the Clinton investigation). See H.R. Rule XI, cl. 2(m), 
     105th Cong. (Jan. 1, 1998) (version in effect during the 
     Clinton investigation); Jefferson's Manual Sec. 805, at 586-
     89 (reprinting current version and describing the provision's 
     evolution).
       35. At the start of the 93rd Congress in 1973, the 
     Judiciary Committee was ``authorized to conduct full and 
     complete studies and investigations and make inquiries within 
     its jurisdiction as set forth in [the relevant provision] of 
     the Rules of the House of Representatives'' and was empowered 
     ``to hold such hearings and require, by subpena or otherwise, 
     the attendance and testimony of such witnesses and the 
     production of such books, records, correspondence, 
     memorandums, papers, and documents, as it deems necessary.'' 
     H.R. Res. 74, 93d Cong. Sec. Sec. 1, 2(a) (1973); see also 
     Cong. Research Serv., R45769, The Impeachment Process in the 
     House of Representatives 4 (updated Nov. 14, 2019) (noting 
     that, before Rule XI vested subpoena power in standing 
     committees, the Judiciary Committee and other committees had 
     often been given subpoena authority ``through resolutions 
     providing blanket investigatory authorities that were agreed 
     to at the start of a Congress'').
       36. The Judiciary Committee has also invoked House 
     Resolution 430 as an independent source of authority for an 
     impeachment inquiry. See Tr. of Mot. Hrg. at 91-92, In re 
     Application of the Comm. on the Judiciary; see also Majority 
     Staff of H. Comm. on the Judiciary, 116th Cong., 
     Constitutional Grounds for Presidential Impeachment 39 (Dec. 
     2019). As discussed above, however, that resolution did not 
     confer any investigative authority. Rather, it granted ``any 
     and all necessary authority under Article I'' only ``in 
     connection with'' certain ``judicial proceeding[s]'' in 
     federal court. H.R. Res. 430, 116th Cong. (2019); see supra 
     note 7. The resolution therefore had no bearing on any 
     committee's authority to compel the production of documents 
     or testimony in an impeachment investigation.
       37. Even if the House had sought to ratify a previously 
     issued subpoena, it could give that subpoena only prospective 
     effect. As discussed above, the Supreme Court has recognized 
     that the House may not cite a witness for contempt for 
     failure to comply with a subpoena unsupported by a valid 
     delegation of authority at the time it was issued. See 
     Rumely, 345 U.S. at 48; see also Exxon, 589 F.2d at 592 (``To 
     issue a valid subpoena, . . . a committee or subcommittee 
     must conform strictly to the resolution establishing its 
     investigatory powers[.]'').
       38. The letters accompanying other subpoenas, see supra 
     note 9, contained similar threats that the recipients' 
     ``failure or refusal to comply with the subpoena, including 
     at the direction or behest of the President,'' would 
     constitute ``evidence of obstruction of the House's 
     impeachment inquiry.''
       39. See, e.g., Attempted Exclusion of Agency Counsel from 
     Congressional Depositions of Agency Employees, 43 Op. O.L.C. 
     __, at *14 (May 23, 2019) (``[I]t would be unconstitutional 
     to enforce a subpoena against an agency employee who declined 
     to appear before Congress, at the agency's direction, because 
     the committee would not permit an agency representative to 
     accompany him.''); Testimonial Immunity Before Congress of 
     the Former Counsel to the President, 43 Op. O.L.C. __, at *20 
     (May 20, 2019) (``The constitutional separation of powers 
     bars Congress from exercising its inherent contempt power in 
     the face of a presidential assertion of executive 
     privilege.''); Whether the Department of Justice May 
     Prosecute White House Officials for Contempt of Congress, 32 
     Op. O.L.C. 65, 65-69 (2008) (concluding that the Department 
     cannot take ``prosecutorial action, with respect to current 
     or former White House officials who . . . declined to appear 
     to testify, in response to subpoenas from a congressional 
     committee, based on the President's assertion of executive 
     privilege''); Application of 28 U.S.C. Sec. 458 to 
     Presidential Appointments of Federal Judges, 19 Op. O.L.C. 
     350, 356 (1995) (``[T]he criminal contempt of Congress 
     statute does not apply to the President or presidential 
     subordinates who assert executive privilege.''); see also 
     Authority of Agency Officials to Prohibit Employees from 
     Providing Information to Congress, 28 Op. O.L.C. 79, 80-82 
     (2004) (explaining that the Executive Branch has the 
     constitutional authority to supervise its employees' 
     disclosure of privileged and other information to Congress).

                               APPENDIX D

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

                                       U.S. Department of Justice,


                                      Office of Legal Counsel,

                                 Washington, DC, October 25, 2019.
     Pat A. Cipollone,
     Counsel to the President, The White House,
     Washington, DC.
       Dear Mr. Cipollone: Today, the Permanent Select Committee 
     on Intelligence of the House of Representatives issued a 
     subpoena seeking to compel Charles Kupperman, former 
     Assistant to the President and Deputy National Security 
     Advisor, to testify on Monday, October 28. The Committee 
     subpoenaed Mr. Kupperman as part of its purported impeachment 
     inquiry into the conduct of the President. The Administration 
     has previously explained to the Committee that the House has 
     not authorized an impeachment inquiry, and therefore, the 
     Committee may not compel testimony in connection with the 
     inquiry. Setting aside the question whether the inquiry has 
     been lawfully authorized, you have asked whether the 
     Committee may compel Mr. Kupperman to testify even assuming 
     an authorized subpoena. We conclude that he is absolutely 
     immune from compelled congressional testimony in his capacity 
     as a former senior adviser to the President.
       The Committee seeks Mr. Kupperman's testimony about matters 
     related to his official duties at the White House. We 
     understand that Committee staff informed Mr. Kupperman's 
     private counsel that the Committee wishes to question him 
     about the telephone call between President Trump and the 
     President of Ukraine that took place on July 25, 2019, during 
     Mr. Kupperman's tenure as a presidential adviser, and related 
     matters. See ``Urgent Concern'' Determination by the 
     Inspector General of the Intelligence Community, 43 Op. 
     O.L.C. __, at *1-3 (Sept. 3, 2019) (discussing the July 25 
     telephone call).
       The Department of Justice has for decades taken the 
     position, and this Office recently reaffirmed, that 
     ``Congress may not constitutionally compel the President's 
     senior advisers to testify about their official duties.'' 
     Testimonial Immunity Before Congress of the Former Counsel to 
     the President, 43 Op. O.L.C. ____, at *1 (May 20, 2019) 
     (``Immunity of the Former Counsel''). This testimonial 
     immunity is rooted in the separation of powers and derives 
     from the President's status as the head of a separate, co-
     equal branch of government. See id at *3-7. Because the 
     President's closest advisers serve as his alter egos, 
     compelling them to testify would undercut the ``independence 
     and autonomy'' of the Presidency, id. at *4, and interfere 
     directly with the President's ability to faithfully discharge 
     his responsibilities. Absent immunity, ``congressional 
     committees could wield their compulsory power to attempt to 
     supervise the President's actions, or to harass those 
     advisers in an effort to influence their conduct, retaliate 
     for actions the committee disliked, or embarrass and weaken 
     the President for partisan gain.'' Immunity of the Assistant 
     to the President and Director of the Office of Political 
     Strategy and Outreach From Congressional Subpoena, 38 Op. 
     O.L.C. __, at *3 (July 15, 2014). Congressional questioning 
     of the President's senior advisers would also undermine the 
     independence and candor of executive branch deliberations. 
     See Immunity of the Former Counsel, 43 Op. O.L.C. at *5-7. 
     Administrations of both political parties have insisted on 
     the immunity of senior presidential advisers, which is 
     critical to protect the institution of the Presidency. 
     Assertion of Executive Privilege with Respect to Clemency 
     Decision, 23 Op. O.L.C. 1, 5 (1999) (A.G. Reno).
       Mr. Kupperman qualifies as a senior presidential adviser 
     entitled to immunity. The testimonial immunity applies to the 
     President's ``immediate advisers--that is, those who 
     customarily meet with the President on a regular or frequent 
     basis.'' Memorandum for John D. Ehrlichman, Assistant to the 
     President for Domestic Affairs, from William H. Rehnquist, 
     Assistant Attorney General, Office of Legal Counsel, Re: 
     Power of Congressional Committee to Compel Appearance or 
     Testimony of ``White House Staff'' at 7 (Feb. 5, 1971). Your 
     office has informed us that Mr. Kupperman served as the sole 
     deputy to National Security Advisor John R. Bolton, and 
     briefly served as Acting National Security Advisor after Mr. 
     Bolton's departure. As Deputy National Security Advisor, Mr. 
     Kupperman generally met with the President multiple times per 
     week to advise him on a wide range of national security 
     matters, and he met with the President even more often

[[Page S368]]

     during the frequent periods when Mr. Bolton was traveling. 
     Mr. Kupperman participated in sensitive internal 
     deliberations with the President and other senior advisers, 
     maintained an office in the West Wing of the White House, 
     traveled with the President on official trips abroad on 
     multiple occasions, and regularly attended the presentation 
     of the President's Daily Brief and meetings of the National 
     Security Council presided over by the President.
       Mr. Kupperman's immunity from compelled testimony is 
     strengthened because his duties concerned national security. 
     The Supreme Court held in Harlow v. Fitzgerald, 457 U.S. 800 
     (1982), that senior presidential advisers do not enjoy 
     absolute immunity from civil liability--a holding that, as we 
     have previously explained, does not conflict with our 
     recognition of absolute immunity from compelled congressional 
     testimony for such advisers, see, e.g., Immunity of the 
     Former Counsel, 43 Op. O.L.C. at *13-14. Yet the Harlow Court 
     recognized that ``[f]or aides entrusted with discretionary 
     authority in such sensitive areas as national security or 
     foreign policy,'' even absolute immunity from suit ``might 
     well be justified to protect the unhesitating performance of 
     functions vital to the national interest.'' 457 U.S. at 812; 
     see also id. at 812 n.19 (``a derivative claim to 
     Presidential immunity would be strongest in such `central' 
     Presidential domains as foreign policy and national security, 
     in which the President could not discharge his singularly 
     vital mandate without delegating functions nearly as 
     sensitive as his own'').
       Immunity is also particularly justified here because the 
     Committee apparently seeks Mr. Kupperman' s testimony about 
     the President's conduct of relations with a foreign 
     government. The President has the constitutional 
     responsibility to conduct diplomatic relations, see Assertion 
     of Executive Privilege for Documents Concerning Conduct of 
     Foreign Affairs with Respect to Haiti, 20 Op. O.L.C. 5, 7 
     (1996) (A.G. Reno), and as a result, the President has the 
     ``exclusive authority to determine the time, scope, and 
     objectives of international negotiations.'' Unconstitutional 
     Restrictions on Activities of the Office of Science and 
     Technology Policy in Section 1340(a) of the Department of 
     Defense and Full-Year Continuing Appropriations Act, 2011, 35 
     Op. O.L.C. __, at *4 (Sept. 19, 2011) (quotation marks 
     omitted). Compelling testimony about these sensitive 
     constitutional responsibilities would only deepen the very 
     concerns--about separation of powers and confidentiality--
     that underlie the rationale for testimonial immunity. See New 
     York Times Co. v. United States, 403 U.S. 713, 728 (1971) 
     (Stewart, J., concurring) (``[I]t is elementary that the 
     successful conduct of international diplomacy and the 
     maintenance of an effective national defense require both 
     confidentiality and secrecy.'').
       Finally, it is inconsequential that Mr. Kupperman is now a 
     private citizen. In Immunity of the Former Counsel, we 
     reaffirmed that for purposes of testimonial immunity, there 
     is ``no material distinction'' between ``current and former 
     senior advisers to the President,'' and therefore, an 
     adviser's departure from the White House staff ``does not 
     alter his immunity from compelled congressional testimony on 
     matters related to his service to the President.'' 43 Op. 
     O.L.C. at *16; see also Immunity of the Former Counsel to the 
     President from Compelled Congressional Testimony, 31 Op. 
     O.L.C. 191, 192-93 (2007). It is sufficient that the 
     Committee seeks Mr. Kupperman's testimony on matters related 
     to his official duties at the White House.
       Please let us know if we may be of further assistance.
                                                  Steven A. Engel,
     Assistant Attorney General.
                                  ____

                                       U.S. Department of Justice,


                                      Office of Legal Counsel,

                                 Washington, DC, November 3, 2019.
     Pat A. Cipollone,
     Counsel to the President, The White House,
     Washington, DC.
       Dear Mr. Cipollone: On November 1, 2019, the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives issued a subpoena seeking to compel John 
     Eisenberg to testify at a deposition on Monday, November 4. 
     Mr. Eisenberg serves as Assistant to the President, Deputy 
     Counsel to the President for National Security Affairs, and 
     Legal Advisor to the National Security Council. The Committee 
     subpoenaed Mr. Eisenberg as part of its impeachment inquiry 
     into the conduct of the President. See H.R. Res. 660, 116th 
     Cong. (2019). You have asked whether the Committee may compel 
     Mr. Eisenberg to testify. We conclude that he is absolutely 
     immune from compelled congressional testimony in his capacity 
     as a senior adviser to the President.
       The Committee has made clear that it seeks to question Mr. 
     Eisenberg about matters related to his official duties at the 
     White House. The Committee informed him that it is 
     investigating the President's conduct of foreign relations 
     with Ukraine and that it believes, ``[b]ased upon public 
     reporting and evidence gathered as part of the impeachment 
     inquiry,'' that Mr. Eisenberg has ``information relevant to 
     these matters.'' Letter for John Eisenberg from Adam B. 
     Schiff, Chairman, House Permanent Select Committee on 
     Intelligence, et al. at 1 (Oct. 30, 2019); see also Letter 
     for John Eisenberg from Adam B. Schiff, Chairman, House 
     Permanent Select Committee on Intelligence, et al. at 1 (Nov. 
     1, 2019).
       The Executive Branch has taken the position for decades 
     that ``Congress may not constitutionally compel the 
     President's senior advisers to testify about their official 
     duties.'' Testimonial Immunity Before Congress of the Former 
     Counsel to the President, 43 Op. O.L.C. __, at *1 (May 20, 
     2019) (``Immunity of the Former Counsel''). This testimonial 
     immunity is rooted in the separation of powers and derives 
     from the President's status as the head of a separate, co-
     equal branch of government. See id. at *3-7. Because the 
     President's closest advisers serve as his alter egos, 
     compelling them to testify would undercut the ``independence 
     and autonomy'' of the Presidency, id. at *4, and interfere 
     directly with the President's ability to faithfully discharge 
     his constitutional responsibilities. Absent immunity, 
     ``congressional committees could wield their compulsory power 
     to attempt to supervise the President's actions, or to harass 
     those advisers in an effort to influence their conduct, 
     retaliate for actions the committee disliked, or embarrass 
     and weaken the President for partisan gain.'' Immunity of the 
     Assistant to the President and Director of the Office of 
     Political Strategy and Outreach From Congressional Subpoena, 
     38 Op. O.L.C. __, at *3 (July 15, 2014) (``Immunity of the 
     Assistant to the President''). Congressional questioning of 
     the President's senior advisers would also undermine the 
     independence and candor of executive branch deliberations. 
     See Immunity of the Former Counsel, 43 Op. O.L.C. at *5-7. 
     For these reasons, the Executive Branch has long recognized 
     the immunity of senior presidential advisers to be critical 
     to protecting the institution of the Presidency.
       This testimonial immunity applies in an impeachment inquiry 
     just as it applies in a legislative oversight inquiry. As our 
     Office recently advised you, executive privilege remains 
     available when a congressional committee conducts an 
     impeachment investigation. See Letter for Pat A. Cipollone, 
     Counsel to the President, from Steven A. Engel, Assistant 
     Attorney General, Office of Legal Counsel at 2 & n.l (Nov. 1, 
     2019). The testimonial immunity of senior presidential 
     advisers is ``broader'' than executive privilege and exists 
     in part to prevent the inadvertent disclosure of privileged 
     information, Immunity of the Former Counsel, 43 Op. O.L.C. at 
     *4, *6, so it follows that testimonial immunity also 
     continues to apply in the impeachment context. More 
     importantly, the commencement of an impeachment inquiry only 
     heightens the need to safeguard the separation of powers and 
     preserve the ``independence and autonomy'' of the 
     Presidency--the principal concerns underlying testimonial 
     immunity. Id. at *4. Even when impeachment proceedings are 
     underway, the President must remain able to continue to 
     discharge the duties of his office. The testimonial immunity 
     of the President's senior advisers remains an important 
     limitation to protect the independence and autonomy of the 
     President himself.
       We do not doubt that there may be impeachment 
     investigations in which the House will have a legitimate need 
     for information possessed by the President's senior advisers, 
     but the House may have a legitimate need in a legislative 
     oversight inquiry. In both instances, the testimonial 
     immunity of the President's senior advisers will not prevent 
     the House from obtaining information from other available 
     sources. The immunity of those immediate advisers will not 
     itself prevent the House from obtaining testimony from others 
     in the Executive Branch, including in the White House, or 
     from obtaining pertinent documents (although the House may 
     still need to overcome executive privilege with respect to 
     testimony and documents to which the privilege applies). In 
     addition, the President may choose to authorize his senior 
     advisers to provide testimony because ``the benefit of 
     providing such testimony as an accommodation to a committee's 
     interests outweighs the potential for harassment and harm to 
     Executive Branch confidentiality.'' Immunity of the Assistant 
     to the President, 38 Op. O.L.C. at *4 n.2. Accordingly, our 
     recognition that the immunity applies to an impeachment 
     inquiry does not preclude the House from obtaining 
     information from other sources.
       We next consider whether Mr. Eisenberg qualifies as a 
     senior presidential adviser. The testimonial immunity applies 
     to the President's ``immediate advisers--that is, those who 
     customarily meet with the President on a regular or frequent 
     basis.'' Memorandum for John D. Ehrlichman, Assistant to the 
     President for Domestic Affairs, from William H. Rehnquist, 
     Assistant Attorney General, Office of Legal Counsel, Re: 
     Power of Congressional Committee to Compel Appearance or 
     Testimony of ``White House Staff'' at 7 (Feb. 5, 1971). We 
     believe that Mr. Eisenberg meets that definition. Mr. 
     Eisenberg has served as an adviser to the President on 
     sensitive legal and national security matters since the first 
     day of the Administration, and his direct relationship with 
     the President has grown over time. Your office has informed 
     us that he regularly meets with the President multiple times 
     each week, frequently in very small groups, and often 
     communicates with the President multiple times per day. He is 
     one of a small number of advisers who are authorized to 
     contact the President directly, and the President directly 
     seeks his advice. Mr. Eisenberg is therefore the kind of 
     immediate presidential adviser that the Executive Branch has 
     historically considered immune from compelled congressional 
     testimony.
       Mr. Eisenberg's eligibility for immunity is particularly 
     justified because his duties concern national security. The 
     Supreme Court held in Hurluw v. Fitzgerald, 457 U.S. 800 
     (1982), that senior presidential advisers do

[[Page S369]]

     not enjoy absolute immunity from civil liability--a holding 
     that, as we have previously explained, does not conflict with 
     our recognition of absolute immunity from compelled 
     congressional testimony for such advisers, see Immunity of 
     the Assistant to the President, 38 Op. O.L.C. at *5-9. Yet 
     the Harlow Court recognized that ``[f]or aides entrusted with 
     discretionary authority in such sensitive areas as national 
     security or foreign policy,'' even absolute immunity from 
     suit ``might well be justified to protect the unhesitating 
     performance of functions vital to the national interest.'' 
     457 U.S. at 812; see also id. at 812 n.19 (``a derivative 
     claim to Presidential immunity would be strongest in such 
     `central' Presidential domains as foreign policy and national 
     security, in which the President could not discharge his 
     singularly vital mandate without delegating functions nearly 
     as sensitive as his own'').
       Moreover, the Committee seeks Mr. Eisenberg's testimony 
     about the President's conduct of relations with a foreign 
     government. The President has the constitutional 
     responsibility to conduct diplomatic relations, see Assertion 
     of Executive Privilege for Documents Concerning Conduct of 
     Foreign Affairs with Respect to Haiti, 20 Op. O.L.C. 5, 7 
     (1996) (A.G. Reno), and as a result, the President has the 
     ``exclusive authority to determine the time, scope, and 
     objectives of international negotiations.'' Unconstitutional 
     Restrictions on Activities of the Office of Science and 
     Technology Policy in Section 1340(a) of the Department of 
     Defense and Full-Year Continuing Appropriations Act, 2011, 35 
     Op. O.L.C. __, at *4 (Sept. 19, 2011) (quotation marks 
     omitted). Compelling testimony about these sensitive 
     constitutional responsibilities would only deepen the very 
     concerns--about separation of powers and confidentiality--
     that underlie the rationale for testimonial immunity. See New 
     York Times Co. v. United States, 403 U.S. 713, 728 (1971) 
     (Stewart, J., concurring) (``[I]t is elementary that the 
     successful conduct of international diplomacy and the 
     maintenance of an effective national defense require both 
     confidentiality and secrecy.'').
       Please let us know if we may be of further assistance.
                                                  Steven A. Engel,
     Assistant Attorney General.
                                  ____

                                       U.S. Department of Justice,


                                      Office of Legal Counsel,

                                 Washington, DC, November 7, 2019.
     Pat A. Cipollone,
     Counsel to the President, The White House,
     Washington, DC.
       Dear Mr. Cipollone: On November 7, 2019, the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives issued a subpoena seeking to compel Mick 
     Mulvaney, Assistant to the President and Acting White House 
     Chief of Staff, to testify at a deposition on Friday, 
     November 8. The Committee subpoenaed Mr. Mulvaney as part of 
     its impeachment inquiry into the conduct of the President. 
     See H.R. Res. 660, 116th Cong. (2019). You have asked whether 
     the Committee may compel him to testify. We conclude that Mr. 
     Mulvaney is absolutely immune from compelled congressional 
     testimony in his capacity as a senior adviser to the 
     President.
       The Executive Branch has taken the position for decades 
     that ``Congress may not constitutionally compel the 
     President's senior advisers to testify about their official 
     duties.'' Testimonial Immunity Before Congress ofthe Former 
     Counsel to the President, 43 Op. O.L.C. __, at *1 (May 20, 
     2019). The immunity applies to those ``immediate advisers .  
     .  . who customarily meet with the President on a regular or 
     frequent basis.'' Memorandum for John D. Ehrlichman, 
     Assistant to the President for Domestic Affairs, from William 
     H. Rehnquist, Assistant Attorney General, Office of Legal 
     Counsel, Re: Power of Congressional Committee to Compel 
     Appearance or Testimony of ``White House Staff'' at 7 (Feb. 
     5, 1971) (``Rehnquist Memorandum''). We recently advised you 
     that this immunity applies in an impeachment inquiry just as 
     in a legislative oversight inquiry. See Letter for Pat A. 
     Cipollone, Counsel to the President, from Steven A. Engel, 
     Assistant Attorney General, Office of Legal Counsel at 2 
     (Nov. 3, 2019). ``Even when impeachment proceedings are 
     underway,'' we explained, ``the President must remain able to 
     continue to discharge the duties of his office. The 
     testimonial immunity of the President's senior advisers 
     remains an important limitation to protect the independence 
     and autonomy ofthe President himself.'' Id.
       This immunity applies in connection with the Committee's 
     subpoena for Mr. Mulvaney's testimony. The Committee intends 
     to question Mr. Mulvaney about matters related to his 
     official duties at the White House--specifically the 
     President's conduct of foreign relations with Ukraine. See 
     Letter for Mick Mulvaney from Adam B. Schiff, Chairman, House 
     Permanent Select Committee on Intelligence, et al. (Nov. 5, 
     2019). And Mr. Mulvaney, as Acting Chief of Staff, is a ``top 
     presidential adviser[],'' In re Sealed Case, 121 F.3d 729, 
     757 (D.C. Cir. 1997), who works closely with the President in 
     supervising the staff within the Executive Office ofthe 
     President and managing the advice the President receives. See 
     David B. Cohen & Charles E. Walcott, White House Transition 
     Project, Report 2017-21, The Office of Chief of Staff l5-26 
     (2017). Mr. Mulvaney meets with and advises the President on 
     a daily basis about the most sensitive issues confronting the 
     government. Thus, he readily qualifies as an ``immediate 
     adviser[]'' who may not be compelled to testify before 
     Congress. Rehnquist Memorandum at 7.
       This conclusion also follows from this Office's prior 
     recognition that certain Deputy White House Chiefs of Staff 
     were immune from compelled congressional testimony. See 
     Letter for Pat A. Cipollone, Counsel to the President, from 
     Steven A. Engel, Assistant Attorney General, Office ofLegal 
     Counsel (Sept. 16, 2019) (former Deputy Chief of Staff for 
     Policy Implementation Rick Dearborn); Letter for Fred F. 
     Fielding, Counsel to the President, from Steven G. Bradbury, 
     Principal Deputy Assistant Attorney General, Office of Legal 
     Counsel (Aug. 1, 2007) (Deputy White House Chief of Staff 
     Karl Rove). In addition, as we have noted with respect to 
     other recently issued subpoenas, testimonial immunity is 
     particularly justified because the Committee seeks Mr. 
     Mulvaney's testimony about the President's conduct of 
     relations with a foreign government. See, e.g., Letter for 
     Pat A. Cipollone, Counsel to the President, from Steven A. 
     Engel, Assistant Attorney General, Office of Legal Counsel at 
     2-3 (Oct. 25, 2019); see also Harlow v. Fitzgerald, 457 U.S. 
     800, 812 n.19 (1982) (``[A] derivative claim to Presidential 
     immunity would be strongest in such `central' Presidential 
     domains as foreign policy and national security, in which the 
     President could not discharge his singularly vital mandate 
     without delegating functions nearly as sensitive as his 
     own.'').
       Please let us know if we may be of further assistance.
                                                  Steven A. Engel,
     Assistant Attorney General.
                                  ____


            [IN PROCEEDINGS BEFORE THE UNITED STATES SENATE]

             TRIAL MEMORANDUM OF PRESIDENT DONALD J. TRUMP

       January 20, 2020.
                                  ____


 [In the Senate of the United States Sitting as a Court of Impeachment]

             In re Impeachment of President Donald J. Trump

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

       The House of Representatives, through its Managers and 
     counsel, replies to the Answer of President Donald J. Trump 
     as follows:


                                PREAMBLE

       The House denies each and every allegation and defense in 
     the Preamble to the Answer.
       The American people entrusted President Trump with the 
     extraordinary powers vested in his Office by the 
     Constitution, powers which he swore a sacred Oath to use for 
     the Nation's benefit. President Trump broke that promise. He 
     used Presidential powers to pressure a vulnerable foreign 
     partner to interfere in our elections for his own benefit. In 
     doing so, he jeopardized our national security and our 
     democratic self-governance. He then used his Presidential 
     powers to orchestrate a cover-up unprecedented in the history 
     of our Republic: a complete and relentless blockade of the 
     House's constitutional power to investigate high Crimes and 
     Misdemeanors.
       President Trump maintains that the Senate cannot remove him 
     even if the House proves every claim in the Articles of 
     impeachment. That is a chilling assertion. It is also dead 
     wrong. The Framers deliberately drafted a Constitution that 
     allows the Senate to remove Presidents who, like President 
     Trump, abuse their power to cheat in elections, betray our 
     national security, and ignore checks and balances. That 
     President Trump believes otherwise, and insists he is free to 
     engage in such conduct again, only highlights the continuing 
     threat he poses to the Nation if allowed to remain in office.
       Despite President Trump's stonewalling of the impeachment 
     inquiry, the House amassed overwhelming evidence of his 
     guilt. It did so through fair procedures rooted firmly in the 
     Constitution and precedent. It extended President Trump 
     protections equal to, or greater than, those afforded to 
     Presidents in prior impeachment inquiries. To prevent 
     President Trump's obstruction from delaying justice until 
     after the very election he seeks to corrupt, the House moved 
     decisively to adopt the two Articles of impeachment. Still, 
     new evidence continues to emerge, all of which confirms these 
     charges.
       Now it is the Senate's duty to conduct a fair trial--fair 
     for President Trump, and fair for the American people. Only 
     if the Senate sees and hears all relevant evidence--only if 
     it insists upon the whole truth--can it render impartial 
     justice. That means the Senate should require the President 
     to turn over the documents he is hiding. It should hear from 
     witnesses, as it has done in every impeachment trial in 
     American history; it especially should hear from witnesses 
     the President blocked from testifying in the House. President 
     Trump cannot have it both ways. His Answer directly disputes 
     key facts. He must either surrender all evidence relevant to 
     the facts he has disputed or concede the facts as charged. 
     Otherwise, this impeachment trial will fall far short of the 
     American system of justice.
       President Trump asserts that his impeachment is a partisan 
     ``hoax.'' He is wrong. The House duly approved Articles of 
     impeachment because its Members swore Oaths to support and 
     defend the Constitution against all threats, foreign and 
     domestic. The House has fulfilled its constitutional duty. 
     Now, Senators must honor their own Oaths by

[[Page S370]]

     holding a fair trial with all relevant evidence. The Senate 
     should place truth above faction. And it should convict the 
     President on both Articles.


                               ARTICLE I

       The House denies each and every allegation in the Answer to 
     Article I that denies the acts, knowledge, intent, or 
     wrongful conduct charged against President Trump. The House 
     states that each and every allegation in Article I is true, 
     and that any affirmative defenses set forth in the Answer to 
     Article I are wholly without merit. The House further states 
     that Article I properly alleges an impeachable offense under 
     the Constitution, is not subject to a motion to dismiss, and 
     should be considered and adjudicated by the Senate sitting as 
     a Court of Impeachment.
       Article I charges President Trump with Abuse of Power. The 
     President solicited and pressured a foreign nation, Ukraine, 
     to help him cheat in the next Presidential election by 
     announcing two investigations: the first into an American 
     citizen who was also a political opponent of his; the second 
     into a baseless conspiracy theory promoted by Russia that 
     Ukraine, not Russia, interfered in the 2016 election. 
     President Trump sought to coerce Ukraine into making these 
     announcements by withholding two official acts: the release 
     of desperately needed military aid and a vital White House 
     meeting. There is overwhelming evidence of the charges in 
     Article I, as set forth in the 111-page brief and statement 
     of material facts that the House submitted on January 18, 
     2020.
       In his Answer, the President describes ``several simple 
     facts'' that prove he ``did nothing wrong.'' This is false. 
     President Trump cites the record of his July 25, 2019 phone 
     call with President Volodymyr Zelensky of Ukraine. But we 
     have read the transcript and it confirms his guilt. It shows, 
     first and foremost, that he solicited a foreign power to 
     announce two politically motivated investigations that would 
     benefit him personally. It also indicates that he linked 
     these investigations to the release of military assistance: 
     on the call, he responded to President Zelensky's inquiries 
     about U.S. military support by pressing him to ``do us a 
     favor though'' and pursue President Trump's desired political 
     investigations. Astoundingly, the Answer claims that 
     President Trump raised the issue of ``corruption'' during the 
     July 25 call, but that word appears nowhere in the record of 
     the call, despite the urging of his national security staff. 
     In fact, President Trump did not care at all about Ukraine; 
     he only cared about the ``big stuff'' that affected him 
     personally, specifically the Biden investigation.
       President Trump also points to statements by ``President 
     Zelensky and other Ukrainian officials'' denying any 
     impropriety. Yet there is clear proof that Ukrainian 
     officials felt pressured by President Trump and grasped the 
     corrupt nature of his scheme. For example, a Ukrainian 
     national security advisor stated that President Zelensky ``is 
     sensitive about Ukraine being taken seriously, not merely as 
     an instrument in Washington domestic, reelection 
     politics.'' As experts testified in the House, President 
     Zelensky remains critically dependent on continued United 
     States military and diplomatic support. He has powerful 
     incentives to avoid angering President Trump.
       President Trump places great weight on two of his own 
     statements denying a quid pro quo. These are hardly 
     convincing. One denial the President blurted out, unprompted, 
     to Ambassador Gordon Sondland, but only after the White House 
     had learned about a whistleblower complaint and the 
     Washington Post had reported the President's corrupt scheme--
     in other words, after President Trump got caught. President 
     Trump then demanded to Ambassador Sondland that Ukraine 
     execute the very this-for-that corrupt exchange that is 
     alleged in Article I. As to the second denial cited in the 
     Answer, President Trump made this statement to Senator Ron 
     Johnson also after having learned of the whistleblower 
     complaint, while inexplicably refusing the Senator's urgent 
     plea to release the military aid. In any event, these self-
     serving false statements are contradicted by all of the other 
     evidence. They show a cover-up and consciousness of guilt, 
     not a credible defense for the President.
       Lastly, the President notes that he met with President 
     Zelensky at the U.N. General Assembly and released the aid 
     without Ukraine announcing the investigations. But he did so 
     only after he was caught red-handed. And he still has not met 
     with President Zelensky at the White House, which Ukraine has 
     long sought to demonstrate United States support in the face 
     of Russian aggression.
       The Answer offers an unconvincing and implausible defense 
     against the factual allegations in Article I. The ``simple 
     facts'' that it recites confirm President Trump's guilt, not 
     his innocence. Moreover, fairness demands that if the 
     President wants to put the facts at issue, he must end his 
     cover-up and provide the Senate with all of the relevant 
     documents and testimony. He cannot deny facts established by 
     overwhelming evidence while concealing additional relevant 
     evidence.
       The President also asserts that Article I does not state an 
     impeachable offense. In his view, the American people are 
     powerless to remove a President for corruptly using his 
     Office to cheat in the next election by soliciting and 
     coercing a foreign power to sabotage a rival and spread 
     conspiracy theories helpful to the President. This is the 
     argument of a monarch, with no basis in the Constitution.
       Abuse of Power is an impeachable offense. The Framers made 
     this clear, including Alexander Hamilton, James Madison, 
     James Iredell, and Edmund Randolph. The Supreme Court has 
     recognized as much, as did the House Judiciary Committee in 
     President Richard Nixon's case.
       When the Framers wrote the Impeachment Clause, they aimed 
     it squarely at abuse of office for personal gain, betrayal of 
     the national interest through foreign entanglements, and 
     corruption of elections. President Trump has engaged in the 
     trifecta of constitutional misconduct warranting removal. He 
     is the Framers' worst nightmare come to life.


                               ARTICLE II

       The House denies each and every allegation in the Answer to 
     Article II that denies the acts, knowledge, intent, or 
     wrongful conduct charged against President Trump. The House 
     further states that each and every allegation in Article II 
     is true, and that any affirmative defenses set forth in the 
     Answer to Article II are wholly without merit. The House 
     further states that Article II properly alleges an 
     impeachable offense under the Constitution, is not subject to 
     a motion to dismiss, and should be considered and adjudicated 
     by the Senate sitting as a Court of Impeachment.
       Article II charges President Trump with directing the 
     categorical and indiscriminate defiance of every single 
     subpoena served by the House in its impeachment inquiry. No 
     President or other official in the history of the Republic 
     has ever ordered others to defy an impeachment subpoena; 
     Presidents Andrew Johnson, Richard Nixon, and Bill Clinton 
     all allowed their most senior advisors to give testimony to 
     Congressional investigators. Nor has any President or other 
     official himself defied such a subpoena--except for President 
     Nixon, who, like President Trump, faced an article of 
     impeachment for Obstruction of Congress. Instead, Presidents 
     have recognized that Congressional power is at its apex in an 
     impeachment. As President James Polk stated: the ``power of 
     the House'' in cases of impeachment ``would penetrate into 
     the most secret recesses of the Executive Departments.''
       President Trump's defenses are wrong. At his personal 
     direction, nine officials refused subpoenas to testify and 
     the White House, Office of Management and Budget, and 
     Departments of State, Defense, and Energy all defied valid 
     subpoenas for documents. The fact that President Trump caved 
     to public pressure and released two call transcripts--which, 
     in fact, expose his guilt--hardly amounts to ``transparency'' 
     and does not mitigate his obstruction.
       Nor is President Trump's Obstruction of Congress excused by 
     his incorrect legal arguments.
       First, the impeachment inquiry was properly authorized and 
     Congressional subpoenas do not require a vote of the full 
     House.
       Second, President Trump's blanket and categorical defiance 
     of the House stemmed from his unilateral decision not to 
     ``participate'' in the impeachment investigation, not from 
     any legal assertion.
       Third, President Trump never actually asserted executive 
     privilege, a limited doctrine that has never been accepted as 
     a basis for defying impeachment subpoenas. The foreign 
     affairs and national security setting of this impeachment 
     does not require a different result here; it makes the 
     President's obstruction all the more alarming. The Framers 
     explicitly stated that betrayal involving foreign powers is a 
     core impeachable offense. It follows that the House is 
     empowered to investigate such abuses, as all 17 current and 
     former Executive Branch officials who testified about these 
     matters recognized.
       Fourth, the President's invocation of ``absolute immunity'' 
     fails because this fictional doctrine has been rejected by 
     every court to consider it in similar circumstances; 
     President Trump extended it far beyond any understanding by 
     prior Presidents; and it offers no explanation for his 
     across-the-board refusal to turn over every single document 
     subpoenaed.
       Finally, the President's lawyers have argued in court that 
     it is constitutionally forbidden for the House to seek 
     judicial enforcement of its subpoenas, even as they now argue 
     in the Senate that the House is required to seek such 
     enforcement. Again, President Trump would have it both ways: 
     he argues simultaneously that the House must use the courts 
     and that it is prohibited from using the courts. This 
     duplicity is poor camouflage for the weakness of President 
     Trump's legal arguments. More significantly, any judicial 
     enforcement effort would have taken years to pursue. In 
     granting the House the ``sole Power of Impeachment,'' along 
     with the power to investigate grounds for impeachment, the 
     Framers did not require the House to exhaust all alternative 
     methods of obtaining evidence, especially when those 
     alternatives would fail to deal with an immediate threat. To 
     protect the Nation, the House had to act swiftly in 
     addressing the clear and present danger posed by President 
     Trump's misconduct.
       President Trump engaged in a cover-up that itself 
     establishes his consciousness of guilt. Innocent people seek 
     to bring the truth to light. In contrast, President Trump has 
     acted in the way that guilty people do when they are caught 
     and fear the facts. But the stakes here are even higher than 
     that. In completely obstructing an investigation into

[[Page S371]]

     his own misconduct, President Trump asserted the prerogative 
     to nullify Congress's impeachment power itself. He placed 
     himself above the law and eviscerated the separation of 
     powers. This claim evokes monarchy and despotism. It has no 
     place in our democracy, where even the highest official must 
     answer to Congress and the Constitution.


                               conclusion

       The House denies each and every allegation and defense in 
     the Conclusion to the Answer.
       President Trump did not engage in this corrupt conduct to 
     uphold the Presidency or protect the right to vote. He did it 
     to cheat in the next election and bury the evidence when he 
     got caught. He has acted in ways that prior Presidents 
     expressly disavowed, while injuring our national security and 
     democracy. And he will persist in that misconduct--which he 
     deems ``perfect''--unless and until he is removed from 
     office. The Senate should do so following a fair trial.
           Respectfully submitted,
       United States House of Representatives
     Adam B. Schiff,
     Jerrold Nadler,
     Zoe Lofgren,
     Hakeem S. Jeffries,
     Val Butler Demings,
     Jason Crow,
     Sylvia R. Garcia,
       U.S. House of Representatives Managers.
       January 20, 2020.
                                  ____


 [In the Senate of the United States Sitting as a Court of Impeachment]

             In re Impeachment of President Donald J. Trump

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


                              INTRODUCTION

       President Trump's brief confirms that his misconduct is 
     indefensible. To obtain a personal political ``favor'' 
     designed to weaken a political rival, President Trump 
     corruptly pressured the newly elected Ukrainian President 
     into announcing two sham investigations. As leverage against 
     Ukraine in his corrupt scheme, President Trump illegally 
     withheld hundreds of millions of dollars in security 
     assistance critical to Ukraine's defense against Russian 
     aggression, as well as a vital Oval Office meeting. When he 
     got caught, President Trump sought to cover up his scheme by 
     ordering his Administration to disclose no information to the 
     House of Representatives in its impeachment investigation. 
     President Trump's efforts to hide his misdeeds continue to 
     this day, as do his efforts to solicit foreign interference. 
     President Trump must be removed from office now because he is 
     trying to cheat his way to victory in the 2020 Presidential 
     election, and thereby undermine the very foundation of our 
     democratic system.
       President Trump's lengthy brief to the Senate is heavy on 
     rhetoric and procedural grievances, but entirely lacks a 
     legitimate defense of his misconduct. It is clear from his 
     response that President Trump would rather discuss anything 
     other than what he actually did. Indeed, the first 80 pages 
     of his brief do not meaningfully attempt to defend his 
     conduct--because there is no defense for a President who 
     seeks foreign election interference to retain power and then 
     attempts to cover it up by obstructing a Congressional 
     inquiry. The Senate should swiftly reject President Trump's 
     bluster and evasion, which amount to the frightening 
     assertion that he may commit whatever misconduct he wishes, 
     at whatever cost to the Nation, and then hide his actions 
     from the representatives of the American people without 
     repercussion.
       First, President Trump's argument that abuse of power is 
     not an impeachable offense is wrong--and dangerous. That 
     argument would mean that, even accepting that the House's 
     recitation of the facts is correct--which it is--the House 
     lacks authority to remove a President who sells out our 
     democracy and national security in exchange for a personal 
     political favor. The Framers of our Constitution took pains 
     to ensure that such egregious abuses of power would be 
     impeachable. They specifically rejected a proposal to limit 
     impeachable offenses to treason and bribery and included the 
     term ``other high Crimes and Misdemeanors.'' \1\
       There can be no reasonable dispute that the Framers would 
     have considered a President's solicitation of a foreign 
     country's election interference in exchange for critical 
     American military and diplomatic support to be an impeachable 
     offense. Nor can there be any dispute that the Framers would 
     have recognized that allowing a President to prevent Congress 
     from investigating his misconduct would nullify the House's 
     ``sole Power of Impeachment.'' \2\ No amount of legal 
     rhetoric can hide the fact that President Trump exemplifies 
     why the Framers included the impeachment mechanism in the 
     Constitution: to save the American people from these kinds of 
     threats to our republic.
       Second, President Trump's assertion that impeachable 
     offenses must involve criminal conduct is refuted by two 
     centuries of precedent and, if accepted, would have 
     intolerable consequences. But this argument has not been 
     accepted in previous impeachment proceedings and should not 
     be accepted here. As one member of President Trump's legal 
     team previously conceded, President Trump's theory would mean 
     that the President could not be impeached even if he allowed 
     an enemy power to invade and conquer American territory.\3\ 
     The absurdity of that argument demonstrates why every serious 
     constitutional scholar to consider it--including the House 
     Republicans' own legal expert--has rejected it.\4\ The 
     Framers intentionally did not tie ``high Crimes and 
     Misdemeanors'' to the federal criminal code--which did not 
     exist at the time of the Founding--but instead created 
     impeachment to cover severe abuses of the public trust like 
     those of President Trump.
       Third, President Trump now claims that he had virtuous 
     reasons for withholding from our ally Ukraine sorely needed 
     security assistance and that there was no actual threat or 
     reward as part of his proposed corrupt bargain. But the 
     President's after-the-fact justifications for his illegal 
     hold on security assistance cannot fool anybody. The reason 
     President Trump jeopardized U.S. national security and the 
     integrity of our elections is even more pernicious: he wanted 
     leverage over Ukraine to obtain a personal, political favor 
     that he hoped would bolster his reelection bid.
       If withholding the security assistance to Ukraine had been 
     a legitimate foreign policy act, then there is no reason 
     President Trump's staff would have gone to such lengths to 
     hide it, and no reason President Trump would have tried so 
     hard to deny the obvious when it came to light. It is common 
     sense that innocent people do not behave like President Trump 
     did here. As his own Acting Chief of Staff Mick Mulvaney 
     bluntly confessed and as numerous other witnesses confirmed, 
     there was indeed a quid pro quo with Ukraine. The Trump 
     Administration's message to the American people was clear: 
     ``We do that all the time with foreign policy.'' \5\ Instead 
     of embracing what his Acting Chief of Staff honestly 
     disclosed, President Trump has tried to hide what the 
     evidence plainly reveals: the Emperor has no clothes.
       Fourth, President Trump's assertion that he has acted with 
     ``transparency'' during this impeachment is yet another 
     falsehood. In fact, unlike any of his predecessors, President 
     Trump categorically refused to provide the House with any 
     information and demanded that the entire Executive Branch 
     coverup his misconduct. President Trump's subordinates fell 
     in line.
       Similarly wrong is the argument by President Trump's 
     lawyers that his blanket claim of immunity from investigation 
     should now be understood as a valid assertion of executive 
     privilege--a privilege he never actually invoked. And 
     President Trump's continued attempt to justify his 
     obstruction by citing to constitutional separation of powers 
     misunderstands the nature of an impeachment. His across-the-
     board refusal to provide Congress with information and his 
     assertion that his own lawyers are the sole judges of 
     Presidential privilege undermines the constitutional 
     authority of the people's representatives and shifts power to 
     an imperial President.
       Fifth, President Trump's complaints about the House's 
     impeachment procedures are meritless excuses. President Trump 
     was offered an eminently fair process by the House and he 
     will receive additional process during the Senate 
     proceedings, which, unlike the House investigation, 
     constitute an actual trial. As President Trump recognizes, 
     the Senate must ``decide for itself all matters of law and 
     fact.'' \6\
       The House provided President Trump with process that was 
     just as substantial--if not more so--than the process 
     afforded other Presidents who have been subject to an 
     impeachment inquiry, including the right to call witnesses 
     and present evidence. Because he had too much to hide, 
     President Trump did not take advantage of what the House 
     offered him and instead decided to shout from the sidelines--
     only to claim that the process he obstructed was unfair. 
     President Trump's lengthy trial brief does not explain why, 
     even now, he has not offered any documents or witnesses in 
     his defense or provided any information in response to the 
     House's repeated requests. This is not how an innocent person 
     behaves. President Trump's process arguments are simply part 
     of his attempt to cover up his wrongdoing and to undermine 
     the House in the exercise of its constitutional duty.
       Finally, President Trump's impeachment trial is an effort 
     to safeguard our elections, not override them. His 
     unsupported contentions to the contrary have it exactly 
     backwards. President Trump has shown that he will use the 
     immense powers of his office to manipulate the upcoming 
     election to his own advantage. Respect for the integrity of 
     this Nation's democratic process requires that President 
     Trump be removed before he can corrupt the very election that 
     would hold him accountable to the American people.
       In addition, President Trump is wrong to suggest that the 
     impeachment trial is an attempt to overturn the prior 
     election. If the Senate convicts and removes President Trump 
     from office, then the Vice President elected by the American 
     people in 2016 will become the President.\7\ The logic of 
     President Trump's argument is that because he was elected 
     once and stands for reelection again, he cannot be impeached 
     no matter how egregiously he betrays his oath of office. This 
     type of argument would not have fooled the Framers of our 
     Constitution, who included impeachment as a check on 
     Presidents who would abuse their office for personal gain, 
     like President Trump.
       The Framers anticipated that a President might one day seek 
     to place his own personal

[[Page S372]]

     and political interests above those of our Nation, and they 
     understood that foreign interference in our elections was one 
     of the gravest threats to our democracy. The Framers also 
     knew that periodic democratic elections cannot serve as an 
     effective check on a President who seeks to manipulate the 
     those elections. The ultimate check on Presidential 
     misconduct was provided by the Framers through the power to 
     impeach and remove a President--a power that the Framers 
     vested in the representatives of the American people.
       Indeed, on the eve of his impeachment trial, President 
     Trump continues to insist that he has done nothing wrong. 
     President Trump's view that he cannot be held accountable, 
     except in an election he seeks to fix in his favor, 
     underscores the need for the Senate to exercise its solemn 
     constitutional duty to remove President Trump from office. If 
     the Senate does not convict and remove President Trump, he 
     will have succeeded in placing himself above the law. Each 
     Senator should set aside partisanship and politics and hold 
     President Trump accountable to protect our national security 
     and democracy.


                                ARGUMENT

     I. President Trump must be Removed for Abusing his Power

  A. President Trump's Abuse of Power Is a Quintessential Impeachable 
                                Offense

       President Trump contends that he can abuse his power with 
     impunity--in his words, ``do whatever I want as President'' 
     \8\--provided he does not technically violate a statute in 
     the process. That argument is both wrong and remarkable. 
     History, precedent, and the words of the Framers conclusively 
     establish that serious abuses of power--offenses, like 
     President Trump's, that threaten our democratic system--are 
     impeachable.
       President Trump's own misconduct illustrates the 
     implications of his position. In President Trump's view, as 
     long as he does not violate a specific statute, then the only 
     check on his corrupt abuse of his office for his personal 
     gain is the need to face reelection--even if the very goal of 
     his abusive behavior is to cheat in that election. If 
     President Trump were to succeed in his scheme and win a 
     second and final term, he would face no check on his 
     conduct. The Senate should reject that dangerous position.
       1. The Framers Intended Impeachment as a Remedy for Abuse 
     of High Office. President Trump appears to reluctantly 
     concede that the fear that Presidents would abuse their power 
     was among the key reasons that the Framers adopted an 
     impeachment remedy.\9\ But he contends that abuse of power 
     was never intended to be an impeachable offense in its own 
     right.\10\
       President Trump's focus on the label to be applied to his 
     conduct distracts from the fundamental point: His conduct is 
     impeachable whether it is called an ``abuse of power'' or 
     something else. The Senate is not engaged in an abstract 
     debate about how to categorize the particular acts at issue; 
     the question instead is whether President Trump's conduct is 
     impeachable because it is a serious threat to our republic. 
     For the reasons set forth in the House Manager's opening 
     brief, the answer is plainly yes.
       In any event, President Trump is wrong that abuses of power 
     are not impeachable. The Framers focused on the toxic 
     combination of corruption and foreign interference--what 
     George Washington in his Farewell Address called ``one of the 
     most baneful foes of republican government.'' \11\ James 
     Madison put it simply: The President ``might betray his trust 
     to foreign powers.'' \12\
       To the Framers, such an abuse of power was the 
     quintessential impeachable conduct. They therefore rejected a 
     proposal to limit impeachable offenses to only treason and 
     bribery. They recognized the peril of setting a rigid 
     standard for impeachment, and adopted terminology that would 
     encompass what George Mason termed the many ``great and 
     dangerous offenses'' that might ``subvert the Constitution.'' 
     \13\ The Framers considered and rejected as too narrow the 
     word ``corruption,'' deciding instead on the term ``high 
     Crimes and Misdemeanors'' because it would encompass the type 
     of ``abuse or violation of some public trust''--the abuse of 
     power--that President Trump committed here.\14\
       2. Impeachable Conduct Need Not Violate Established Law. 
     President Trump argues that a President's conduct is 
     impeachable only if it violates a ``known offense defined in 
     existing law.'' \15\ That contention conflicts with 
     constitutional text, Congressional precedents, and the 
     overwhelming consensus of constitutional scholars.
       The Framers borrowed the term ``high Crimes and 
     Misdemeanors'' from British practice and state constitutions. 
     As that term was applied in England, officials had long been 
     impeached for non-statutory offenses, such as the failure to 
     spend money allocated by Parliament, disobeying an order of 
     Parliament, and appointing unfit subordinates.\16\ The 
     British understood impeachable offenses to be ``so various in 
     their character, and so indefinable in their actual 
     involutions, that it is almost impossible to provide 
     systematically for them by positive law.'' \17\
       American precedent confirms that the Impeachment Clause is 
     not confined to a statutory code. The articles of impeachment 
     against President Nixon turned on his abuse of power, rather 
     than on his commission of a statutory offense. Many of the 
     specific allegations set forth in those three articles did 
     not involve any crimes. Instead, the House Judiciary 
     Committee emphasized that President Nixon's conduct was 
     ``undertaken for his own personal political advantage and not 
     in furtherance of any valid national policy objective'' 
     \18\--and expressly stated that his abuses of power warranted 
     removal regardless whether they violated a specific 
     statute.\19\
       Previous impeachments were in accord. In 1912, for example, 
     Judge Archibald was impeached and convicted for using his 
     position to generate business deals with potential litigants 
     in his court, even though this behavior had not been shown to 
     violate any then-existing statute or laws regulating judges. 
     The House Manager in the Archibald impeachment asserted that 
     ``[t]he decisions of the Senate of the United States, of the 
     various State tribunals which have jurisdiction over 
     impeachment cases, and of the Parliament of England all agree 
     that an offense, in order to be impeachable, need not be 
     indictable either at common law or under any statute.'' \20\ 
     As early as 1803, Judge Pickering was impeached and then 
     removed from office by the Senate for refusing to allow an 
     appeal, declining to hear witnesses, and appearing on the 
     bench while intoxicated and thereby ``degrading the honor and 
     dignity of the United States.'' \21\
       President Trump's argument conflicts with a long history of 
     scholarly consensus, including among ``some of the most 
     distinguished members of the [Constitutional] convention.'' 
     \22\ As a leading early treatise on the Constitution 
     explained, impeachable offenses ``are not necessarily 
     offences against the general laws . . . [for] [i]t is often 
     found that offences of a very serious nature by high officers 
     are not offences against the criminal code, but consist in 
     abuses or betrayals of trust, or inexcusable neglects of 
     duty.'' \23\ In his influential 1833 treatise, Supreme Court 
     Justice Joseph Story similarly explained that impeachment 
     encompasses ``misdeeds . . . as peculiarly injure the 
     commonwealth by the abuse of high offices of trust,'' whether 
     or not those misdeeds violate existing statutes intended for 
     other circumstances.\24\ Story observed that the focus was 
     not ``crimes of a strictly legal character,'' but instead 
     ``what are aptly termed, political offences, growing out of 
     personal misconduct, or gross neglect, or usurpation, or 
     habitual disregard of the public interests, in the discharge 
     of the duties of political office.'' \25\
       The fact that impeachment is not limited to violations of 
     ``established law'' reflects its basic function as a remedy 
     reserved for office-holders who occupy special positions of 
     trust and power. Statutes of general applicability do not 
     address the ways in which those to whom impeachment applies 
     may abuse their unique positions. Limiting impeachment only 
     to those statutes would defeat its basic purpose.
       Modern constitutional scholars overwhelmingly agree. That 
     includes one of President Trump's own attorneys, who argued 
     during President Clinton's impeachment: ``It certainly 
     doesn't have to be a crime, if you have somebody who 
     completely corrupts the office of president, and who abuses 
     trust and who poses great danger to our liberty.'' \26\ More 
     recently, that attorney changed positions and now maintains 
     that a President cannot be impeached even for allowing a 
     foreign sovereign to conquer an American State.\27\ The 
     absurdity of that argument helps explain why it has been so 
     uniformly rejected.
       Even if President Trump were correct that the Impeachment 
     Clause covers only conduct that violates established law, his 
     argument would fail. President Trump concedes that ``high 
     crimes and misdemeanors'' encompasses conduct that is akin to 
     the terms that precede it in the Constitution--treason and 
     bribery.\28\ And there can be no reasonable dispute that his 
     misconduct is closely akin to bribery. ``The corrupt exercise 
     of power in exchange for a personal benefit defines 
     impeachable bribery.'' \29\ Here, President Trump conditioned 
     his performance of a required duty (disbursement of 
     Congressionally appropriated aid funds to Ukraine) on the 
     receipt of a personal benefit (the announcement of 
     investigations designed to skew the upcoming election in his 
     favor). This conduct carries all the essential qualities of 
     bribery under common law and early American precedents 
     familiar to the Framers.\30\ It would be all the more wrong 
     in their view because it involves a solicitation to a foreign 
     government to manipulate our democratic process. And 
     President Trump did actually violate an ``established law'': 
     the Impoundment Control Act.\31\ Thus, even under his own 
     standard, President Trump's conduct is impeachable.
       3. Corrupt Intent May Render Conduct an Impeachable Abuse 
     of Power. President Trump next contends that the Impeachment 
     Clause does not encompass any abuse of power that turns on 
     the President's reasons for acting. Thus, according to 
     President Trump, if he could perform an act for legitimate 
     reasons, then he necessarily could perform the same act for 
     corrupt reasons.\32\ That argument is obviously wrong.
       The Impeachment Clause itself forecloses President Trump's 
     argument. The specific offenses enumerated in that Clause--
     bribery and treason--both turn on the subjective intent of 
     the actor. Treason requires a ``disloyal mind'' and bribery 
     requires corrupt intent.\33\ Thus, a President may form a 
     military alliance with a foreign nation because he believes 
     that doing so is in the Nation's strategic interests, but if 
     the President forms that same alliance for the purpose of 
     taking up arms and overthrowing the Congress, his conduct is 
     treasonous. Bribery

[[Page S373]]

     turns on similar considerations of corrupt intent. And, 
     contrary to President Trump's assertion, past impeachments 
     have concerned ``permissible conduct that had been simply 
     done with the wrong subjective motives.'' \34\ The first and 
     second articles of impeachment against President Nixon, for 
     example, charged him with using the powers of his office with 
     the impermissible goals of obstructing justice and targeting 
     his political opponents--in other words, for exercising 
     Presidential power based on impermissible reasons.\35\
       There are many acts that a President has ``objective'' 
     authority to perform that would constitute grave abuses of 
     power if done for corrupt reasons. A President may issue a 
     pardon because the applicant demonstrates remorse and meets 
     the standards for clemency, but if a President issued a 
     pardon in order to prevent a witness from testifying against 
     him, or in exchange for campaign donations, or for other 
     corrupt motives, his conduct would be impeachable--as our 
     Supreme Court unanimously recognized nearly a century 
     ago.\36\ The same principle applies here.

   B. The House Has Proven that President Trump Corruptly Pressured 
  Ukraine to Interfere in the Presidential Election for His Personal 
                                Benefit

       President Trump withheld hundreds of millions of dollars in 
     military aid and an important Oval Office meeting from 
     Ukraine, a vulnerable American ally, in a scheme to extort 
     the Ukrainian government into announcing investigations that 
     would help President Trump and smear a potential rival in the 
     upcoming U.S. Presidential election. He has not come close to 
     justifying that misconduct.
       1. President Trump principally maintains that he did not in 
     fact condition the military aid and Oval Office meeting on 
     Ukraine's announcement of the investigations--repeatedly 
     asserting that there was ``no quid pro quo.'' \37\ The 
     overwhelming weight of the evidence refutes that assertion. 
     And President Trump has effectively muzzled witnesses who 
     could shed additional light on the facts.
       Although President Trump argues that he ``did not make any 
     connection between the assistance and any investigation,'' 
     \38\ his own Acting Chief of Staff, Mick Mulvaney, admitted 
     the opposite during a press conference--conceding that the 
     investigation into Ukrainian election interference was part 
     of ``why we held up the money.'' \39\ After a reporter 
     inquired about this concession of a quid pro quo, Mr. 
     Mulvaney replied, ``[W]e do that all the time with foreign 
     policy,'' added, ``get over it,'' and then refused to explain 
     these statements by testifying in response to a House 
     subpoena.\40\ The President's brief does not even address Mr. 
     Mulvaney's admission. Ambassador Taylor also acknowledged the 
     quid pro quo, stating, ``I think it's crazy to withhold 
     security assistance for help with a political campaign.'' 
     \41\ And Ambassador Sondland testified that the existence of 
     a quid pro quo regarding the security assistance was as clear 
     as ``two plus two equals four.'' \42\ President Trump's 
     lawyers also avoid responding to these statements.
       The same is true of the long-sought Oval Office meeting. As 
     Ambassador Sondland testified: ``I know that members of this 
     committee frequently frame these complicated issues in the 
     form of a simple question: Was there a quid pro quo?'' He 
     answered that, ``with regard to the requested White House 
     call and the White House meeting, the answer is yes.'' \43\ 
     Ambassador Taylor reaffirmed the existence of a quid pro quo 
     regarding the Oval Office meeting, testifying that ``the 
     meeting President Zelensky wanted was conditioned on the 
     investigations of Burisma and alleged Ukrainian interference 
     in the 2016 U.S. elections.'' \44\ Other witnesses testified 
     similarly.\45\
       President Trump's principal answer to this evidence is to 
     point to two conversations in which he declared to Ambassador 
     Sondland and Senator Ron Johnson that there was ``no quid pro 
     quo.'' \46\ Both conversations occurred after the President 
     had been informed of the whistleblower complaint against him, 
     at which point he obviously had a strong motive to come up 
     with seemingly innocent cover stories for his misconduct.
       In addition, President Trump's brief omits the second half 
     of what he told Ambassador Sondland during their call. 
     Immediately after declaring that there was ``no quid pro 
     quo,'' the President insisted that ``President Zelensky must 
     announce the opening of the investigations and he should want 
     to do it.'' \47\ President Trump thus conveyed that President 
     Zelensky ``must'' announce the sham investigations in 
     exchange for American support--the very definition of a quid 
     pro quo, notwithstanding President Trump's self-serving, 
     false statement to the contrary. Indeed that statement shows 
     his consciousness of guilt.
       President Trump also asserts that there cannot have been a 
     quid pro quo because President Zelensky and other Ukrainian 
     officials have denied that President Trump acted 
     improperly.\48\ But the evidence shows that Ukrainian 
     officials understood that they were being used ``as a pawn in 
     a U.S. reelection campaign.'' \49\ It is hardly surprising 
     that President Zelensky has publicly denied the existence of 
     a quid pro quo given that Ukraine remains critically 
     dependent on continued U.S. military and diplomatic support, 
     and given that President Zelensky accordingly has a powerful 
     incentive to avoid angering an already troubled President 
     Trump.
       President Trump's assertion that the evidence of a quid pro 
     quo cannot be trusted because it is ``hearsay'' is 
     incorrect.\50\ The White House's readout of the July 25 phone 
     call itself establishes that President Trump linked military 
     assistance on President Zelensky's willingness to do him a 
     ``favor''--which President Trump made clear was to 
     investigate former Vice President Biden and alleged Ukrainian 
     election interference.\51\ One of the people who spoke 
     directly to President Trump--and whose testimony therefore 
     was not hearsay--was Ambassador Sondland, who confirmed the 
     existence of a quid pro quo and provided some of the most 
     damning testimony against President Trump.\52\ Other 
     witnesses provided compelling corroborating evidence of the 
     President's scheme.\53\
       President Trump's denials of the quid pro quo are, 
     therefore, plainly false. There is a term for this type of 
     self-serving denial in criminal cases--a ``false 
     exculpatory''--which is strong evidence of guilt.\54\ When a 
     defendant ``intentionally offers an explanation, or makes 
     some statement tending to show his innocence, and this 
     explanation or statement is later shown to be false,'' such a 
     false statement tends to show the defendant's consciousness 
     of guilt.\55\ President Trump's denial of the quid pro quo 
     underscores that he knows his scheme to procure the sham 
     investigations was improper, and that he is now lying to 
     cover it up.
       2. President Trump next argues that he withheld urgently 
     needed support for Ukraine for reasons unrelated to his 
     political interest.\56\ But President Trump's asserted 
     reasons for withholding the military aid and Oval Office 
     meeting are implausible on their face.\57\
       President Trump never attempted to justify the decision to 
     withhold the military aid and Oval Office meeting on foreign 
     policy grounds when it was underway. To the contrary, 
     President Trump's lawyer Rudy Giuliani acknowledged about his 
     Ukraine work that ``this isn't foreign policy.'' \58\ 
     President Trump sought to hide the scheme from the public and 
     refused to give any explanation for it even within the U.S. 
     government. He persisted in the scheme after his own Defense 
     Department warned--correctly--that withholding military aid 
     appropriated by Congress would violate federal law, and after 
     his National Security Advisor likened the arrangement to a 
     ``drug deal.'' \59\ And he released the military aid shortly 
     after Congress announced an investigation \60\--in other 
     words, after he got caught. The various explanations that 
     President Trump now presses are after-the-fact pretexts that 
     cannot be reconciled with his actual conduct.\61\
       The Anti-Corruption Pretext. The evidence shows that 
     President Trump was actually indifferent to corruption in 
     Ukraine before Vice President Biden became a candidate for 
     President. After Biden's candidacy was announced, President 
     Trump remained uninterested in anti-corruption measures in 
     Ukraine beyond announcements of two sham investigations that 
     would help him personally.\62\ In fact, he praised a corrupt 
     prosecutor and recalled a U.S. Ambassador known for her anti-
     corruption efforts. President Trump did not seek 
     investigations into alleged corruption--as one would expect 
     if anti-corruption were his goal--but instead sought only 
     announcements of investigations--because those announcements 
     are what would help him politically.
       As Ambassador Sondland testified, President Trump ``did not 
     give a [expletive] about Ukraine,'' and instead cared only 
     about ``big stuff'' that benefitted him personally like ``the 
     Biden investigation.'' \63\ While President Trump asserts 
     that he released the aid in response to Ukraine's actual 
     progress on corruption,\64\ in fact he released the aid two 
     days after Congress announced an investigation into his 
     misconduct. And President Trump's claim that the removal of 
     the former Ukrainian prosecutor general encouraged him to 
     release the aid is astonishing.\65\ On the July 25 call with 
     President Zelensky, President Trump praised that very same 
     prosecutor--and Mr. Giuliani continues to meet with that 
     prosecutor to try to dig up dirt on Vice President Biden to 
     this day.\66\
       The Burden-Sharing Pretext. Until his scheme was exposed, 
     President Trump never attempted to attribute his hold on 
     military aid to a concern about other countries not sharing 
     the burden of supporting Ukraine.\67\ One reason he never 
     attempted to justify the hold on these grounds is that it is 
     not grounded in reality. Other countries in fact contribute 
     substantially to Ukraine. Since 2014, the European Union and 
     European financial institutions have committed over $16 
     billion to Ukraine.\68\
       In addition, President Trump never even asked European 
     countries to increase their contributions to Ukraine as a 
     condition for releasing the assistance. He released the 
     assistance even though European countries did not change 
     their contributions. President Trump's asserted concern about 
     burden-sharing is impossible to credit given that he kept his 
     own Administration in the dark about the issue for months, 
     never made any contemporaneous public statements about it, 
     never asked Europe to increase its contribution,\69\ and 
     released the aid without any change in Europe's contribution 
     only two days after an investigation into his scheme 
     commenced.\70\
       The Burisma Pretext. The conspiracy theory regarding Vice 
     President Biden and Burisma is baseless. There is no credible 
     evidence to

[[Page S374]]

     support the allegation that Vice President Biden encouraged 
     Ukraine to remove one of its prosecutors in an improper 
     effort to protect his son. To the contrary, Biden was 
     carrying out official U.S. policy--with bipartisan support--
     when he sought that prosecutor's ouster because the 
     prosecutor was known to be corrupt.\71\ In any event, the 
     prosecutor's removal made it more likely that Ukraine would 
     investigate Burisma, not less likely--a fact that President 
     Trump does not attempt to dispute. The allegations against 
     Biden are based on events that occurred in late 2015 and 
     early 2016--yet President Trump only began to push Ukraine to 
     investigate these allegations in 2019, when it appeared 
     likely that Vice President Biden would enter the 2020 
     Presidential race to challenge President Trump's reelection.
       The Ukrainian-Election-Interference Pretext. The 
     Intelligence Community, Senate Select Committee on 
     Intelligence, and Special Counsel Mueller all unanimously 
     found that Russia--not Ukraine--interfered in the 2016 
     election. President Trump's own FBI Director confirmed that 
     American law enforcement has ``no information that indicates 
     that Ukraine interfered with the 2016 presidential 
     election.'' \72\ In fact, the theory of Ukrainian 
     interference is Russian propaganda--``a fictional narrative 
     that is being perpetrated and propagated by the Russian 
     security services themselves'' to drive a wedge between the 
     United States and Ukraine.\73\
       Thanks to President Trump, this Russian propaganda effort 
     is spreading. In November, President Vladimir Putin said, 
     ``Thank God no one is accusing us of interfering in the U.S. 
     elections anymore; now they're accusing Ukraine.'' \74\ 
     President Trump is correct in asserting ``that the United 
     States has a compelling interest . . . in limiting the 
     participation of foreign citizens in activities of American 
     democratic self-government'' \75\--and that is exactly why 
     his misconduct is so harmful, and warrants removal from 
     Office.
     II. President Trump must be removed for obstructing congress
       President Trump has answered the House's constitutional 
     mandate to enforce its ``sole power of Impeachment'' \76\ 
     with open defiance: obstructing this constitutional process 
     wholesale by withholding documents, directing witnesses not 
     to appear, threatening those who did, and declaring both the 
     courts and Congress powerless to compel his compliance. As 
     President Trump flatly stated, ``I have an Article II, where 
     I have the right to do whatever I want as president.'' \77\ 
     President Trump now seeks to excuse his obstruction by 
     falsely claiming that he has been transparent and by hiding 
     behind hypothetical executive privilege claims that he has 
     never invoked and that do not apply.

      A. President Trump's Claim of Transparency Ignores the Facts

       President Trump does not appear to dispute that obstructing 
     Congress during an impeachment investigation is itself an 
     impeachable offense. He instead falsely insists that he ``has 
     been extraordinarily transparent about his interactions with 
     President Zelensky[].'' \78\
       President Trump's transparency claim bears no resemblance 
     to the facts. In no uncertain terms, President Trump has 
     stated that ``we're fighting all the subpoenas [from 
     Congress].'' \79\ Later, through his White House Counsel, 
     President Trump directed the entire Executive Branch to defy 
     the House's subpoenas for documents in the impeachment--and 
     as a result not a single document from the Executive Branch 
     was produced to the House.\80\ He also demanded that his 
     current and former aides refuse to testify--and as a result 
     nine Administration officials under subpoena refused to 
     appear.\81\ That is a cover-up, and there is nothing 
     transparent about it.
       President Trump emphasizes that he publicly released the 
     memorandum of the July 25 call with President Zelensky. But 
     President Trump did so only after the public had already 
     learned that he had put a hold on military aid to Ukraine and 
     after the existence of the Intelligence Community 
     whistleblower complaint became public.\82\ The fact that 
     President Trump selectively released limited information 
     under public pressure, only to obstruct the House's 
     investigation into his corrupt scheme, does not support his 
     assertion of transparency.

  B. President Trump Categorically Refused to Comply with the House's 
                          Impeachment Inquiry

       In an impeachment investigation, the House has a 
     constitutional entitlement to information concerning the 
     President's misconduct. President Trump's categorical 
     obstruction would, if accepted, seriously impair the 
     impeachment process the Framers carefully crafted to guard 
     against Presidential misconduct.\83\
       President Trump asserts that individualized disputes 
     regarding responses to Congressional subpoenas do not rise to 
     the level of an impeachable offense.\84\ But this argument 
     distorts the categorical nature of his refusal to comply with 
     the House's impeachment investigation. President Trump has 
     refused any and all cooperation and ordered his 
     Administration to do the same. No President in our history 
     has so flagrantly undermined the impeachment process.
       President Nixon ordered ``[a]ll members of the White House 
     Staff [to] appear voluntarily when requested by the 
     committee,'' to ``testify under oath,'' and to ``answer fully 
     all proper questions.'' \85\ Even so, the Judiciary Committee 
     voted to impeach him for not fully complying with House 
     subpoenas when he withheld complete responses to certain 
     subpoenas on executive privilege grounds. The Committee 
     emphasized that ``the doctrine of separation of powers cannot 
     justify the withholding of information from an impeachment 
     inquiry'' because ``the very purpose of such an inquiry is to 
     permit the [House], acting on behalf of the people, to curb 
     the excesses of another branch, in this instance the 
     Executive.'' \86\ If President Nixon's obstruction of 
     Congress raised a ``slippery slope'' concern, then President 
     Trump's complete defiance takes us to the ``bottom of the 
     slope, surveying the damage to our Constitution.'' \87\
       President Trump's attempt to fault the House for not using 
     ``other tools at its disposal'' to secure the withheld 
     information--such as seeking judicial enforcement of its 
     subpoenas \88\--is astonishingly disingenuous. President 
     Trump cannot tell the House that it must litigate the 
     validity of its subpoenas while simultaneously telling the 
     courts that they are powerless to enforce them.\89\

 C. President Trump's Assertion of Invented Immunities Does Not Excuse 
                      His Categorical Obstruction

       Having used the power of his office to stonewall the 
     House's impeachment inquiry,
       President Trump has now enlisted his lawyers in the White 
     House Counsel's Office--and coopted his Department of 
     Justice's Office of Legal Counsel--to justify the cover-
     up.\90\ But his lawyers' attempts to excuse his obstruction 
     do not work.
       One fact is essential to recognize: President Trump has 
     never actually invoked executive privilege. That is because, 
     under longstanding law, invoking executive privilege would 
     require President Trump to identify with particularity the 
     documents or communications containing sensitive material 
     that he seeks to protect. Executive privilege generally 
     cannot be used to shield misconduct, and it does not apply 
     here because President Trump and his associates have 
     repeatedly and publicly discussed the same matters he claims 
     must be kept secret.
       President Trump instead maintains that his advisors should 
     be ``absolutely immune'' from compelled Congressional 
     testimony.\91\ But this claim of absolute immunity--which 
     turns on the theory that certain high-level Presidential 
     advisors are ``alter egos'' of the President--cannot possibly 
     justify the decision to withhold the testimony of the lower-
     level agency officials whom President Trump ordered not to 
     testify. Regardless, the so-called absolute immunity theory 
     is an invention of the Executive Branch, and every court to 
     consider this argument has rejected it--including the Supreme 
     Court in an important ruling requiring President Nixon to 
     disclose the Watergate Tapes.\92\ In other words, President 
     Trump's defenses depend on arguments that disgraced former 
     President Nixon litigated and lost.
       President Trump additionally attempts to justify his 
     obstruction on the ground that Executive Branch counsel were 
     barred from attending House depositions.\93\ Of course, the 
     absence of counsel at depositions does not excuse the 
     President's refusal to disclose documents in response to the 
     House's subpoenas. And the decades-old rule excluding agency 
     counsel from House depositions--first adopted by a Republican 
     House of Representatives majority--exists for good reasons. 
     It prevents agency officials implicated in Congressional 
     investigations from misleadingly shaping the testimony of 
     agency employees. It also protects the rights of witnesses to 
     speak freely and without fear of reprisal \94\--a protection 
     indisputably necessary here given that President Trump has 
     repeatedly sought to intimidate and silence witnesses 
     against him.\95\
       President Trump finally maintains that complying with the 
     impeachment inquiry would somehow violate the constitutional 
     separation of powers doctrine.96 This argument is exactly 
     backwards. The President cannot reserve the right to be the 
     arbiter of his own privilege--particularly in an impeachment 
     inquiry designed by the Framers of the Constitution to 
     uncover Presidential misconduct. The fact that President 
     Trump has found lawyers willing to concoct theories on which 
     documents or testimony might be withheld is no basis for his 
     refusal to comply with an impeachment inquiry. The check of 
     impeachment would be little check at all if the law were 
     otherwise.
     III. The House conducted a constitutionally valid impeachment 
         process
       As explained in the House Managers' opening brief, the 
     House conducted a full and fair impeachment proceeding with 
     robust procedural protections for President Trump, which he 
     tellingly chose to ignore. The Committees took 100 hours of 
     deposition testimony from 17 witnesses with personal 
     knowledge of key events, and all Members of the Committees as 
     well as Republican and Democratic staff were permitted to 
     attend and given equal opportunity to ask questions. The 
     Committees heard an additional 30 hours of public testimony 
     from 12 of those witnesses, including three requested by the 
     Republicans.\97\ President Trump's lawyers were invited to 
     participate at the public hearings before the Judiciary 
     Committee.\98\ Rather than do so, he urged the House: ``if 
     you are going to impeach me, do it now, fast, so we can have 
     a fair trial in the Senate.'' \99\
       But faced with his Senate trial, President Trump now cites 
     a host of procedural hurdles that he claims the House failed 
     to satisfy. Nobody should be fooled by this obvious 
     gamesmanship.

[[Page S375]]

  


A. The Constitution Does Not Authorize President Trump to Second Guess 
       the House's Exercise of Its ``Sole Power of Impeachment''

       President Trump's attack on the House's conduct of its 
     impeachment proceedings disregards the text of the 
     Constitution, which gives the House the ``sole Power of 
     Impeachment,'' \100\ and empowers it to ``determine the Rules 
     of its Proceedings.'' \101\ As the Supreme Court has 
     observed, ``the word `sole' ''--which appears only twice in 
     the Constitution--``is of considerable significance.'' \102\ 
     In the context of the Senate's ``sole'' power over 
     impeachment trials, the Court stressed that this term means 
     that authority is ``reposed in the Senate and nowhere else'' 
     \103\ and that the Senate ``alone shall have authority to 
     determine whether an individual should be acquitted or 
     convicted.'' \104\ The House's ``sole Power of Impeachment'' 
     likewise vests it with the independent authority to structure 
     its impeachment proceedings in the manner it deems 
     appropriate. The Constitution leaves no room for President 
     Trump to object to how the House, in the exercise of its 
     ``sole'' power to determine impeachment, conducted its 
     proceedings here.
       President Trump has no basis to assert that the impeachment 
     inquiry was ``flawed from the start'' because it began before 
     a formal House vote was taken.\105\ Neither the Constitution 
     nor the House rules requires such a vote.\106\ And 
     notwithstanding President Trump's refrain that the House's 
     inquiry ``violated every precedent and every principle of 
     fairness followed in impeachment inquiries for more than 150 
     years,'' \107\ House precedent makes clear that an 
     impeachment inquiry does not require a House vote. As even 
     President Trump is forced to acknowledge, several impeachment 
     inquiries conducted in the House ``did not begin with a House 
     resolution authorizing an inquiry.'' \108\ In fact, the House 
     has impeached several federal judges without ever passing 
     such a resolution \109\--and the Senate then convicted and 
     removed them from office.\110\ Here, by contrast, the House 
     adopted a resolution confirming the investigating Committees' 
     authority to conduct their inquiry into ``whether sufficient 
     grounds exist for the House of Representatives to exercise 
     its Constitutional power to impeach Donald John Trump, 
     President of the United States of America.'' \111\
       President Trump is similarly mistaken that a formal 
     ``delegation of authority'' to the Committees was needed at 
     the outset.\112\ The House adopted its Rules \113\--``a power 
     that the Rulemaking Clause [of the Constitution] reserves to 
     each House alone'' \114\--but did not specify rules that 
     would govern impeachment inquiries. It is thus difficult to 
     understand how the House's impeachment inquiry could violate 
     its rules or delegation authority. Not only did Speaker 
     Pelosi instruct the Committees to proceed with an 
     ``impeachment inquiry,'' \115\ but in passing H. Res. 660, 
     the full House ``directed'' the Committees to ``continue 
     their ongoing investigations as part of the existing House of 
     Representatives inquiry'' into impeachment.\116\
       President Trump is wrong that the subpoenas were 
     ``unauthorized and invalid'' because they were not approved 
     in advance by the House.\117\ There is no requirement in 
     either the Constitution or the House Rules that the House 
     vote on subpoenas. Indeed, such a requirement would be 
     inconsistent with the operations of the House, which in 
     modern times largely functions through its Committees.\118\ 
     The absence of specific procedures prescribing how the House 
     and its Committees must conduct impeachment inquiries allows 
     those extraordinary inquiries to be conducted in the manner 
     the House deems most fair, efficient, and appropriate. But 
     even assuming a House vote on the subpoenas was necessary, 
     there was such a vote here. When it adopted H. Res. 660, the 
     House understood that numerous subpoenas had already been 
     issued as part of the impeachment inquiry. As the Report 
     accompanying the Resolution explained, these ``duly 
     authorized subpoenas'' issued to the Executive Branch 
     ``remain in full force.'' \119\

                B. President Trump Received Fair Process

       As his lawyers well know, the various criminal trial rights 
     that President Trump demands have no place in the House's 
     impeachment process.\120\ It is not a trial, much less a 
     criminal trial to which Fifth or Sixth Amendment guarantees 
     would attach. The rights President Trump has demanded have 
     never been recognized in any prior Presidential impeachment 
     investigation, just as they have never been recognized for a 
     person under investigation by a grand jury--a more apt 
     analogy to the House's proceedings here.
       Although President Trump faults the House for not allowing 
     him to participate in depositions and witness interviews, no 
     President has ever been permitted to participate during this 
     initial fact-finding process. For example, the Judiciary 
     Committee during the Nixon impeachment found ``[n]o record . 
     . . of any impeachment inquiry in which the official under 
     investigation participated in the investigation stage 
     preceding commencement of Committee hearings.'' \121\ In both 
     the President Nixon and President Clinton impeachment 
     inquiries, the President's counsel was not permitted to 
     participate in or even attend depositions and interviews of 
     witnesses.\122\ And in both cases, the House relied 
     substantially on investigative findings by special 
     prosecutors and grand juries, neither of which allowed the 
     participation of the target of the investigation.\123\ 
     Indeed, the reasons grand jury proceedings are kept 
     confidential--``to prevent subornation of perjury or 
     tampering with the witnesses who may testify before grand 
     jury'' and ``encourage free and untrammeled disclosures by 
     persons who have information,'' \124\--apply with special 
     force here, given President Trump's chilling pattern of 
     witness intimidation.\125\
       In his litany of process complaints, President Trump 
     notably omits the fact that his counsel could have 
     participated in the proceedings before the Judiciary 
     Committee in multiple ways. The President, through his 
     counsel, could have objected during witness examinations, 
     cross-examined witnesses, and submitted evidence of his 
     own.\126\ President Trump simply chose not to have his 
     counsel do so. Having deliberately chosen not to avail 
     himself of these procedural protections, President Trump 
     cannot now pretend they did not exist.
       Nor is the President entitled to have the charges against 
     him proven beyond a reasonable doubt.\127\ That burden of 
     proof is applicable in criminal trials, where lives and 
     liberties are at stake, not in impeachments. For this reason, 
     the Senate has rejected the proof-beyond-a-reasonable-doubt 
     standard in prior impeachments \128\ and instead has ``left 
     the choice of the applicable standard of proof to each 
     individual Senator.'' \129\ Once again, President Trump's 
     lawyers well know this fact.
       President Trump's contention that the Articles of 
     Impeachment must fail on grounds of ``duplicity'' is wrong. 
     President Trump alleges that the Articles are ``structurally 
     deficient'' because they ``charge[] multiple different acts 
     as possible grounds for sustaining a conviction.'' \130\ But 
     this simply repeats the argument from the impeachment trial 
     of President Clinton, which differed from President Trump's 
     impeachment in this critical respect. Where the articles 
     charged President Clinton with engaging in ``one or more'' of 
     several acts,\131\ the Articles of Impeachment against 
     President Trump do not. This difference distinguishes 
     President Trump's case from President Clinton's--where, in 
     any event, the Senate rejected the effort to have the 
     articles of impeachment dismissed as duplicitous. The bottom 
     line is that the House knew precisely what it was doing when 
     it drafted and adopted the Articles of Impeachment against 
     President Trump, and deliberately avoided the possible 
     problem raised in the impeachment proceedings against 
     President Clinton.
       There was no procedural flaw in the House's impeachment 
     inquiry. But even assuming there were, that would be 
     irrelevant to the Senate's separate exercise of its ``sole 
     Power to try all Impeachments.'' \132\ Any imagined defect in 
     the House's previous proceedings could be cured when the 
     evidence is presented to the Senate at trial. President 
     Trump, after all, touted his desire to ``have a fair trial in 
     the Senate.'' \133\ And as President Trump admits, it is the 
     Senate's ``constitutional duty to decide for itself all 
     matters of law and fact bearing upon this trial.'' \134\ 
     Acquitting President Trump on baseless objections to the 
     House's process would be an abdication by the Senate of this 
     duty.
           Respectfully submitted,
       United States House of Representatives
     Adam B. Schiff,
     Jerrold Nadler,
     Zoe Lofgren,
     Hakeem S. Jeffries
     Val Butler Demings
     Jason Crow,
     Sylvia R. Garcia.
       U.S. House of Representatives Managers.
       January 21, 2020.
       The House Managers wish to acknowledge the assistance of 
     the following individuals in preparing this reply memorandum: 
     Douglas N. Letter, Megan Barbero, Josephine Morse, Adam A. 
     Grogg, William E. Havemann, Jonathan B. Schwartz, Christine 
     L. Coogle, Lily Hsu, and Nate King of the House Office of 
     General Counsel; Daniel Noble, Daniel S. Goldman, and Maher 
     Bitar of the House Permanent Select Committee on 
     Intelligence; Norman L. Eisen, Barry H. Berke, Joshua Matz, 
     and Sophia Brill of the House Committee on the Judiciary; the 
     investigative staff of the House Committee on Oversight and 
     Reform; and David A. O'Neil, Anna A. Moody, David Sarratt, 
     Laura E. O'Neill, and Elizabeth Nielsen.


                                endnotes

       1. U.S. Const., Art. II, Sec. 4.
       2. U.S. Const., Art. I, Sec. 2, cl. 5.
       3. See Alan Dershowitz, The Case Against Impeaching Trump 
     26-27 (2018).
       4. See, e.g., Jonathan Turley, Written Statement, The 
     Impeachment Inquiry into President Donald J. Trump: The 
     ``Constitutional Basis'' for Presidential Impeachment 10-11 
     (Dec. 4, 2019), https://perma.cc/92PY-MBVY; Charlie Savage, 
     `Constitutional Nonsense': Trump's Impeachment Defense Defies 
     Legal Consensus, N.Y. Times (Jan. 20, 2020), https://
perma.cc/76TD-94XT.
       5. Statement of Material Facts para. 121 (Jan. 18, 2020) 
     (Statement of Facts) (filed as an attachment to the House's 
     Trial Memorandum).
       6. Trial Memorandum of President Donald J. Trump at 13 
     (Jan. 20, 2020) (Opp.).
       7. As the then-House Managers explained in President 
     Clinton's impeachment trial, ``[t]he 25th Amendment to the 
     Constitution ensures that impeachment and removal of a 
     President would not overturn an election because it is the 
     elected Vice President who

[[Page S376]]

     would replace the President not the losing presidential 
     candidate.'' Reply of the U.S. House of Representatives to 
     the Trial Mem. of President Clinton, in Proceedings of the 
     United States Senate in the Impeachment Trial of President 
     Willian Jefferson Clinton, Volume II: Floor Trial 
     Proceedings, S. Doc. No. 106-4, at 1001 (1999).
       8. Statement of Facts para. 164.
       9. Opp. at 57 n.383.
       10. Opp. at 1-2.
       11. George Washington, Farewell Address (Sept. 19, 1796), 
     George Washington Papers, Series 2, Letterbooks 1754-1799: 
     Letterbook 24, April 3, 1793-March 3, 1797, Library of 
     Congress.
       12. 2 The Records of the Federal Convention of 1787, at 66 
     (Max Farrand ed., 1911).
       13. Id. at 550.
       14. The Federalist No. 65 (Alexander Hamilton); see The 
     Federalist Nos. 68 (Alexander Hamilton); The Federalist No. 
     69 (Alexander Hamilton).
       15. Opp. at 14-16.
       16. Raoul Berger, Impeachment: The Constitutional Problems 
     67-69 (1973).
       17. 2 Joseph Story, Commentaries on the Constitution of the 
     United States Sec.  762 (1833). The President's brief 
     selectively quotes Blackstone's Commentaries for the 
     proposition that impeachment in Britain required a violation 
     of ``known and established law.'' Opp. at 15. But that 
     reflected the well-known and established nature of the 
     parliamentary impeachment process, not some requirement that 
     the underlying conduct violate a then-existing law. See also 
     4 William Blackstone, Commentaries on the Law of England *5 
     n.7 (1836) (``The word crime has no technical meaning in the 
     law of England. It seems, when it has a reference to positive 
     law, to comprehend those acts which subject the offender to 
     punishment. When the words high crimes and misdemeanors are 
     used in prosecutions by impeachment, the words high crimes 
     have no definite signification, but are used merely to give 
     greater solemnity to the charge.'').
       18. Impeachment of Richard M. Nixon, President of the 
     United States: Report of the Comm. on the Judiciary, H. of 
     Representatives, H. Rep. No. 93-1305, at 139 (1974).
       19. See id. at 136.
       20. Proceedings of the U.S. Senate and the House of 
     Representatives in the Trial of Impeachment of Robert W. 
     Archbald, Vol. II, S. Doc. No. 62-1140, at 1399 (1913).
       21. Extracts from the Journal of the U.S. Senate in All 
     Cases of Impeachment Presented by the House of 
     Representatives, 1798-1904, S. Doc. No. 62-876, at 20-22 
     (1912).
       22. S. Doc. No. 62-1140, at 1401 (1913) (citing 15 The 
     American and English Encyclopedia of Law 1066 (John Houston 
     Merrill ed., 1891)).
       23. See Thomas M. Cooley, The General Principles of 
     Constitutional Law 159 (1880).
       24. 2 Story Sec. 788.
       25. Id. Sec. 762.
       26. James Walker, Alan Dershowitz Said a ``Technical 
     Crime'' Wasn't Needed for Impeachment in Resurfaced 1998 
     Interview, Newsweek (Jan. 20, 2020), https://perma.cc/6JCG-
 2GDW (Dershowitz 1998 Interview).
       27. Dershowtiz at 26-27.
       28. Opp. at 14.
       29. Impeachment of Donald J. Trump, President of the United 
     States: Report of the Comm. on the Judiciary of the H. of 
     Representatives, together with Dissenting Views, to Accompany 
     H. Res. 755, H. Rep. No. 116-346, at 42 n. 207 (2019) 
     (quotation marks omitted); see 2 Story Sec.  794. Notably, 
     President Trump's counsel, Professor Dershowitz, indicated in 
     a recent television appearance that he and Professor Tribe 
     agree on this point. See Dershowitz 1998 Interview, https://
perma.cc/6JCG-2GDW.
       30. See, e.g., Gilmore v. Lewis, 12 Ohio 281, 286 (1843) 
     (For ``public officers, .  .  . [i]t is an indictable 
     offence, in them, to exact and receive any thing, but what 
     the law allows, for the performance of their legal duties,'' 
     because ``at common law, being against sound policy, and, 
     quasi, extortion.''); accord Kick v. Merry, 23 Mo. 72, 75 
     (1856); United States v. Matthews, 173 U.S. 381, 384-85 
     (1899) (collecting cases).
       31. Matter of Office of Mgmt. & Budget--Withholding of 
     Ukraine Sec. Assistance, B-331564 (Comp. Gen. Jan. 16, 2020), 
     https://perma.cc/5CDX-XLX6.
       32. Opp. at 28.
       33. Cramer v. United States, 325 U.S. 1, 30-31 (1945) 
     (Treason); United States v. Sun-DiamondGrowers of California, 
     526 U.S. 398, 404-05 (1999) (Bribery).
       34. Opp. at 30.
       35. See H. Rep. No. 93-1305 (1974).
       36. Ex Parte Grossman, 267 U.S. 87, 122 (1925) (the 
     President could be impeached for using his pardon power in a 
     manner that destroys the Judiciary's power to enforce its 
     orders).
       37. Statement of Facts para. 114.
       38. Opp. at 81.
       39. Statement of Facts para. 121.
       40. Id.
       41. Id. para. 118.
       42. Id. para. 101.
       43. Id. para. 52.
       44. Transcript, Impeachment Inquiry: Ambassador William B. 
     Taylor and George Kent: Hearing Before the H. Permanent 
     Select Comm. on Intelligence, 116th Cong. 35 (Nov. 13, 2019) 
     (statement of Ambassador Taylor).
       45. Transcript, Impeachment Inquiry: Fiona Hill and David 
     Holmes: Hearing Before the H. Permanent Select Comm. on 
     Intelligence, 116th Cong. 18-19 (Nov. 21, 2019) (statement of 
     Mr. Holmes) (``[I]t was made clear that some action on 
     Burisma/Biden investigation was a precondition for an Oval 
     Office visit.'').
       46. See Opp. at 87-88.
       47. Statement of Facts para. 114.
       48. Opp. at 84-85.
       49. Statement of Facts para. 68.
       50. Opp. at 87.
       51. Statement of Facts para. 75-80.
       52. See, e.g., id. para. 52.
       53. See, e.g., id. para. 49-67.
       54. See, e.g., United States v. Kahan, 415 U.S. 239, 240-41 
     (1974) (per curiam).
       55. United States v. Penn, 974 F.2d 1026, 1029 (8th Cir. 
     1992).
       56. Opp. at 89.
       57. As the Supreme Court reiterated in rejecting a 
     different pretextual Trump Administration scheme, when 
     reviewing the Executive's conduct, it is not appropriate ``to 
     exhibit a naivete from which ordinary citizens are free.'' 
     Dep't of Commerce v. New York, 139 S. Ct. 2551, 2575 (2019) 
     (quoting United States v. Stanchich, 550 F.2d 1294, 1300 (2d 
     Cir. 1977) (Friendly, J.)).
       58. Statement of Facts para. 18. President Trump's brief 
     never addresses the role of Mr. Giuliani, who served as 
     President Trump's principal agent in seeking an announcement 
     of the investigations.
       59. Id. 59.
       60. Id. 131.
       61. After Congress began investigating President Trump's 
     conduct, the White House Counsel's Office reportedly 
     conducted an internal review of ``hundreds of documents,'' 
     which ``reveal[ed] extensive efforts to generate an after-
     the-fact justification'' for the hold ordered by President 
     Trump. Josh Dawsey et al., White House Review Turns Up Emails 
     Showing Extensive Effort to Justify Trump's Decision to Block 
     Ukraine Military Aid, Wash. Post (Nov. 24, 2019), https://
perma.cc/99TX-5KFE. These documents would be highly relevant 
     in this Senate trial.
       62. See Statement of Facts para. 88.
       63. Id. para. 88.
       64. Opp. at 94-95.
       65. Opp. at 94.
       66. Statement of Facts para. 81, 144-45.
       67. See id. para.para. 41-48.
       68. See id. para.para. 30-32.
       69. See id.
       70. See id. para. 131.
       71. Id.
       72. Id. para. 13.
       73. Id. para. 14.
       74. `Thank God': Putin thrilled U.S. `political battles' 
     over Ukraine taking focus off Russia, Associated Press (Nov. 
     20, 2019), https://perma.cc/7ZHY-44CY.
       75. Opp. at 100.
       76. U.S. Const., Art. I, Sec. 2, cl. 5.
       77. Statement of Facts para. 164.
       78. Opp. at 35.
       79. Statement of Facts para. 164.
       80. Id. para.para. 179-83.
       81. Id. para.para. 186-87.
       82. See Michael D. Shear & Maggie Haberman, Do Us a 
     Favor'': Call Shows Trump's Interest in Using U.S. Power for 
     His Gain, N.Y. Times (Sept. 25, 2019), https://perma.cc/B7P9-
 BPK2; Karoun Demirjian et al., Trump Ordered Hold on Military 
     Aid Days Before Calling Ukrainian President, Officials Say, 
     Wash. Post (Sept. 23, 2019), https://perma.cc/N7PQ-K9WB; 
     Letter from Michael K. Atkinson, Inspector Gen. of the 
     Intelligence Community, to Chairman Adam Schiff, House 
     Permanent Select Comm. on Intelligence, and Ranking Member 
     Devin Nunes, House Permanent Select Comm. on Intelligence 
     (Sept. 9, 2019), https://perma.cc/K78N-SMRR.
       83. See The Federalist No. 69 (Alexander Hamilton).
       84. Opp. at 48-54.
       85. Remarks by President Nixon (Apr. 17, 1973), reprinted 
     in Statement of Information: Hearings Before the Comm. on the 
     Judiciary, H. of Representatives: Book IV--Part 2, Events 
     Following the Watergate Break-in (1974).
       86. H. Rep. No. 93-1305, at 208 (1974).
       87. H. Rep. No. 116-346, at 161. President Trump's new 
     lawyer, Kenneth Starr similarly argued that President 
     Clinton's assertion of executive privilege in grand jury 
     proceedings, which ``thereby delayed any potential 
     congressional proceedings,'' constituted conduct 
     ``inconsistent with the President's Constitutional duty to 
     faithfully execute the laws. Communication from Kenneth W. 
     Starr, Independent Counsel, Transmitting a Referral to the 
     United States House of Representatives Filed in Conformity 
     with the Requirements of Title 28, United States Code, 
     Section 595(c), H. Doc. No. 105-310, at 129, 204 (1998).
       88. Opp. at 48-49 & n.336.
       89. See Statement of Facts 192; Def.'s Mot. to Dismiss, or 
     in the Alternative, for Summ. J. at 20, Kupperman v. U.S. 
     House of Representatives, No. 19-3224 (D.D.C. Nov. 14, 2019), 
     ECF No. 40; Defs.' and Def.-Intervenors' Mot. to Dismiss at 
     46-47, Comm. on Ways & Means v. U.S. Dep't of the Treasury, 
     No. 19-1974 (D.D.C. Sept. 6, 2019), ECF No. 44; see also 
     Brief for Def.-Appellant at 2, 3233, Comm. on the Judiciary 
     v. McGahn, No. 19-5331 (D.C. Cir. Dec. 9, 2019).
       90. Opp. app'x C (House Committees' Authority to 
     Investigate for Impeachment, 44 Op. O.L.C. (2020)) at 1-2, 37 
     (opining that the House's impeachment investigation was not 
     authorized under the House's ``sole Power of Impeachment,'' 
     U.S. Const., Art. I, Sec. 2, cl. 5).
       91. See Opp. at 43-44.
       92. See United States v. Nixon, 418 U.S. 683, 706 (1974) 
     (``neither the doctrine of separation of powers, nor the need 
     for confidentiality of high-level communications, without 
     more, can sustain an absolute, unqualified Presidential 
     privilege of immunity from judicial process'').
       93. Opp. at 46-47.
       94. See H. Rep. No. 116-346, at 544.
       95. See, e.g., Statement of Facts para. 190.
       96 Opp. at 36; see id. at 48-54.

[[Page S377]]

  

       97. See Statement of Facts para.para. 188-89; H. Rep. No. 
     116-346, at 130.
       98. Statement of FactsA6.176.
       99. H. Rep. No. 116-346, at 12 (quoting Letter from Pat A. 
     Cipollone, Counsel to the President, to Jerrold Nadler, 
     Chairman, H. Comm. on the Judiciary (Dec. 6, 2019)).
       100. U.S. Const., Art. I, Sec. 2, cl. 5.
       101. U.S. Const., Art. I, Sec. 5, cl. 2.
       102. Nixon v. United States, 506 U.S. 224, 230 (1993).
       103. Id. at 229.
       104. Id. at 231.
       105. Opp. at 4.
       106. One district court presented with this same argument 
     recently concluded that ``[i]n cases of presidential 
     impeachment, a House resolution has never, in fact, been 
     required to begin an impeachment inquiry,'' explaining that 
     the argument ``has no textual support in the U.S. 
     Constitution [or] the governing rules of the House.'' In re 
     Application of Comm. on Judiciary, U.S. House of 
     Representatives, for an Order Authorizing Release of Certain 
     Grand Jury Materials, No. 19-48 (BAH), 2019 WL 5485221, at 
     *27 (D.D.C. Oct. 25, 2019). Although both President Trump and 
     the Office of Legal Counsel of the Department of Justice go 
     to great lengths to criticize the district court's analysis, 
     see, e.g., Opp. app'x C at 38 n.261, the Department of 
     Justice tellingly has declined to advance these arguments in 
     litigation on the appeal of this decision.
       107. Opp. at 1.
       108. Opp. at 41.
       109. See In re Application of Comm. on Judiciary, 2019 WL 
     5485221, at *26 (citing proceedings relating to Judges Walter 
     Nixon, Alcee Hastings, and Harry Claiborne).
       110. See Proceedings in the United States Senate in the 
     Impeachment Trial of Walter Nixon, Jr., a Judge of the United 
     States District Court for the Southern District of 
     Mississippi, S. Doc. No. 101-22, at 439 (1989); Proceedings 
     of the United States Senate in the Impeachment Trial of Alcee 
     L. Hastings, a Judge of the United States District Court for 
     the Southern District of Florida, S. Doc. No. 101-18, at 705 
     (1989); Proceedings of the United States Senate in the 
     Impeachment Trial of Harry E. Claiborne, a Judge of the 
     United States District Court for the District of Nevada, S. 
     Doc. No. 99-48, at 298 (1986).
       111. H. Res. 660, 116th Cong. (2019); Statement of Facts 
     para. 162.
       112. See Opp. at 37-38.
       113. See H. Res. 6, 116th Cong. (2019).
       114. Barker v. Conroy, 921 F.3d 1118, 1130 (D.C. Cir. 2019) 
     (quotation marks omitted).
       115. Statement of Facts para. 161.
       116. Id. para. 162; see H. Res. 660.
       117. Opp. at 37; see Opp. at 41.
       118. See, e.g., House Rule XI.1(b)(1) (authorizing standing 
     committees of the House to ``conduct at any time such 
     investigations and studies as [they] consider[] necessary or 
     appropriate''); see also id. X1.2(m)(1)(B) (authorizing 
     committees to ``require, by subpoena or otherwise, the 
     attendance and testimony of such witnesses and the production 
     of such books, records, correspondence, memoranda, papers, 
     and documents as [they] consider[] necessary'').
       119. Directing Certain Committees to Continue Their Ongoing 
     Investigations as Part of the Existing House of 
     Representatives Inquiry into Whether Sufficient Grounds Exist 
     for the House of Representatives to Exercise its 
     Constitutional Power to Impeach Donald John Trump, President 
     of the United States of America, and for Other Purposes, H. 
     Rep. No. 116-266, at 3 (2019).
       120. Opp. at 57.
       121. H. Rep. No. 116-346, at 19 (quoting Impeachment 
     Inquiry Staff, H. Comm. on the Judiciary, Memorandum: 
     Presentation Procedures for the Impeachment Inquiry 11, 93d 
     Cong. (1974)).
       122. Id. at 19, 21.
       123. See id. at 17-22.
       124. United States v. Procter & Gamble Co., 356 U.S. 677, 
     681 n.6 (1958).
       125. Statement of Facts para.para. 177, 190.
       126. Statement of Facts para. 163; 165 Cong. Rec. E1357 
     (2019) (Impeachment Inquiry Procedures in the Committee on 
     the Judiciary Pursuant to H. Res. 660); see id. at (A)(3), 
     (B)(2)-(3), (C)(1)-(2), (4).
       127. Opp. at 20-21.
       128. See, e.g., 132 Cong. Rec. S29124-94 (daily ed. October 
     7, 1986).
       129. Cong. Research Serv., 98-990 A, Standard of Proof in 
     Senate Impeachment Proceedings 6 (1999), https://perma.cc/
9YKG-TJLH.
       130. Opp. at 107-09.
       131. H. Res. 611, 105th Cong. (1998).
       132. U.S. Const., Art. I, Sec. 3, cl. 6. See also Nixon v. 
     United States, 506 U.S. 224, 229-31 (1993).
       133. H. Rep. No. 116-346, at 12 (quoting Letter from Pat A. 
     Cipollone, Counsel to the President, to Jerrold Nadler, 
     Chairman, H. Comm. on the Judiciary (Dec. 6, 2019)).
       134. Opp. at 13.

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


                        Privileges of the Floor

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


                 Floor Privileges During Closed Session

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


 =========================== NOTE =========================== 

  
  On page S377, January 21, 2020, third column, the following 
appears: Jeff Minear, Clerk for the Chief Justice
  
  The online Record has been corrected to read: Jeff Minear, 
Counselor to the Chief Justice


 ========================= END NOTE ========================= 


                                Program

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

                          ____________________