[Congressional Record Volume 166, Number 39 (Thursday, February 27, 2020)]
[Senate]
[Pages S1184-S1212]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              IMPEACHMENT

  Mr. REED. Mr. President, I ask unanimous consent to have my opinion 
memorandum in the impeachment trial of President Donald John Trump 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    Opinion Memorandum of United States Senator John F. Reed in the 
            Impeachment Trial of President Donald John Trump


                              I. FINDINGS

       Based on the evidence in the record, the arguments of the 
     House Impeachment Managers, and the arguments of the 
     President's Counsel, I conclude as follows: The President has 
     violated his constitutional oath to ``take care that the laws 
     be faithfully executed'' and placed his personal and 
     political interests above the interests of the United States. 
     The House Impeachment Managers have proven that the 
     President's abuse of power and congressional obstruction 
     amount to the constitutional standard of ``high Crimes and 
     Misdemeanors'' for which the sole remedy is conviction and 
     removal from office.


                       II. STATEMENT OF THE FACTS

       On December 18, 2019, the United States House of 
     Representatives passed H. Res. 755,\1\ ``Impeaching Donald 
     John Trump, President of the United States, for high crimes 
     and misdemeanors.'' H. Res. 755 contains two Articles of 
     Impeachment. The first Article declares that the President 
     abused his power by soliciting foreign interference to help 
     his bid for reelection in the 2020 United States presidential 
     election and conditioning United States government acts of 
     significant value on the foreign power's cooperation. The 
     second Article declares that the President obstructed 
     Congress by directing the categorical, indiscriminate 
     defiance of subpoenas for witness testimony and documents 
     deemed vital to the House Impeachment inquiry.
       Pursuant to Article I, Section 3 of the United States 
     Constitution, the United States Senate convened as a Court of 
     Impeachment on January 16, 2020, and each Senator took an 
     oath to ``do impartial justice according to the Constitution 
     and laws.'' \2\ Alexander Hamilton spoke about the Senate's 
     role in an Impeachment trial in Federalist Paper No. 65, when 
     he wrote, ``What other body would be likely to feel 
     confidence enough in its own situation, to preserve unawed 
     and uninfluenced the necessary impartiality between an 
     individual accused and the representatives of the people, his 
     accusers?'' \3\
       The obligation of the Senate is to accord the President, as 
     the accused, the right to conduct his defense fairly, while 
     respecting the House's exclusive constitutional prerogative 
     to bring Articles of Impeachment. At the core of the Senate's 
     task is the fundamental understanding that our system of laws 
     recognizes the rights of defendants and the responsibilities 
     of the prosecution to prove its case. Such a basic tenet of 
     our law and our experience as a free people does not 
     evaporate in the rarified atmosphere of a Court of 
     Impeachment, simply because the accused is the President and 
     the accuser is the House of Representatives.


            III. THE CONSTITUTIONAL GROUNDS FOR IMPEACHMENT

       ``The Senate shall have the sole Power to try all 
     Impeachments.'' \4\ With these few words, the Framers of the 
     Constitution entrusted the Senate with the most awesome power 
     within a democratic society: whether to remove an impeached 
     President from office.
     A. High Crimes and Misdemeanors
       The Constitution states, ``The President, Vice President 
     and all civil Officers of the United States, shall be removed 
     from Office on Impeachment for, and Conviction of, Treason, 
     Bribery, or other high Crimes and Misdemeanors.'' \5\
       ``Treason'' and ``Bribery'' are foundational impeachable 
     offenses. No more heinous example of an offense against the 
     constitutional order exists than betrayal of the nation to an 
     enemy or betrayal of duty for personal enrichment. A 
     President commits treason when he levies war against the 
     United States or gives comfort or aid to its enemies.\6\ As 
     the House Judiciary Committee explains, a President engages 
     in impeachable bribery when he ``offers, solicits, or accepts 
     something of personal value to influence his own official 
     actions.'' \7\
       In interpreting ``high Crimes and Misdemeanors,'' we must 
     not only look to the

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     Federalist Papers and the records of the Constitutional 
     Convention, but also to the contemporary and foundational 
     writings on Impeachment available to the Framers.
       Sir William Blackstone, whose influential Commentaries on 
     the Laws of England were published from 1765-1770, discussed 
     a classification of crimes he termed ``public wrongs, or 
     crimes and misdemeanors'' that he defined as breaches of the 
     public duty that an individual owed to their entire 
     community.\8\ Blackstone viewed treason, murder, and robbery 
     as ``public wrongs'' not only because they cause injury to 
     individuals but also because they ``strike at the very being 
     of society.'' \9\
       Richard Wooddeson, a legal scholar who began giving 
     lectures on English law in 1777, defined impeachable offenses 
     as misdeeds that fail to clearly fall under the jurisdiction 
     of ordinary tribunals. These wrongs were ``abuse[s] of high 
     offices of trust'' that damaged the commonwealth.\10\
       Much the same as Blackstone and Wooddeson, Alexander 
     Hamilton included the dual components of abuse of public 
     trust and national harm in his definition of impeachable 
     crimes and misdemeanors. In Federalist Paper No. 65, Hamilton 
     defined an impeachable offense as ``those offenses which 
     proceed from the misconduct of public men, or in other words 
     from the abuse or violation of some public trust. They are of 
     a nature which may with peculiar propriety be denominated 
     POLITICAL, as they relate chiefly to injuries done 
     immediately to the society itself.'' \11\
     B. The Constitutional Debates
       Adding impressive support to these consistent views of the 
     meaning of the constitutional term, ``high Crimes and 
     Misdemeanors,'' is the history of the deliberations at the 
     Constitutional Convention.
       The convention delegates considered limiting Impeachment to 
     treason and bribery. However, they concluded that these 
     enumerated offenses alone could not anticipate every manner 
     of profound misconduct that a future President might engage 
     in.\12\ George Mason, a delegate from Virginia, declared that 
     ``high crimes and misdemeanors'' would be an apt way to 
     further capture ``great and dangerous offences'' or 
     ``[a]ttempts to subvert the Constitution.'' \13\
       This wording would also set the necessarily high threshold 
     for Impeachment that would be proportional to the severe 
     punishment of removing an elected official and 
     disqualification from holding future public office.
       Further insight is provided by James Iredell, a delegate to 
     the North Carolina Convention that ratified the Constitution, 
     who later served as a Justice of the United States Supreme 
     Court. During the Convention debates, Iredell stated:
       The power of impeachment is given by this Constitution, to 
     bring great offenders to punishment . . . This power is 
     lodged in those who represent the great body of the people, 
     because the occasion for its exercise will arise from acts of 
     great injury to the community, and the objects of it may be 
     such as cannot be easily reached by an ordinary tribunal.\14\
       Iredell's understanding sustains the view that an 
     impeachable offense must cause ``great injury to the 
     community.'' Private wrongdoing, without a significant, 
     adverse effect upon the nation, cannot constitute an 
     impeachable offense. James Wilson, a delegate to the Federal 
     Constitutional Convention and, like Iredell, later a Supreme 
     Court Justice, wrote that Impeachments are ``proceedings of a 
     political nature . . . confined to political characters, to 
     political crimes and misdemeanors, and to political 
     punishments.'' \15\
       Later commentators expressed similar views. In 1833, 
     Justice Joseph Story quoted favorably from the scholarship of 
     William Rawle, who concluded that the ``legitimate causes of 
     impeachment . . . can have reference only to public 
     character, and official duty . . . In general, those 
     offenses, which may be committed equally by a private person, 
     as a public officer, are not the subject of impeachment.'' 
     \16\
       This line of reasoning is buttressed by the careful and 
     thoughtful work of the House of Representatives during the 
     Watergate proceedings. The Democratic staff of the House 
     Judiciary Committee concluded that, ``Because impeachment of 
     a President is a grave step for the nation, it is to be 
     predicated only upon conduct seriously incompatible with 
     either the constitutional form and principles of our 
     government or the proper performance of constitutional duties 
     of the presidential office.'' \17\
       The deliberations at the Constitutional Convention also 
     demonstrate a conscious movement to narrow the terminology as 
     a means of raising the threshold for the Impeachment process 
     to require an offense against the State.
       Early in the debate on the issue of presidential 
     Impeachment in July of 1787, it was suggested that 
     Impeachment and removal could be founded on a showing of 
     ``malpractice,'' ``neglect of duty,'' or ``corruption.'' \18\ 
     By September of 1787, the issue of presidential Impeachment 
     had been referred to the Committee of Eleven, which was 
     created to resolve the most contentious issues. The Committee 
     of Eleven considered whether the grounds for Impeachment 
     should be ``treason or bribery.'' \19\ This was significantly 
     more restricted than the amorphous standard of 
     ``malpractice,'' too restricted, in fact, for some delegates. 
     George Mason objected and suggested that 
     ``maladministration'' be added to ``treason and bribery.'' 
     \20\ This suggestion was opposed by Madison as being 
     ``equivalent to a tenure during pleasure of the Senate.'' 
     \21\ Mason responded by further refining his suggestion and 
     offered the term ``other high crimes and misdemeanors against 
     the State.'' \22\ The Mason language was a clear reference to 
     the English legal history of Impeachment. Mason's proposal 
     explicitly narrowed these offenses to those ``against the 
     State.'' The Convention itself further clarified the standard 
     by replacing ``State'' with the ``United States.'' \23\
       At the conclusion of the substantive deliberations on the 
     constitutional standard of Impeachment, it was obvious that 
     only serious offenses against the governmental system would 
     justify Impeachment and subsequent removal from office. 
     However, the final stylistic touches to the Constitution were 
     applied by the Committee of Style. This Committee had no 
     authority to alter the meaning of the carefully debated 
     language, but could only impose a stylistic consistency 
     through, among other things, the elimination of redundancy. 
     In its zeal to streamline the text, the words ``against the 
     United States'' were eliminated as unnecessary to the meaning 
     of the passage.\24\
       The weight of both authoritative commentary and the history 
     of the Constitutional Convention combines to provide 
     convincing proof that the Impeachment process was reserved 
     for serious breaches of the constitutional order that 
     threaten the country in a direct and immediate manner.
     C. An Impeachable Offense is Not Limited to Criminal 
         Liability or A Defined Offense
       In the case before us, the President's Counsel wholly 
     reject a longstanding understanding of Impeachment, by 
     arguing that abuse of power is not an impeachable offense and 
     by positing that ``the Framers restricted impeachment to 
     specific offenses against `already known and established 
     law.' '' \25\
       This assertion is clearly wrong. Article I, Section 3 of 
     the United States Constitution provides that ``Judgment in 
     Cases of Impeachment shall not extend further than to removal 
     from Office, and disqualification to hold and enjoy any 
     Office of honor, Trust or Profit under the United States: but 
     the Party convicted shall nevertheless be liable and subject 
     to Indictment, Trial, Judgment and Punishment, according to 
     Law.'' \26\ As Delegate James Wilson wrote, ``impeachments, 
     and offenses and offenders impeachable ``[do not come] within 
     the sphere of ordinary jurisprudence. They are founded on 
     different principles, are governed by different maxims, and 
     are directed to different objects: for this reason, the trial 
     and punishment of an offense on an impeachment, is no bar to 
     a trial and punishment of the same offence at common law.'' 
     \27\ The independence of the Impeachment process from the 
     prosecution of crimes underscores the function of Impeachment 
     as a means to remove a President from office, not only 
     because of criminal behavior, but because the President 
     poses a threat to the constitutional order. Criminal 
     behavior is not irrelevant to an Impeachment, but it only 
     becomes decisive if that behavior imperils the balance of 
     powers established in the Constitution.
       The assertion that an impeachable offense must be 
     predicated on a criminal act goes against the well-
     established consensus of the legal community. For example, 
     the argument by President's Counsel is undercut by the 
     President's current Attorney General, William Barr. Mr. Barr 
     wrote in a 2018 memo to the Department of Justice (DOJ) when 
     he was still in private practice, that the President ``is 
     answerable for any abuses of discretion and is ultimately 
     subject to the judgment of Congress through the impeachment 
     process [which] means that the president is not the judge in 
     his own cause.'' \28\ As Mr. Barr makes clear, Impeachment 
     does not need to be based on a crime.
       Furthermore, the assertion that an impeachable offense must 
     involve the violation of an ``already known or established'' 
     law, even if not criminal, is not supported by the 
     constitutional record. In advocating for the inclusion of 
     Impeachment at the Constitutional Convention, James Madison 
     made the case that the country must be protected against any 
     number of abuses that a President could engage in and which 
     might cause permanent damage to the country. Madison wrote 
     that:
       [It was] indispensable that some provision should be made 
     for defending the Community [against] the incapacity, 
     negligence or perfidy of the chief Magistrate. The limitation 
     of the period of his service, was not a sufficient security . 
     . . He might pervert his administration into a scheme of 
     peculation or oppression. He might betray his trust to 
     foreign powers.\29\
       Confining Impeachment to criminal or even codified offenses 
     goes against the mainstream consensus on the meaning of 
     ``high Crimes and Misdemeanors'' and would fail to capture 
     the universe of harms to the constitutional order in which a 
     President could engage.
     D. Impeachment as a Remedy for Corrupting Foreign Influence
       The Founders were also gravely concerned about the dangers 
     of foreign influence corrupting our elections and interfering 
     with the rule of law.\30\ The United States was then a 
     fledging union that had just gained independence from 
     Britain, with help from the French during the American 
     Revolution. As

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     such, the Founders rightly feared that foreign governments 
     might try to exploit American politics in order to further 
     their own interests. During the Constitutional Convention, 
     Elbridge Gerry, a delegate from Massachusetts, warned that 
     ``[f]oreign powers will intermeddle in our affairs, and spare 
     no expence to influence them.'' \31\
       The Founders were also acutely aware of the potential for 
     public officials to betray their office to a foreign power, 
     if the temptation were strong enough. Hamilton conceded in 
     Federalist Paper No. 22 that ``[o]ne of the weak sides of 
     republics, among their numerous advantages, is that they 
     afford too easy an inlet to foreign corruption.'' \32\ In 
     Hamilton's view, when ordinary men are elevated by their 
     fellow citizens to high office, they ``may find compensations 
     for betraying their trust, which to any but minds animated 
     and guided by superior virtue, may appear to exceed the 
     proportion of interest they have in the common stock, and to 
     over-balance the obligations of duty. Hence it is that 
     history furnishes us with so many mortifying examples of the 
     prevalency of foreign corruption in republican governments.'' 
     \33\
     E. Conclusion
       Authoritative commentary on, together with the structure 
     of, the Constitution makes it clear that the term, ``other 
     high Crimes and Misdemeanors,'' encompasses conduct that 
     involves the President in the impermissible exercise of the 
     powers of his office to upset the constitutional order. 
     Moreover, since the essence of Impeachment is removal from 
     office, rather than punishment for offenses, there is a 
     strong inference that the improper conduct must represent a 
     continuing threat to the American people and the 
     Constitution. It must be an episode that either cannot be 
     dealt with in the Courts or that raises generalized concerns 
     about the continued service of the President, as is the case 
     presented here.


                         IV. STANDARD OF PROOF

       In an Impeachment trial, each Senator has the obligation to 
     establish the burden of proof he or she deems proper.\34\ The 
     Founding Fathers believed maximum discretion was critical for 
     Senators confronting the gravest of constitutional 
     choices.\35\ Differentiating Impeachment from criminal 
     trials, Alexander Hamilton argued, in Federalist Paper No. 
     65, that Impeachments ``can never be tied down by such strict 
     rules . . . as in common cases serve to limit the discretion 
     of courts in favor of personal security.'' \36\ In this 
     regard, Hamilton further distinguished Impeachment 
     proceedings from a criminal trial by stressing that an 
     impeached official would be subject to the established rules 
     of criminal prosecution after Impeachment.\37\
       During the Clinton Impeachment trial, I believed, as I do 
     now, that the House Impeachment Managers bear the burden of 
     proving their case.\38\ In that trial, the House Impeachment 
     Managers asserted that the Senators should reach a conclusion 
     utilizing a beyond a reasonable doubt standard before voting 
     to convict the President. The House Impeachment Managers, 
     explicitly stated, ``none of us, would argue . . . that the 
     President should be removed from office unless you conclude 
     he committed the crimes that he is alleged to have 
     committed.'' \39\ I chose that standard of proof during that 
     trial.\40\ As I stated then, ``[h]ad the charges of th[at] 
     case involved threats to our constitutional order not readily 
     characterized by criminal charges, I would have been forced 
     to further parse an exact standard. However, for all 
     practical purposes, the Managers have themselves established 
     the burden of proof in [the Clinton Impeachment] case.'' \41\
       As the charges in this case against President Trump cut to 
     the core of our constitutional order, I believe that I am now 
     required to offer further analysis on which standard of proof 
     to apply.
       While the House Impeachment Managers in the current trial 
     did not provide a single standard of proof required for 
     conviction and removal, it was clear that the bar they set 
     was quite high, which is appropriate. However, what exact 
     constitutional standard should be used remains debatable. 
     Practical concerns related to utilizing the Impeachment power 
     should be considered when determining the standard of proof 
     required. Too low of a standard may lead to removal, even if 
     significant doubts exist. A ``. . . high `criminal' standard 
     of proof could mean, in practice, that a man could remain 
     president whom every member of the Senate believed to be 
     guilty of corruption, just because his guilt was not shown 
     `beyond a reasonable doubt.' '' \42\
       When uncertain about the standard of proof to apply, it is 
     worth reviewing the writings of eminent scholars. In doing 
     so, I have found a closer approximation to what the standard 
     should be in many Impeachment trials as compared to those 
     used in general legal practice: `` `[o]verwhelming 
     preponderance of the evidence' . . .'' \43\ Yet, I believe 
     that the severity of removing a President of the United 
     States warrants an even higher bar. As such, a definition 
     slightly modified, but modeled on that proposed standard, is 
     more applicable: overwhelmingly clear and convincing 
     evidence.
       This standard more closely comports with historical 
     analysis of the Founders' desire to separate criminal law and 
     Impeachment, and the arguments made by scholars, while 
     reflecting the serious constitutional harms alleged in the 
     Articles of Impeachment before the Senate. Further, after 
     review of substantive differences between the Articles of 
     Impeachment that allege President Trump's dire and ongoing 
     threat to our constitutional order and the Articles of 
     Impeachment levied against President Clinton--which could be 
     more readily applied by analogy to criminal law--a different 
     standard is clearly warranted. In a future case, if Articles 
     of Impeachment contain a set of facts or allegations not 
     contemplated in either the Clinton Impeachment trial or in 
     this case, I will likely have to revisit this analysis.
       The Articles, embodied in H. Res. 755, accuse the President 
     of abuse of power and obstruction of Congress. After reading 
     the materials and hearing the arguments presented at trial, I 
     conclude that the evidence presented at trial was more than 
     compelling. Indeed, it was overwhelmingly clear and 
     convincing. Having concluded that the charges of abuse of 
     power and obstruction of Congress rise to the level of ``high 
     Crimes and Misdemeanors,'' an analysis of the specific 
     charges is necessary.


                      V. ARTICLE I: ABUSE OF POWER

       Article I of House Resolution 755 provides that, in the 
     conduct of his office, the President abused his presidential 
     powers, in violation of his constitutional duty to take care 
     that the laws be faithfully executed, through a scheme, or 
     course of conduct, to solicit interference of a foreign 
     government, Ukraine, in the 2020 U.S. presidential election 
     for personal political gain. The scheme included President 
     Trump soliciting the Government of Ukraine to publicly 
     announce investigations that would influence the 2020 U.S. 
     presidential election to his advantage and the disadvantage 
     of a potential political opponent in that election. Article I 
     provides further that President Trump, for corrupt purposes, 
     used the powers of the Office in a manner that injured the 
     vital national interests of the United States by harming the 
     integrity of the democratic process and compromising U.S. 
     national security. As I will further explain, the conduct 
     described in Article I amounts to an abuse of power and shows 
     that President Trump remains an ongoing threat to the 
     national interest if allowed to remain in office.
     A. Abuse of Power Is an Impeachable Offense
       A cardinal American principle that emerged during the 
     drafting of the Constitution is that no one is above the law. 
     As discussed in the previous section, this principle was a 
     chief subject of debate at the Constitutional Convention. The 
     Framers understood that power corrupts and they would need to 
     build guardrails to protect the public good from a would-be 
     authoritarian. The Framers were reacting to the overreach of 
     King George III.
       Yet, the President's Counsel argue that Impeachment is not 
     an appropriate remedy for abuse of power, arguing that the 
     Framers were not concerned about violations of the public 
     trust. The President's Counsel instead argue that the Framers 
     were primarily concerned about an Executive that would be 
     beholden to a heavy-handed legislature. Indeed, during the 
     debates at the Constitutional Convention, this fear was 
     raised by opponents of Impeachment. Rufus King, a delegate 
     from Massachusetts, said ``[impeachment by Congress] would be 
     destructive of his independence and of the principles of the 
     Constitution. He relied on the vigor of the Executive as a 
     great security for the public liberties.'' \44\ Clearly, 
     King's arguments did not carry the day.
       In drafting the Constitution, the Framers had carefully 
     calibrated the powers between Congress and the Executive. 
     Ultimately, they decided that they could not leave the nation 
     without any recourse against a President who would be in a 
     unique and potent position to engage in any number of abusive 
     acts. Without a mechanism to keep an out-of-control President 
     in check, there was little binding him to the law. Hamilton 
     underscored the importance of the Impeachment process for 
     holding the President liable by drawing a contrast with the 
     British monarchy, for whom ``there is no constitutional 
     tribunal to which he is amenable.'' \45\
       George Mason, a delegate from Virginia, underscores abuse 
     of power as one of the key reasons for the need for 
     presidential Impeachment, asking ``Shall any man be above 
     Justice? Above all shall that man be above it, who can commit 
     the most extensive injustice?'' \46\ Edmund Randolph, another 
     delegate from Virginia, concurred, noting that ``[t]he 
     Executive will have great opportunitys of abusing his 
     power[,]'' and in such instances ``[g]uilt wherever found 
     ought to be punished.'' \47\
       The Framers debate on these matters was prescient, as 
     public officials have, in fact, been found to have committed 
     impeachable offenses including abuse of power. Most well-
     known, President Nixon resigned after the House Judiciary 
     Committee (hereinafter known as ``Judiciary Committee'') 
     found he had abused his powers on multiple occasions.\48\ 
     Three district judges were also impeached during the 20th 
     century for abusing their power. In impeaching these judges, 
     the House used ``abuse of power'' to describe misconduct 
     ranging from the unlawful use of contempt of court, to the 
     ordering of a jury to find a defendant guilty, to the 
     improper appointing of an associate to an official 
     position.\49\
       In stark contrast to the positions of the Framers, the 
     President's Counsel argue that a President who does something 
     to benefit himself in a reelection, if he thinks it is in the 
     nation's interest, has not committed an impeachable offense. 
     This is not a credible argument because under this view, the 
     President would have free reign to solicit foreign

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     interference, unlawfully withhold security assistance, use 
     his powers to target his political opponents and engage in a 
     whole host of corrupt conduct that might help him get 
     reelected. This rings all too familiar of President Nixon 
     when he said ``Well, when the president does it that means 
     that it is not illegal.'' \50\

                   A.1. Definition of Abuse of Power

       Black's Law Dictionary defines ``abuse of power'' as 
     including ``The misuse or improper exercise of one's 
     authority; esp., the exercise of a statutorily or otherwise 
     duly conferred authority in a way that is tortious, unlawful 
     or outside its proper scope.'' \51\
       In its Impeachment inquiry of President Richard Nixon, the 
     Judiciary Committee found the President repeatedly abused his 
     power while in office.\52\ Among its findings, the Judiciary 
     Committee determined that President Nixon unlawfully directed 
     or authorized federal agencies, including the Internal 
     Revenue Service and the Federal Bureau of Investigation, to 
     investigate and surveil American citizens, and used the 
     resulting information for his own political purposes.\53\ The 
     Judiciary Committee further found that Nixon then interfered 
     with investigations into these and other actions to conceal 
     his misconduct, and stressed that Nixon's actions in all of 
     these instances ``served no valid national policy 
     objective.'' \54\
       The Judiciary Committee concluded that the ``conduct of 
     Richard M. Nixon has constituted a repeated and continuing 
     abuse of the powers of the presidency in disregard of the 
     fundamental principle of the rule of law in our system of 
     government. This abuse of the powers of the President was 
     carried out by Richard M. Nixon, acting personally and 
     through his subordinates, for his own political advantage, 
     not for any legitimate governmental purpose and without due 
     consideration for the national good.'' \55\
       In the current Impeachment of President Trump, the 
     Judiciary Committee has defined abuse of power as occurring 
     ``when a President exercises the powers of his office to 
     obtain an improper personal benefit while injuring and 
     ignoring the national interest.'' \56\
       From these sources, I have concluded that an abuse of power 
     by a sitting President has the following three elements:
       1) The use of official governmental power;
       2) For personal or some other corrupt purpose;
       3) Without due consideration for the national interest.
       President Trump's conduct in soliciting foreign 
     interference in the 2020 presidential election meets each of 
     these elements of the charge of abuse of power. Moreover, the 
     defenses put forth by the President's Counsel are 
     substantively deficient when viewed in the context of the 
     corrupt scheme conducted by President Trump through his 
     personal attorney, Rudy Giuliani, starting in late 2018.
     B. The Corrupt Scheme
       President Trump engaged in a corrupt scheme to solicit 
     foreign interference in the 2020 presidential election to 
     tarnish his political rivals and bolster public perceptions 
     of the legitimacy of his 2016 electoral victory. The corrupt 
     scheme served to benefit the President in a personal, 
     political manner, and was contrary to the national interest. 
     President Trump repeatedly misused the powers of the 
     presidency to increase pressure on Ukraine to further the 
     corrupt scheme, including withholding a White House meeting 
     and U.S. military assistance that the Ukrainians desperately 
     need to counter Russia. This scheme continued even after a 
     whistleblower exposed the President's efforts and even 
     following the launch of the Impeachment inquiry by the House.
       The scheme directed by the President comprised two separate 
     efforts--both aimed to damage his political rivals and 
     benefit his reelection prospects. The first effort was to get 
     the Ukrainian government to announce an investigation into 
     baseless accusations propagated by a Russian disinformation 
     campaign,\57\ that Ukraine interfered in the 2016 election to 
     benefit President Trump's political rival, Hillary Clinton 
     (hereinafter referred to as the ``2016 campaign theory''). 
     The 2016 campaign theory comprised numerous unfounded 
     allegations including that Ukraine colluded with the 
     Democrats to influence the 2016 election and that the 
     cybersecurity company Crowdstrike, falsely alleged to be 
     owned by a Ukrainian oligarch, investigated the hack of the 
     Democratic National Committee (DNC) computer infrastructure, 
     and covered up evidence of Ukrainian culpability in the 
     cyber-attack by hiding the servers from the FBI inside 
     Ukraine.\58\
       President Trump's fixation on the 2016 campaign theory 
     appears to have been intended to change public perceptions of 
     President Trump's connection to Russia, in the wake of the 
     Intelligence Community assessment that Russia interfered in 
     the 2016 election to support then candidate Trump,\59\ and 
     the Special Counsel's mandate including to review ``any links 
     or coordination between the Russian government and 
     individuals associated with the Trump campaign.'' \60\ The 
     Special Counsel noted ``several [of President Trump's] 
     advisors recalled that the President . . . viewed stories 
     about his Russian connections, the Russian investigations and 
     the Intelligence Community assessment of Russian interference 
     as a threat to the legitimacy of his electoral victory.'' 
     \61\ Further, in the spring of 2019, the Special Counsel 
     affirmed the assessments of the Intelligence Community and 
     concluded that while there was no direct conspiracy or 
     coordination between the Kremlin and the Trump campaign, ``. 
     . . the Russian government perceived it would benefit from a 
     Trump presidency and worked to secure that outcome, and that 
     the campaign expected it would benefit electorally from 
     information stolen and released through Russian efforts . . 
     .'' \62\ In directing this effort of the scheme, the 
     President was attempting to rewrite history by having a 
     foreign power make statements to validate his allegations 
     that it was Ukraine colluding with the Democrats rather than 
     Russia interfering to benefit then candidate Trump and 
     exonerate himself of any wrongdoing or ties to Russia.
       In addition, the 2016 campaign theory sought to implicate 
     the President's political rival in 2016, former Secretary of 
     State Hillary Clinton. As Deputy Assistant Secretary George 
     Kent testified, the President ``wanted nothing less than 
     President [Zelensky] to go to [a] microphone and say 
     investigations, Biden, and Clinton.'' He confirmed that 
     ``shorthand'' for Clinton ``was 2016.'' \63\
       The scheme also comprised a second effort to get the 
     Ukrainian government to announce an investigation into 
     unfounded corruption allegations against former Vice 
     President Joe Biden and his son Hunter Biden (hereinafter 
     referred to as ``Biden/Burisma theory''). The allegations 
     associated with this theory surround Vice President Biden's 
     successful pressuring of Ukrainian President Poroshenko to 
     remove Ukrainian Prosecutor General Victor Shokin in 2016, 
     who purportedly was investigating a Ukrainian energy company, 
     Burisma, on whose board Hunter Biden served.\64\ Vice 
     President Biden is a potential presidential challenger to 
     President Trump in the 2020 Presidential election and was 
     viewed as a frontrunner during the spring and summer of 2019 
     when President Trump directed such efforts to further the 
     scheme. The President needed to undercut Vice President 
     Biden as a candidate to enhance his chances of 
     reelection.\65\
       Successfully pressuring the Ukrainian government to 
     announce investigations into the 2016 campaign and Biden/
     Burisma theories was likely to garner the President several 
     political benefits including help with his reelection 
     efforts. As the House Impeachment Managers state in their 
     trial memo:
       Although these theories were groundless, President Trump 
     sought a public announcement by Ukraine of investigations 
     into them [2016/the Bidens] in order to help his 2020 
     reelection campaign. 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.\66\
       President Trump needed to obfuscate what was known and 
     proven about Russian involvement on his behalf in the 2016 
     election to bolster the credibility of claims of Ukrainian 
     Government involvement in the 2016 election and corruption 
     allegations against Vice President Biden ahead of the 2020 
     election. By soliciting investigations into the 2016 campaign 
     and Biden/Burisma theories, he sought to accomplish both of 
     those goals.
       Throughout this scheme, which began in late 2018, President 
     Trump employed Mr. Giuliani as his principal agent,\67\ and 
     enlisted several U.S. government officials to assist with 
     efforts to compel Ukrainian officials to launch 
     investigations into these baseless theories.
       Mr. Giuliani involved associates in this scheme, including 
     Lev Parnas and Igor Fruman, both of whom have been indicted 
     in the Southern District of New York for conspiracy to 
     violate election laws.\68\ Mr. Parnas and Mr. Fruman 
     leveraged their Ukrainian connections to facilitate contacts 
     between Mr. Giuliani and then Ukrainian Prosecutor General 
     Yuriy Lutsenko and his predecessor Victor Shokin to advance 
     the scheme. Both Mr. Lutsenko\69\ and Mr. Shokin\70\ were 
     removed from their positions under a cloud of corruption.
       The corrupt Ukrainian Prosecutors General Lutsenko and 
     Shokin were among Mr. Giuliani's sources for the unfounded 
     allegations in support of the 2016 campaign and Biden/Burisma 
     theories. During a January 2019 call via Skype,\71\ Mr. 
     Shokin asserted he had overseen the investigation into 
     Burisma.\72\ Mr. Shokin alleged that Vice President Biden 
     forced his resignation to stop further investigation into 
     Burisma and cover up wrongdoing.\73\ He made additional 
     allegations including that he had wanted to come to the 
     United States to share information regarding corruption at 
     the Embassy, and that U.S. Ambassador to Ukraine Marie 
     Yovanovitch denied him a U.S. visa because she was close to 
     Vice President Biden.\74\ Mr. Shokin later provided an 
     affidavit espousing allegations against Vice President Biden, 
     which explicitly stated that his sworn statement was made at 
     the behest of a pro-Putin Ukrainian oligarch.\75\
       Also, in January 2019, Mr. Giuliani met in New York with 
     Yuriy Lutsenko, who was then the Ukrainian Prosecutor 
     General. During these initial conversations with Mr.

[[Page S1188]]

     Giuliani, Mr. Lutsenko made multiple allegations that 
     Ukrainian government officials interfered in the 2016 
     election to help Democratic candidate Hillary Clinton. He 
     also made allegations about corrupt practices at Burisma and 
     raised the possibility that there could have been improper 
     payments to Hunter Biden. In addition, Mr. Lutsenko made 
     false allegations against U.S. Ambassador to Ukraine Marie 
     Yovanovitch.'' \76\
       Using these unfounded allegations, Mr. Giuliani launched a 
     disinformation campaign on traditional and social media. In 
     the spring of 2019, Mr. Giuliani and his associates worked 
     with columnist John Solomon, who wrote a series of articles 
     in The Hill, amplifying the false allegations of Mr. Lutsenko 
     and Mr. Shokin.\77\ Through these columns and a related 
     interview, Mr. Lutsenko announced he was opening 
     investigations into aspects of both the 2016 campaign and 
     Biden/Burisma theories.\78\ The President,\79\ his son Donald 
     Trump Jr.,\80\ and Mr. Giuliani \81\ amplified the false 
     allegations by retweeting the articles. President Trump \82\ 
     and Mr. Giuliani \83\ also repeated the false allegations 
     contained in The Hill articles during press interviews.
       In furtherance of the corrupt scheme, President Trump 
     directed the removal of Ambassador Yovanovitch. As laid out 
     in the Statement of Material Facts by the House Impeachment 
     Managers, ``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. The President also helped amplify the smear 
     campaign.'' \84\ Ambassador Yovanovitch testified she was 
     told her removal from post was not for cause.\85\ Mr. 
     Giuliani later admitted he ``believed that [he] needed 
     Ambassador Yovanovitch out of the way'' because ``[s]he was 
     going to make the investigations difficult for everybody.'' 
     \86\ Documents obtained by the House Permanent Select 
     Committee on Intelligence further confirm that the 
     Ambassador's firing was part of the effort to further the 
     corrupt scheme. A text message from Ukrainian Prosecutor 
     General Lutsenko warned Giuliani associate Lev Parnas that if 
     they didn't fire Ambassador Yovanovitch, ``you are bringing 
     into question all my allegations including about ``B.'' \87\ 
     Mr. Parnas confirmed in a press interview that the ``B'' 
     referred to Hunter Biden.\88\
       As previously discussed, both the 2016 campaign and Biden/
     Burisma theories are unfounded. The 2016 campaign theory is 
     an active Russian disinformation campaign.\89\ On December 9, 
     2019, FBI Director Christopher Wray stated, ``We have no 
     information that indicates that Ukraine interfered with the 
     2016 presidential election.'' \90\
       Further, the President's own national security officials 
     have rejected the claim that the Ukrainian government 
     systematically interfered in the 2016 election, including 
     refuting the theory that Ukraine was behind the hack of the 
     DNC servers.\91\ Trump Homeland Security adviser Tom Bossert 
     stressed, ``[t]he DNC server and that conspiracy theory has 
     got to go, they have to stop with that, it cannot continue to 
     be repeated . . . in our discourse.'' \92\
       With regards to the Biden/Burisma theory, no proof of any 
     wrongdoing has been made to support this claim.\93\ No 
     evidence has been presented showing Vice President Biden 
     specifically discussed Burisma with then President Poroshenko 
     in relation to the removal of the corrupt Prosecutor General. 
     Furthermore, U.S. diplomats, such as Former Special Envoy to 
     Ukraine Ambassador Kurt Volker defended Vice President 
     Biden's actions. In his closed interview with the House 
     Committees, Volker stated, ``There is clear evidence that 
     Vice President Biden did indeed weigh in with the President 
     of Ukraine to have Shokin fired but the motivations for that 
     are entirely different from those contained in that 
     allegation.'' \94\ Vice President Biden, acting as the point 
     person for Ukraine policy in the Obama Administration, was 
     representing the interests of the United States and the 
     international community,\95\ promoting increased 
     transparency, corruption reform, and the rule of law.\96\ 
     Vice President Biden's public statements from the time 
     reflect such efforts, focusing on combatting corruption and 
     institutional reform rather than specific companies, such as 
     Burisma.\97\
       The President's Counsel made misleading assertions that 
     U.S. Government officials warned the Vice President of the 
     appearance of wrongdoing in an attempt to convince him to 
     take corrective action. One person they cited was Amos 
     Hochstein, a diplomat who served in the Obama 
     Administration.\98\ Mr. Hochstein did raise the matter with 
     the Vice President but did not recommend that Hunter Biden 
     resign from the board of Burisma.\99\
       By mid-May 2019, Mr. Lutsenko publicly recanted previous 
     allegations he made to Mr. Giuliani, including admitting that 
     he had no evidence of wrongdoing by Vice President Biden or 
     Hunter Biden.\100\ Ambassador Volker explained Mr. Lutsenko's 
     motivations for making these baseless accusations, ``My 
     opinion of Prosecutor General Lutsenko was that he was acting 
     in a self-serving manner, frankly making things up, in order 
     to appear important to the United States, because he wanted 
     to save his job.'' \101\
       At no point during the trial did the President's Counsel 
     dispute the facts surrounding the scheme. The record is clear 
     that the President directed the corrupt scheme to solicit 
     investigations into the 2016 campaign and Biden/Burisma 
     theories for his personal political gain.
     C. President Trump's Misuse of his Office to Advance the 
         Corrupt Scheme
       President Trump used the powers of his office to advance 
     the corrupt scheme through multiple efforts, violating the 
     public trust and placing his own personal political interests 
     above the interests of the nation. In doing so, the President 
     abused the power of his office.
     C.1. President Trump Solicited Ukrainian President Zelensky 
         to Open Investigations into the 2016 Campaign and Biden/
         Burisma Theories
       President Trump abused the powers of his office in order to 
     advance the corrupt scheme by attempting to leverage the 
     Ukrainian desire for an Oval Office meeting and U.S. security 
     assistance as a quid pro quo for Ukrainian investigations 
     into his political opponents that would benefit his 
     reelection in 2020. Starting in May 2019, President Trump 
     directed a sustained campaign to solicit newly-elected 
     Ukrainian President Zelensky to undertake investigations into 
     the 2016 campaign and Biden/Burisma theories.
     C.1.a. President Trump conditioned an Oval Office meeting on 
         investigations into the 2016 campaign and Biden/Burisma 
         theories
       President Trump's misuse of his official powers, with 
     regard to this matter, began shortly after Volodymyr Zelensky 
     won the Ukrainian presidential election on April 21, 2019. In 
     early May, Mr. Giuliani announced that he planned to travel 
     to Ukraine to meet with President-elect Zelensky ``to urge 
     him to pursue inquiries'' into ``the origin of the Special 
     Counsel's investigation into Russia's interference in the 
     2016 election'' and Hunter Biden's ``involvement'' in 
     Burisma.\102\ Mr. Giuliani admitted that he was not 
     conducting ``foreign policy'' but rather ``meddling in an 
     investigation,'' \103\ and that President Trump was aware of 
     his activities.\104\
       In trying to arrange a meeting with President Zelensky, Mr. 
     Giuliani was acting in a private capacity, not as a public 
     official or to advance official U.S. policy. On May 10, 2019, 
     Mr. Giuliani wrote to then President-Elect Zelensky, to 
     request a meeting in his capacity as ``personal counsel to 
     President Trump and with his knowledge and consent.'' \105\ 
     Mr. Giuliani made clear in the letter he was representing 
     Donald Trump as a private citizen, not as President of the 
     United States. While the letter did not state the purpose of 
     the requested meeting, Mr. Giuliani stated publicly on the 
     same day that he intended to tell President Zelensky to 
     pursue investigations into the 2016 campaign and Biden/
     Burisma theories.\106\ Then on May 11th, Mr. Giuliani 
     abruptly cancelled his trip to Ukraine, declaring that 
     President-Elect Zelensky had surrounded himself with 
     ``enemies of the President'' (referring to President 
     Trump).\107\
       President Trump intertwined Mr. Giuliani's private mission 
     and the activities of public officials when he directed U.S. 
     officials to aid his personal attorney in advancing this 
     scheme. At a May 23rd meeting in the Oval Office, President 
     Trump was briefed by Ambassador Paul Volker, Ambassador 
     Gordon Sondland, and Secretary of Energy Rick Perry, who 
     would subsequently describe themselves as the ``Three 
     Amigos,'' (hereinafter referred to as the ``Three Amigos'') 
     on their recent trip to attend the inauguration of President 
     Zelensky.\108\ Witness testimony indicates that despite their 
     positive assessments about President Zelensky, President 
     Trump was unconvinced, and replied that the Ukrainians tried 
     to ``take me down'' in 2016, referring to the debunked 2016 
     campaign theory.\109\ The President resisted the 
     recommendation of the Three Amigos to invite President 
     Zelensky to the White House, and instead repeatedly directed 
     these three officials to ``talk to Rudy.'' \110\ Ambassador 
     Sondland testified that he understood this to refer to Mr. 
     Giuliani and that ``if we did not talk to Rudy, nothing would 
     move forward on Ukraine.'' \111\ Ambassador Sondland further 
     explained that they chose to follow the President's direction 
     to communicate with Mr. Giuliani, not because they liked it, 
     but because ``it was the only constructive path open to us.'' 
     \112\
       The Three Amigos frequently operated outside regular 
     diplomatic channels between the United States and Ukraine, 
     but their activities were not a secret to the President's 
     national security officials. Ambassador Bill Taylor, Charge 
     d'affaires at the U.S. Embassy in Kyiv, described in his 
     testimony how, while he operated in the regular channel of 
     U.S. policymaking regarding Ukraine, beginning on May 23rd 
     there emerged ``an irregular, informal channel,'' consisting 
     of Special Envoy Volker, Ambassador Sondland, Secretary 
     Perry, and Mr. Giuliani.\113\ As Ambassador Sondland 
     testified, ``everyone was in the loop,'' \114\ further 
     clarifying that President Trump, Secretary Pompeo, Mr. 
     Giuliani, and Acting Chief of Staff Mick Mulvaney were 
     kept informed of the activities undertaken by the Three 
     Amigos. Fiona Hill, National Security Council Director for 
     European and Russian Affairs, concluded that Ambassador 
     Sondland was correct that he was keeping the relevant 
     officials informed of his activities because he was 
     ``involved in a domestic political errand'' while she and 
     other government officials were conducting U.S. national 
     security foreign policy, and ``those two things had just 
     diverged.'' \115\
       The purpose of these two channels diverged as well: while 
     the career diplomats were engaged in promoting U.S. national 
     security

[[Page S1189]]

     interests in supporting Ukraine in its fight against Russian 
     aggression, the irregular channel was engaged in pursuing a 
     quid pro quo to secure Ukrainian investigations into the 2016 
     campaign and the Biden/Burisma theories for the benefit of 
     the President's 2020 reelection. At the direction of the 
     President, as conveyed through Mr. Giuliani and Acting White 
     House Chief of Staff Mick Mulvaney, the Three Amigos pursued 
     a quid pro quo--the offer of a politically valuable Oval 
     Office meeting with President Trump in exchange for President 
     Zelensky announcing the desired investigations. Ambassador 
     Sondland testified ``Mr. Giuliani's requests were a quid pro 
     quo for arranging a White House visit for President 
     Zelensky.'' \116\
       The evidence shows that by early July, the message was 
     conveyed to Ukrainian officials that investigations were a 
     prerequisite for their desired White House meeting. 
     Ambassador Volker testified that when the Oval Office meeting 
     was not scheduled by late June, he ``came to believe that the 
     President's long-held negative view toward Ukraine was 
     causing hesitation in actually scheduling the meeting.'' 
     \117\ At a bilateral meeting in Toronto in early July, 
     Ambassador Volker testified that he told alerted President 
     Zelensky that he couldn't get a date scheduled for the White 
     House meeting. Ambassador Volker relayed to President 
     Zelensky, ``I think we have a problem here, and that problem 
     being the negative feed of information from Mr. Giuliani.'' 
     \118\ Ambassador Volker further testified that during the 
     Toronto meeting, he specifically mentioned investigations 
     into ``2016'' election and ``Burisma'' with President 
     Zelensky.\119\ Soon after this warning, President Zelensky's 
     close aide Andriy Yermak asked to be connected with Mr. 
     Giuliani.\120\
       The President's conditions for securing a White House 
     meeting were communicated an additional time, during a July 
     10, 2019, bilateral meeting led by then National Security 
     Adviser John Bolton and then Ukrainian National Security 
     Adviser Oleksandr Danylyuk. During the meeting, the Ukrainian 
     delegation raised their desire to have a White House 
     meeting.\121\ NSC official Hill testified that Ambassador 
     Sondland, who was in attendance at the meeting, responded to 
     the Ukrainian request by stating, ``We have an agreement that 
     there will be a meeting, if specific investigations are put 
     under way.'' \122\ NSC official Lt. Col. Vindman testified 
     that during that afternoon's meetings with the Ukrainian 
     delegation, Ambassador Sondland ``emphasized the importance 
     of Ukraine delivering the investigations into 2016 elections, 
     the Bidens and Burisma.'' \123\ Later, Ambassador Sondland 
     told Dr. Hill that there was agreement with Mr. Mulvaney that 
     there would be a White House meeting with President Zelensky 
     ``in return for investigations.'' \124\ According to Dr. 
     Hill, Ambassador Bolton was so alarmed that he told her to 
     inform the lawyers about what happened in the meeting, adding 
     that he was not be part of ``whatever drug deal that Mulvaney 
     and Sondland are cooking up.'' \125\

          C.1.b. President Trump withheld military assistance

       President Trump also used the powers of his office to 
     order, through the Office of Management and Budget (OMB), the 
     withholding of congressionally appropriated security 
     assistance to Ukraine. The evidence shows that the President 
     fixated on a June 19, 2019 article in the Washington Examiner 
     announcing the release of Ukraine security assistance as an 
     additional leverage point to further the corrupt scheme.\126\ 
     By no later than July 12, 2019,\127\ President Trump ordered 
     a hold on $391 million in security assistance for Ukraine, 
     consisting of $250 million in Department of Defense Ukraine 
     Security Assistance Initiative (USAI) funding and $141 
     million in State Department Foreign Military Financing (FMF). 
     At an interagency meeting on July 18, 2019, a week before the 
     Trump-Zelensky phone call, OMB officials instructed relevant 
     U.S. government departments and agencies to withhold 
     obligation of the Ukraine security assistance at the 
     direction of the President.\128\ According to multiple 
     witnesses, OMB did not provide a reason for the President's 
     hold on the Ukraine aid.\129\ OMB maintained this hold on 
     Ukraine security assistance through September 11th, when OMB 
     lifted the hold, again without providing a rationale for the 
     change of course.\130\
       The President's Counsel claim that the President's hold on 
     security assistance was because of a policy difference, but 
     that claim is not supported by the evidence. The manner in 
     which the White House placed the hold on security assistance 
     for Ukraine differed significantly from the process in which 
     holds of assistance to other countries based on policy 
     considerations had previously occurred. As the House 
     Impeachment Managers stated, ``What the President did is not 
     the same as routine withholding of foreign aid to ensure that 
     it aligns with the President's policy priorities or to adjust 
     with geopolitical developments.'' \131\ The President began 
     asking about the hold based on the announcement of the 
     release of funds, after the Department of Defense had 
     certified that the Ukrainian government made progress on 
     corruption reform, showing that the hold was not placed due 
     to policy considerations. Further, no geopolitical 
     circumstances had changed in that timeframe to warrant the 
     placing of a hold on security assistance funds to Ukraine.
       In addition, despite substantial evidence that U.S. 
     government officials were deeply concerned about conflicts 
     with the Impoundment Control Act (ICA), there was no 
     notification of the delay to Congress as required by this 
     law, belying the idea that the President harbored legitimate 
     concerns about policy.\132\ Congress has an established 
     bipartisan record of robust support for Ukraine. Since 2014, 
     the United States has provided more than $3.5 billion in 
     foreign assistance to Ukraine: $1.96 billion in military and 
     other security assistance and $1.6 billion in political aid 
     to Ukraine, all illustrating a policy that support to Ukraine 
     furthers U.S. national security interests.\133\ Interagency 
     conversations while the hold was in place reflected concerns 
     that withholding the funds would in fact violate the 
     ICA,\134\ yet there were no plans to notify Congress or 
     rescind the funds as required by under the ICA. Further, when 
     OMB official Mike Duffey directed Acting DOD Comptroller 
     Elaine McCusker to formally hold the assistance for Ukraine, 
     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.'' \135\ The 
     secrecy maintained by Administration officials regarding the 
     hold on this security assistance differs significantly from 
     past practice and supports the inference that they were aware 
     that the hold was contrary to U.S. policy and that they had 
     no legitimate policy justification for a change in 
     U.S. policy.
       In withholding the security assistance for Ukraine, the 
     President violated his duty to faithfully execute the laws. 
     Congress enacted the ICA in 1974 as one of many responses to 
     the abuses of President Nixon in order to require the 
     President to obligate funds appropriated by Congress, unless 
     Congress otherwise authorizes the withholding.\136\ The ICA 
     provides the President with narrowly circumscribed authority 
     to withhold, or ``impound,'' appropriated funds only in 
     limited, specified circumstances, and included a requirement 
     to inform Congress. At no point did the Trump Administration 
     either assert that it was impounding the Ukraine security 
     assistance or inform Congress of any deferral or rescission 
     of funds. In reviewing the OMB's withholding of funds 
     appropriated to the Department of Defense for Ukraine 
     security assistance, the Government Accountability Office 
     concluded that OMB violated the ICA.\137\

C.1.c. President Trump conditioned a White House meeting and Ukrainian 
                 security assistance on investigations

       The House Impeachment Managers' record demonstrates 
     overwhelmingly that President Trump conditioned both a White 
     House meeting and nearly $400 million in U.S. security 
     assistance for Ukraine on a commitment by President Zelensky 
     to conduct investigations for the personal political benefit 
     of Donald Trump. The President's scheme to secure corrupt 
     investigations to benefit his reelection efforts converged 
     with his official duties during a July 25, 2019, phone call 
     with President Zelensky. The President's actions during that 
     phone call, understood in the context of the broader corrupt 
     scheme, are compelling evidence that the President solicited 
     foreign interference in U.S. elections.
       The President's own words during the July 25th call, as 
     summarized in a memorandum of telephone conversation released 
     by the White House, demonstrate the President's demand for a 
     quid pro quo.\138\ Far from showing the ``perfect call'' that 
     President Trump claims,\139\ the memorandum of the telephone 
     conversation makes clear that the President solicited 
     politically-motivated investigations from President Zelensky 
     in exchange for a White House meeting and U.S. military aid. 
     When the Ukrainian President indicated he would be seeking 
     additional U.S. military arms that Ukraine desperately needed 
     for its conflict with Russia, President Trump responded by 
     requesting that President Zelensky do him ``a favor though.'' 
     \140\ The memorandum of the telephone conversation makes 
     clear that the favor President Trump sought as a condition 
     for future military aid was the two investigations into the 
     2016 campaign and the Biden/Burisma theories. President Trump 
     went on to espouse many of the allegations associated with 
     the debunked 2016 campaign theory, including ``Crowdstrike,'' 
     and ``one of your wealthy people,'' falsely insinuating that 
     a Ukrainian oligarch owned the cybersecurity firm that 
     investigated the DNC hack.\141\ He then alleged that Ukraine 
     has the server and added, ``. . . They say a lot of it 
     started in Ukraine. Whatever you can do, it's very important 
     that you do it. . .'' \142\ Later in the phone call, 
     President Trump mentioned ``the other thing'' he wanted 
     investigated, declaring that there was ``a lot of talk 
     about'' Vice President ``Biden's son,'' and that Vice 
     President ``Biden stopped the prosecution.'' \143\ President 
     Trump told President Zelensky, ``A lot of people want to find 
     out about that, so whatever you can do with the Attorney 
     General would be great.'' \144\ In addition, it must be noted 
     President Trump specifically urged President Zelensky to call 
     Mr. Giuliani, as well as Attorney General Barr,\145\ 
     regarding investigations into the 2016 campaign and Biden/
     Burisma theories.\146\ Given all of the steps taken by Mr. 
     Giuliani leading up to the call, including his letter to 
     President Zelensky and public statements urging President 
     Zelensky to undertake investigations into the 2016 campaign 
     and Biden/Burisma theories, it is clear that President Trump 
     was signaling that he wanted these investigations.
       The President's Counsel disputed the notion that there was 
     a quid pro quo by claiming that President Zelensky was not 
     aware

[[Page S1190]]

     of an arrangement and he felt no pressure during the July 
     25th phone call. However, evidence shows that the President's 
     surrogates prepped President Zelensky ahead of the call to 
     say that he would conduct investigations into the 2016 
     campaign and Biden/Burisma theories in order to get a White 
     House meeting. Ambassadors Volker and Sondland had multiple 
     exchanges with President Zelensky and his aide Mr. Yermak 
     ahead of the call. Ambassador Volker, after having breakfast 
     with Mr. Giuliani, told Ambassador Taylor and Ambassador 
     Sondland via text, ``Most important is for Zelensky to say 
     that he will help with investigation.'' \147\ That same day, 
     Ambassador Sondland directed President Zelensky to tell 
     President Trump, he would ``run a fully transparent 
     investigation and turn over every stone,'' \148\ which he 
     indicated in testimony referred to the ``Burisma and the 
     2016'' investigations.\149\ The morning of the July 25th 
     call, Ambassador Sondland spoke to President Trump and then 
     alerted Ambassador Volker to contact him.\150\ Approximately 
     a half hour later, Ambassador Volker texted Zelensky aide Mr. 
     Yermak, ``Heard from White House--assuming President 
     Z[elensky] convinces Trump he will investigate/ `get to the 
     bottom of what happened' in 2016, we will nail down a date 
     for a visit in Washington.'' \151\
       The memorandum of the telephone conversation shows that 
     President Zelensky understood the messages that he was told 
     to convey during the call and followed those instructions. 
     During the call, President Zelensky said to President Trump, 
     ``I also wanted to thank you for your invitation to visit the 
     United States, specifically Washington D.C. 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.'' \152\ 
     Lt. Col. Vindman testified that aspects of the call, 
     including President Zelensky bringing up Burisma, suggested 
     that he was ``prepped'' for this call.\153\ President 
     Zelensky knew what ``favor'' President Trump was asking for 
     as a condition for receiving the White House meeting.

C.1.d. The actions of Administration officials following the July 25th 
phone call demonstrate that the President conditioned U.S. military aid 
to Ukraine and the White House meeting on President Zelensky announcing 
  the investigations into the 2016 campaign and Biden/Burisma theories

       The President's Counsel allege that there is no evidence 
     that the President conditioned U.S. military aid for Ukraine 
     or the White House meeting on a commitment by President 
     Zelensky to announce investigations into the 2016 campaign 
     and Biden/Burisma theories. The President's Counsel assert 
     that any claims that President Trump made any such linkage, 
     particularly relating to the military assistance, are 
     unsupported and based on second or third-hand sources and 
     speculation. They claim that no one with first-hand knowledge 
     of the President's thinking came forward and testified that 
     he conditioned the delivery of these official acts for 
     Ukraine on the investigations. These claims are both 
     disingenuous and wrong.\154\
       Furthermore, the actions of Administration officials after 
     the July 25th phone call make clear President Trump's request 
     was a quid pro quo. Approximately 90 minutes after the 
     call, OMB official Mike Duffey directed Acting DoD 
     Comptroller McCusker to formally hold the Department of 
     Defense security assistance for Ukraine.\155\
       In addition, conversations on July 26, 2019, detail that 
     President Trump appeared solely focused on whether efforts to 
     pressure President Zelensky to initiate the investigations 
     had been successful. On July 26th, the day after the phone 
     call between Presidents Trump and Zelensky, Ambassador 
     Sondland called President Trump from Kyiv. According to 
     testimony from David Holmes, Counselor for Political Affairs 
     at the U.S. Embassy who overheard the phone call, President 
     Trump asked Ambassador Sondland, ``So he's going to do the 
     investigation?'' referring to the 2016 campaign and Burisma/
     Biden theories.\156\ Holmes also testified that he asked 
     Ambassador Sondland that same day if President Trump cared 
     about Ukraine. Sondland responded that President ``Trump only 
     cared about `big stuff' that benefits the President, like the 
     `Biden investigation' that Mr. Giuliani was pushing.'' \157\
       Most telling, President Trump's Acting Chief of Staff Mick 
     Mulvaney publicly admitted at a press conference on October 
     17th that withholding the security assistance for Ukraine 
     provided leverage to convince Ukraine to investigate the 
     source of the hack of the DNC servers in 2016, an aspect of 
     the 2016 campaign theory.\158\ Mr. Mulvaney confirmed that 
     President Trump ``[a]bsolutely'' raised ``corruption related 
     to the DNC server'' and added that was part of ``why we held 
     up the money.'' \159\ When a reporter pointed out that he had 
     just described a quid pro quo, Mr. Mulvaney stated, ``We do 
     that all the time with foreign policy'' and told everyone to 
     ``Get over it. There's going to be political influence in 
     foreign policy.'' \160\
       Despite the assertions of the President's counsel, evidence 
     indicates that the Zelensky Administration knew that there 
     was a problem with the security assistance well before the 
     hold was reported publicly on August 28, 2019.\161\ The same 
     afternoon of the July 25th phone call, Department of Defense 
     officials learned that diplomats at the Ukrainian Embassy in 
     Washington had made multiple overtures to the Pentagon and 
     the State Department ``asking about security assistance.'' 
     \162\ Separately, during that same time frame, two different 
     officials at the Ukrainian Embassy contacted Ambassador 
     Volker's special assistant, Catherine Croft, to ask her in 
     confidence about the hold.\163\ In early August 2019, the 
     Ukrainians reportedly made further inquiries about the 
     security assistance funds.\164\ The message sent back was 
     that the holdup was not bureaucratic in nature, and that to 
     address it they were advised to reach out to Mick 
     Mulvaney.\165\ NSC official Lt. Col. Vindman testified that 
     by mid-August 2019, he had also received inquiries about the 
     hold on the security assistance from an official at the 
     Ukrainian Embassy.\166\
       Evidence and reporting regarding the President's 
     interactions with then National Security Adviser John Bolton 
     further confirms that the President held security assistance 
     in order to further the corrupt scheme. On August 16, 2019, 
     Ambassador Bolton reportedly made a personal appeal to 
     President Trump to release the security assistance for 
     Ukraine and was ``rebuffed.'' \167\ NSC official Tim Morrison 
     affirmed this account in his testimony. Mr. Morrison 
     testified that Ambassador Bolton said President Trump, 
     ``wasn't ready'' to release the aid.\168\ According to news 
     reports that emerged during the Impeachment trial, an account 
     from Ambassador Bolton's forthcoming book reportedly makes 
     this link even more explicit.
       Ambassador Bolton stated during the August meeting, 
     President Trump ``appeared focused on the theories Mr. 
     Giuliani had shared with him, replying to Mr. Bolton's 
     question that he preferred sending no assistance to Ukraine 
     until officials turned over all materials they had about the 
     Russia investigation that related to Mr. Biden and supporters 
     of Mrs. Clinton in Ukraine.'' \169\
       The record also shows that after the July 25th Trump-
     Zelensky phone call, President Trump directed a campaign to 
     increase the pressure in furtherance of the scheme. Starting 
     in early August, Ambassadors Volker and Sondland, in 
     coordination with Mr. Giuliani, attempted to get President 
     Zelensky to publicly announce investigations into the 2016 
     campaign and Biden/Burisma theories.\170\ Ambassadors Volker 
     and Sondland worked in conjunction with President Zelensky's 
     aide Mr. Yermak to generate an acceptable statement.\171\ 
     After the initial Ukrainian draft of the statement contained 
     only a general commitment from President Zelensky to fight 
     corruption, Ambassadors Volker and Sondland consulted Mr. 
     Giuliani who responded that if the statement ``doesn't say 
     Burisma and 2016, it's not credible.'' \172\ Ambassador 
     Volker then revised President Zelensky's draft statement to 
     include specific references to ``Burisma'' and ``the 2016 
     U.S. elections.'' \173\ No statement was ever released by 
     President Zelensky, and Ambassador Volker testified that it 
     was because the Ukrainians realized that making such a 
     statement was tantamount to a quid pro quo.\174\
       Furthermore, witness testimony shows that as the hold on 
     the security assistance continued through the late summer, 
     U.S. government officials realized the connection between the 
     hold and the President's desire for Ukrainian announcements 
     of investigations into President Trump's political rivals. By 
     early September, Ambassador Taylor said his ``clear 
     understanding'' was that President Trump would withhold 
     security assistance until President Zelensky ``committed to 
     pursue the investigations.'' \175\ Ambassador Taylor further 
     testified that his contemporaneous notes reflect that 
     President Trump wanted President Zelensky ``in a box by 
     making [a] public statement about ordering such 
     investigations.'' \176\ Ambassador Sondland explained to 
     Ambassador Taylor that ``everything'' (the Oval Office 
     meeting and security assistance) ``was dependent on the 
     Ukrainian government announcing the political 
     investigations.'' \177\ Ambassador Taylor responded to 
     Ambassador Sondland that he thought it was ``crazy to 
     withhold security assistance for help with a political 
     campaign.'' \178\ Foreign Service Officer David Holmes 
     testified that his ``clear impression'' around the same time 
     was that ``the security assistance hold was likely intended 
     by the President either to express dissatisfaction with the 
     Ukrainians who had not yet agreed to the Burisma/Biden 
     investigations, or as an effort to increase the pressure on 
     them to do so.'' \179\
       Once the hold on the security assistance was reported in 
     the press in late August 2019, the conditions for releasing 
     the assistance were soon overtly communicated to President 
     Zelensky. President Trump's surrogates informed President 
     Zelensky and his aides that the security assistance was held 
     up as a result of President Zelensky's unwillingness to 
     announce the investigations into President Trump's political 
     rivals. These directions came from the President.\180\ 
     Ambassador Sondland testified that he had passed a message 
     directly to President Zelensky's aide Mr. Yermak on September 
     1, 2019, that, ``I believed that the resumption of U.S. aid 
     would not likely occur until Ukraine took some kind of action 
     on the public statement that we had been discussing for 
     weeks.'' \181\ Affirming this account, Ambassador Taylor 
     testified that Ambassador Sondland told him he had warned 
     President Zelensky and Mr. Yermak 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.'' \182\ 
     President Zelensky apparently understood the message 
     because arrangements were made for the Ukrainian President 
     to go on CNN to announce the investigations.\183\
       The President's Counsel argue that there could not have 
     been a quid pro quo because

[[Page S1191]]

     the Ukrainians ultimately got the funding without making the 
     commitment to conduct the investigations. Essentially, they 
     argue ``no harm, no foul.'' However, the President's 
     solicitation of the politically-motivated investigations in 
     exchange for official acts is in and of itself an abuse of 
     his office and the public trust. Further, President Trump 
     released the hold on the security assistance only after a 
     whistleblower's complaint had been provided to Congress and 
     three House committees had initiated an investigation into 
     the hold. On August 12, 2019, a whistleblower filed a 
     complaint with the Intelligence Community's Inspector 
     General, which stated multiple U.S. government officials had 
     told him or her information indicating that the ``President 
     of the United States is using the power of his office to 
     solicit interference from a foreign country in the 2020 U.S. 
     election.'' \184\ The complaint cited the July 25th call 
     between Presidents Trump and Zelensky, the placing of the 
     call on a codeword server, and other circumstances 
     surrounding the call including the role of Mr. Giuliani.\185\ 
     The President was reportedly briefed by White House Counsel 
     on the existence of a whistleblower complaint in late 
     August.\186\ On September 9, 2019, the whistleblower 
     complaint was referred to Congress.\187\ On the same day, the 
     House Permanent Select Committee on Intelligence, the House 
     Committee on Oversight and Government Reform, and the House 
     Committee on Foreign Affairs opened an inquiry into the 
     circumstances surrounding the hold.\188\ The President 
     subsequently lifted the hold on September 11, 2019.\189\
       Moreover, the corrupt scheme did not end even after the 
     House Committees began the Impeachment Inquiry. Mr. Giuliani, 
     at the direction of the President, has continued to travel to 
     Ukraine to generate compromising material on President 
     Trump's political opponents,\190\ raising the possibility of 
     future attempts by President Trump to pressure foreign 
     leaders to interfere in the 2020 election.
       Consistent with the first element delineated for abuse of 
     power, the evidence clearly shows that President Trump 
     misused his office to advance a corrupt scheme.
       The fact that President Trump's actions involve the misuse 
     of the office of the presidency distinguishes the current 
     proceedings from the circumstances in the 1999 Clinton 
     Impeachment trial. Based on the historical record, the 
     constitutional standard I applied in the Clinton proceedings 
     was that ``private wrongdoing, without a significant adverse 
     effect upon the nation, cannot constitute an impeachable 
     offense.'' \191\ On that basis, I concluded that ``Citizens 
     may well lack confidence in the ability of President Clinton 
     to be honest about his personal life, this is not however a 
     threat to our government.'' \192\ The circumstances regarding 
     President Trump can be distinguished both on the grounds that 
     his actions involved the misuse of his public office, not 
     private wrongdoing, and because the nature of President 
     Trump's abuse of power is an ongoing threat to our systems of 
     government and our constitutional order.

 D. The President's Solicitation of Investigations by Ukraine into the 
2016 Campaign and Biden/Burisma Theories Was for his Personal or Other 
                            Corrupt Purpose

       The second element of the offense of abuse of power, as 
     previously delineated, is the use of official governmental 
     power for personal or some other corrupt purpose. The 
     President's Counsel have argued that the President had 
     legitimate policy reasons for withholding the Ukraine 
     security assistance or the White House meeting. Specifically, 
     the President's Counsel asserted that President Trump had 
     longstanding concerns about corruption and burden-sharing by 
     European allies in support of Ukraine. Upon careful review of 
     the record, these assertions simply do not square with the 
     facts. While there is some basis for the assertion that 
     President Trump cared about these issues, they were not the 
     basis for the withholding of Ukraine security assistance.
       Evidence shows that President Trump's solicitation alarmed 
     Administration officials who listened in to the July 25th 
     call, and their concerns did not stem from policy 
     differences. NSC official Lt. Col. Vindman testified that he 
     was ``concerned'' about the call and ``did not think it was 
     proper to demand that a foreign government investigate a U.S. 
     citizen.'' \193\ Vice Presidential aide Jennifer Williams, 
     who also listened to the July 25th call, testified she found 
     it, ``unusual because, in contrast to other Presidential 
     calls I had observed, it involved discussion of what appeared 
     to be a domestic political matter.'' \194\ Ms. Williams was 
     informed of the security assistance hold on July 3rd and 
     stated that the call ``shed some light on possible other 
     motivations behind a security assistance hold.'' \195\ Lt. 
     Col. Vindman and NSC official Tim Morrison were sufficiently 
     concerned that they separately reported the contents of the 
     call to NSC lawyers, Mr. Eisenberg and Mr. Ellis.\196\ The 
     President's lawyers, in turn, took steps to restrict access 
     to the rough transcript of the call by placing it on a 
     highly-restricted classified server.\197\
       Furthermore, the President's Counsel's claim that security 
     assistance for Ukraine was withheld over concerns about 
     corruption is unfounded. On May 23, 2019, the Department of 
     Defense certified to Congress that Ukraine had made progress 
     on defense reform and anti-corruption measures. Congress 
     required this certification under the National Defense 
     Authorization Act in order to allow USAI funding to be 
     provided beyond the first 50 percent of amounts authorized 
     and appropriated for Ukraine military aid.\198\ Furthermore, 
     support for providing security assistance to Ukraine was 
     unanimous among relevant agencies of the United States 
     government. Deputy Assistant Secretary of Defense Laura 
     Cooper testified that there was a consensus within the 
     interagency that corruption was not a legitimate reason for 
     the hold.\199\ Ambassador Taylor affirmed Ms. Cooper's 
     recollection that no agencies raised policy-related concerns 
     as reason for the hold on security assistance testifying, 
     ``At every meeting, the unanimous conclusion was that the 
     security assistance should be reassumed, the hold lifted. At 
     one point the Defense Department was asked to perform an 
     analysis of the effectiveness of the assistance. Within a 
     day, the Defense Department came back with the determination 
     that the assistance was effective and should be resumed.'' 
     \200\
       Nor does the evidence support the claim that President 
     Trump, himself, had concerns about institutional corruption 
     that would lead him to withhold military assistance for 
     Ukraine. There is no evidence that President Trump in his 
     interactions with his Ukrainian counterpart, raised concerns 
     about corruption. Indeed, corruption was not raised by 
     President Trump during the two calls he had with President 
     Zelensky,\201\ despite that issue being included in his 
     talking points prepared by NSC staff for both calls.\202\ 
     Further evidence that President Trump was not interested 
     in institutional corruption in Ukraine came from Mr. 
     Morrison, who listened to the July 25th call, and 
     testified that President Trump did not make a ``full-
     throated endorsement of the Ukraine reform agenda that I 
     was hoping to hear.'' \203\
       Further, communications by U.S. diplomats to President 
     Zelensky or other Ukrainian officials do not indicate that 
     President Trump held Ukrainian security assistance due to 
     concern about corruption in Ukraine. As discussed earlier, 
     Ambassador Volker and Ambassador Sondland had multiple 
     contacts with President Zelensky and his close aide Mr. 
     Yermak ahead of the July 25th call. No evidence shows that 
     President Zelensky was advised to outline steps he was taking 
     to address corruption on the call.\204\ Similarly, previously 
     discussed diplomatic efforts in August focused on securing a 
     public commitment by President Zelensky to investigate the 
     2016 campaign and Biden/Burisma theories specifically, and a 
     commitment to pursue corruption generally was deemed 
     insufficient to meet President Trump's request.\205\
       The evidence also does not indicate that President Trump 
     used official auspices to undertake a corruption 
     investigation in furtherance of official U.S. government 
     policy. If the President was interested in pursuing a 
     particular corruption investigation with the Government of 
     Ukraine, he could have done so through established diplomatic 
     channels. The President could have directed his Attorney 
     General to make an official request of Ukraine to initiate 
     investigations into corruption under the existing Mutual 
     Legal Assistance Treaty (MLAT) with Ukraine.\206\ In this 
     instance, President Trump did not take such action. Rather, 
     in the July 25th call, President Trump asked President 
     Zelensky to work with both his personal attorney, Mr. 
     Giuliani, and Attorney General Barr to pursue investigations 
     into his political rivals.\207\ Further, supporting the idea 
     that the President did not ask for any official 
     investigations, the DOJ has denied knowledge of any such 
     investigations, declaring that ``the President has not asked 
     the Attorney General to contact Ukraine--on this [the July 
     25th call] or any other matter.'' \208\ Additionally, Mr. 
     Yermak asked Ambassador Volker to make any official request 
     for investigations through formal channels,\209\ but there is 
     no evidence that the DOJ or officials at the US Embassy Kyiv 
     followed up on that suggestion.\210\ That the President did 
     not go through regular inter-governmental channels supports 
     the conclusion that his interest in Ukrainian investigations 
     was for his personal political benefit and not legitimate 
     policy considerations.
       In addition, there is no evidence to support the claim that 
     President Trump withheld Ukrainian military assistance out of 
     concerns about European burden sharing. While President Trump 
     may be skeptical about European contributions to mutual 
     defense, European nations contribute significantly more 
     foreign aid overall to Ukraine than the United States. The EU 
     is the single largest contributor of foreign assistance to 
     Ukraine, having provided =15 billion since 2014 versus $1.96 
     billion in security assistance that the United States has 
     provided over that same time period.\211\
       The rationale that the President withheld security 
     assistance because he was concerned with Europe paying more 
     to support Ukraine was not raised until well after the hold 
     was placed on U.S. security assistance for Ukraine. Witness 
     testimony indicates that the President began making inquiries 
     about the aid on June 19, 2019,\212\ and that all security 
     assistance for Ukraine had been put on hold by July 12, 
     2019.\213\ OMB official Mark Sandy testified that when the 
     hold was ordered no explicit reason was provided.\214\ Mr. 
     Sandy further testified that it wasn't until September, after 
     the hold became public, that a concern was expressed about 
     European burden sharing.\215\
       Nor is there evidence that the Trump Administration made 
     any efforts publicly or privately to get additional 
     contributions

[[Page S1192]]

     from Europe while the aid was on hold. 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 11th.\216\
       Moreover, as the GAO decision makes clear, the President 
     does not have the authority to withhold funding that Congress 
     has appropriated for a specific purpose. The GAO determined 
     ``the law does not permit the President to substitute his own 
     policy priorities for those that Congress has enacted into 
     law. OMB withheld funds for a policy reason, which is not 
     permitted under the Impoundment Control Act (ICA). The 
     withholding was not a programmatic delay. Therefore, we 
     conclude that OMB violated the ICA.'' \217\
       The OMB continued to implement the President's hold on the 
     Ukraine security assistance despite repeated warnings 
     starting in early August from Department of Defense (DOD) 
     officials that further delays risked violating the ICA.\218\ 
     The OMB-directed hold on the apportionment of funds continued 
     even after DOD warned that it could no longer guarantee that 
     the Department would be able to obligate the funds before the 
     end of the fiscal year, a clear violation of the ICA.\219\ 
     Ultimately, DOD failed to execute $35 million of the $250 
     million obligated for USAI before the end of the fiscal 
     year.\220\
       The President's Counsel have failed to produce credible 
     evidence to support the contention that the President 
     withheld security assistance and an Oval Office meeting from 
     Ukraine for legitimate policy reasons. Instead, an adverse 
     inference can be drawn that the President had no legitimate 
     policy basis for his actions. Further, the House Impeachment 
     Managers have established that the President acted for his 
     own personal benefit, specifically to advance the ongoing 
     corrupt scheme to solicit foreign interference in the 2020 
     presidential election.
     E. The President's Solicitation of Investigations into the 
         2016 Campaign and Biden/Burisma Theories was Without Due 
         Consideration of U.S. National Interests
       The final element of the offense of abuse of power, as 
     previously delineated, is that the use of official power, for 
     personal or some other corrupt purpose, is made without due 
     consideration for the national interest. The evidence 
     presented at the Senate trial makes clear that in using the 
     powers of his office to withhold valuable U.S. security 
     assistance and an Oval Office visit for the newly-elected 
     Ukrainian President to advance a corrupt scheme to solicit 
     foreign interference for his personal benefit, President 
     Trump harmed the national interest of the United States. 
     President Trump's efforts to leverage two official acts to 
     advance a scheme to solicit foreign interference in the 2020 
     election is contrary to the national interests of the United 
     States in a number of ways.
       First and foremost, President Trump's misuse of the powers 
     of his office threatened the heart of the constitutional 
     order itself, potentially undermining our democratic process. 
     By pressuring Ukraine to engage in election interference 
     through the promotion of two unfounded theories, President 
     Trump's conduct posed an urgent danger to the integrity of 
     our constitutional system. If the history of the 2016 
     election can be rewritten at the President's direction to 
     cast doubt on Russia's interference, it invites Russia and 
     other adversaries to interfere again in the future knowing 
     that there will be no consequences. Similarly, it risks 
     distorting the integrity of our electoral process if the 
     President can leverage the power of the presidency to 
     pressure foreign countries to commit their government 
     resources to dig up ``dirt'' on his political opponents in 
     order to benefit his reelection.
       Second, President Trump's corrupt scheme threatened U.S. 
     national security objectives by advancing a Russian 
     disinformation narrative that it was Ukraine, and not Russia, 
     that interfered in the 2016 presidential campaign. The 
     Intelligence Community unanimously assessed that ``Russian 
     President Vladimir Putin ordered an influence campaign in 
     2016 aimed at the U.S. presidential election.'' \221\ That 
     assessment of the Intelligence Community was affirmed by the 
     bipartisan Senate Select Committee on Intelligence,\222\ and 
     the Special Counsel's investigation.\223\
       The perpetuation and promotion of a Russian disinformation 
     operation undermines U.S. efforts to protect our electoral 
     institutions from Russian interference and to build the 
     resilience of the American people against foreign 
     interference. Former NSC official Dr. Fiona Hill underscored 
     the importance of countering this Russian information warfare 
     campaign when she testified before the House Intelligence 
     Committee on November 21, 2019. She assessed:
       The impacts of the successful 2016 Russian campaign remains 
     evident today. Our nation is being torn apart. Truth is 
     questioned. Our highly professional expert career Foreign 
     Service is being undermined. U.S. support for Ukraine which 
     continues to face armed Russian aggression is being 
     politicized. The Russian Government's goal is to weaken our 
     country, to diminish America's global role, and to neutralize 
     a perceived U.S. threat to Russian interests. President Putin 
     and the Russian security services aim to counter U.S. foreign 
     policy objectives in Europe including in Ukraine, where 
     Moscow wishes to reassert political and economic 
     dominance.\224\
       Third, the President's withholding of nearly $400 million 
     in U.S. security assistance to Ukraine undermined U.S. 
     national security objectives in the strategic competition 
     with Russia, a central pillar of the Administration's own 
     National Defense Strategy. NSC official Tim Morrison stressed 
     that ``Ukraine is on the front lines of a strategic 
     competition between the West and Vladimir Putin's revanchist 
     Russia.'' \225\ He added, ``The United States aids Ukraine 
     and her people so they can fight Russia over there, and we 
     don't have to fight Russia here.'' \226\ Ambassador Taylor 
     also testified on the importance of supporting Ukraine for 
     U.S. national security interests. He stressed, ``One of our 
     national security goals is to resolve conflicts in Europe'' 
     and our aid to Ukraine is ``in support of a broader strategic 
     approach to Europe . . .,'' and is ``to support Ukraine when 
     it negotiates with the Russians.'' \227\
       Ambassador Taylor and other witnesses were particularly 
     alarmed by the withholding of the security assistance because 
     of its potential impact on Ukraine at a critical time in its 
     conflict with Russia. As Ambassador Taylor testified, ``It's 
     one thing to try to leverage a meeting in the White House. 
     It's another thing, I thought, to leverage security 
     assistance to a country at war, dependent on both the 
     security assistance and the demonstration of support. It was 
     much more alarming.'' \228\ Ambassador Taylor further 
     underscored the harm from withholding vital aid for Ukraine: 
     ``Security assistance was so important for Ukraine as well as 
     our national interests, to withhold that assistance for no 
     good reason other than help with a political campaign made no 
     sense. It was counterproductive to all of what we had been 
     trying to do. It was illogical. It could not be explained. It 
     was crazy.'' \229\
       President Trump's actions also threatened to undermine one 
     of Ukraine's greatest assets in its conflict with Russia, the 
     bipartisan nature of support for Ukraine in the U.S. 
     Congress. Ambassador Taylor advised President Zelensky's 
     close aide Yermak, of the ``high strategic value of a 
     bipartisan support for Ukraine and the importance of not 
     getting involved in other country's elections.'' \230\ 
     Ambassador Volker also emphasized the importance of the 
     bipartisan support in Congress for U.S. policy toward 
     Ukraine.\231\
       Finally, the President's efforts to secure investigations 
     into the 2016 campaign and Biden/Burisma theories undermined 
     U.S. policy promoting the rule of law and fighting 
     corruption, which included discouraging partner governments 
     from launching politically-motivated investigations into 
     domestic rivals. Deputy Assistant Secretary George Kent, 
     former Deputy Chief of Mission in Ukraine, testified to the 
     official U.S. policies in place in countries like Ukraine and 
     Georgia, stating that ``having the President of the United 
     States effectively ask for a political investigation of his 
     opponent would run directly contrary'' to these efforts.\232\ 
     As Chairman Schiff restated on December 18, 2019:
       On September 14 in Ukraine, when Ambassador Volker sat down 
     with Andriy Yermak, the top adviser to Zelensky, and he did 
     what he should do. He supported the rule of law, and he said: 
     You, Andriy Yermak, should not investigate the last 
     President, President Poroshenko, for political reasons. You 
     should not engage in political investigations. And do you 
     know what Yermak said: ``Oh, you mean like what you want us 
     to do with the Bidens and the Clintons? \233\
       Based on the above analysis, I find that there is 
     overwhelmingly clear and convincing evidence that elements of 
     abuse of power have been met and that President Trump is 
     guilty on the first Article of Impeachment.


                VI. ARTICLE II: OBSTRUCTION OF CONGRESS

       Article II of House Resolution 755 provides that, in the 
     conduct of his office, the President directed the 
     unprecedented and categorical indiscriminate defiance of 
     subpoenas issued pursuant to the House's ``sole Power of 
     Impeachment.'' \234\ Article I provides further provides that 
     President Trump's ordering the White House and other 
     Executive Branch agencies and Executive Branch officials to 
     defy House subpoenas sought ``to seize and control the power 
     of impeachment . . . a vital constitutional safeguard vested 
     solely in the House of Representatives.'' \235\ I will first 
     explain how historical and case precedent proves that 
     obstruction of Congress is an impeachable offense. Next, I 
     will explain how, through his indiscriminate order, President 
     Trump sought to vitiate and in fact, did undermine, the 
     lawful authority of Congress. Finally, I will explain how 
     each of the arguments that the President's Counsel put 
     forward during the Impeachment Trial to justify the 
     President's obstruction do not amount to a lawful cause or 
     excuse.
     A. Obstruction of Congress Is An Impeachable Offense
       When any one branch of government seeks to obstruct an 
     essential function of another branch, it threatens a central 
     feature of our republic: the separation of powers.\236\ In 
     the case where a President seeks to derogate the authority of 
     another branch, it can also undermine the President's 
     constitutional obligation to ``take Care that the Laws be 
     faithfully executed.'' \237\
       President Trump continues to thwart Congress' oversight and 
     investigative powers, which are essential constitutional 
     functions of the Legislative Branch. In McGrain v. Daugherty, 
     the Supreme Court firmly established that such inquiry power 
     is ``an essential and appropriate auxiliary to the 
     legislative function'' and included the ability to seek and 
     enforce demands for information.\238\

[[Page S1193]]

       The need to comply with subpoena-backed requests for 
     information, including in an Impeachment, has been explicitly 
     stated. In Kilbourn v. Thompson, the Supreme Court held that, 
     ``Where the question of such impeachment is before either 
     [the House or Senate] acting in its appropriate sphere on 
     that subject [of impeachment], we see 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.'' \239\
       Part of Congress' broad oversight authority is the power to 
     hold sitting presidents accountable for grave misconduct and 
     abuses of public trust through Impeachment. Indeed, Article 
     I, Section 2, Clause 5 of the U.S. Constitution gives the 
     House of Representatives ``the sole Power of Impeachment.'' 
     \240\ However, an Impeachment inquiry can only be discharged 
     through the cooperation of the governmental branch being 
     investigated; only this branch can provide documents and 
     witness testimony related to its own conduct. By refusing to 
     provide any information, President Trump is trying to stop 
     Congress from gathering relevant information and render the 
     Impeachment process toothless.\241\ As John Quincy Adams 
     noted, it would make a ``mockery'' of the Constitution's 
     Impeachment power for Congress to have the power to impeach 
     but ``not the power to obtain the evidence and proofs on 
     which their impeachment was based.'' \242\
       The Judiciary Committee also confirmed that subverting the 
     constitutionally vested powers of the Legislative Branch can 
     be an impeachable offense, when it previously approved 
     Articles of Impeachment charging President Richard Nixon with 
     the failure to comply with duly authorized congressional 
     subpoenas. The Judiciary Committee explained that:
       In refusing to produce these papers and things, Richard M. 
     Nixon, substituting his judgment as to what materials were 
     necessary for the inquiry, interposed the powers of the 
     Presidency against the lawful subpoenas of the House of 
     Representatives, thereby assuming to himself functions and 
     judgments necessary to the exercise of the sole power of 
     impeachment vested by the Constitution in the House of 
     Representatives.\243\
       Based on the above historical and case precedent, I 
     conclude that obstruction of Congress can be an impeachable 
     offense. I also conclude that a sitting President commits 
     obstruction of Congress by:
       1) Contravening the lawful authority of the Legislative 
     Branch;
       2) By imposing the powers of the presidency;
       3) Without lawful cause or excuse.
     B. The House of Representatives Exercised Its Lawful 
         Authority in the Impeachment Inquiry
       As explained in Section V, Subsection A of this Memorandum, 
     Congress has broad power to conduct oversight and issue 
     demands for information, and is vested with the sole power to 
     conduct Impeachment.
       In this case, the House of Representatives was using both 
     its lawful investigative and Impeachment authorities, when it 
     issued lawful subpoenas leading up to and after the adoption 
     of House Resolution 660 on October 31, 2019, which formalized 
     the ongoing investigations into whether sufficient grounds 
     existed for the House of Representatives to impeach President 
     Donald John Trump.\244\
       On September 9, 2019, the House Committees on Intelligence, 
     Foreign Affairs, and Oversight and Reform (hereinafter 
     ``Investigating Committees'') first announced that they would 
     be starting an investigation into reports that President 
     Trump and his associates might have been seeking assistance 
     from the Ukrainian government in his bid for reelection.\245\ 
     As part of this inquiry, the Investigating Committees 
     requested that the White House provide documents related to 
     the President's July 25th call with the Ukrainian 
     President.\246\
       Speaker Nancy Pelosi subsequently announced on September 
     24, 2019 that the House would be commencing ``an official 
     Impeachment inquiry.'' \247\ The Investigating Committees 
     then subpoenaed documents and witness testimony from the 
     White House,\248\ the Department of State,\249\ the 
     Department of Defense,\250\ the Office of Management and 
     Budget,\251\ the Department of Energy,\252\ and Rudy 
     Giuliani.\253\
       Once H.Res. 660 was approved by the House on October 31st, 
     the subpoenas issued as part of the ongoing investigations 
     leading up to the adoption of H.Res. 660 remained in full 
     force.\254\ In addition, the House Intelligence Committee 
     issued new subpoenas for witness testimony to officials at 
     the National Security Council,\255\ White House,\256\ Office 
     of Management and Budget,\257\ and the Office of the Vice 
     President.\258\
       As such, I conclude that there is overwhelmingly clear and 
     convincing evidence that the House used its lawful authority 
     in conducting its Impeachment inquiry.
     C. President Trump Used the Powers of the Presidency to 
         Subvert the Powers of Congress
       President Trump used the vast powers of his office to 
     prevent the House of Representatives from exercising its 
     oversight authority and sole power of Impeachment. The 
     President did so by ordering the entire Executive Branch not 
     to cooperate with the House Impeachment inquiry. White House 
     Counsel Pat Cipollone sent a letter to Speaker Pelosi and the 
     Investigating Committees on October 8, 2019, declaring that 
     ``President Trump cannot permit his Administration to 
     participate in this partisan inquiry under these 
     circumstances.'' \259\ It is notable that, even before 
     sending the October 8th letter, President Trump had made his 
     intentions clear to obstruct any and all oversight by 
     Congress, proclaiming, ``We're fighting all the subpoenas.'' 
     \260\ President Trump further asserted, ``As the President of 
     the United States, I have an absolute right, perhaps even a 
     duty, to investigate, or have investigated, CORRUPTION, and 
     that would include asking, or suggesting, other Countries 
     help us out!'' \261\
       The President's sweeping directive on October 8th had the 
     foreseeable effect of obstructing, and in fact, did 
     materially thwart, the House Impeachment inquiry. Following 
     President Trump's categorical order, the Department of 
     State,\262\ the Office of Management and Budget,\263\ the 
     Department of Energy,\264\ and the Department of Defense 
     \265\ failed to produce a single document in response to 
     requests or demands for records in their possession. To date, 
     the only documents the Executive Branch has released are 
     summaries of President Trump's phone calls with President 
     Zelensky on April 21, 2019 \266\ and July 25, 2019.\267\ Even 
     these documents are not complete. The President claimed the 
     July 25th call is, ``an exact word for word transcript of the 
     conversation.'' \268\ However, witness testimony from the 
     House Impeachment inquiry shows that there were key 
     omissions. NSC official Lt. Col. Vindman, who listened to the 
     calls, testified that edits that he provided to the draft 
     July 25th document based on his notes were not included in 
     the transcript that was released. Lt. Col. Vindman's edits 
     included a reference to Burisma and President Trump telling 
     President Zelensky that there are recordings of Vice 
     President Biden.\269\
       Additionally, as a result of the October 8th directive, 
     multiple Trump Administration officials have defied 
     congressional subpoenas and refused to testify in the 
     Impeachment proceedings.\270\ Overwhelming evidence of the 
     President's abuse of power has come to light, despite the 
     President's obstructionist efforts, largely because key 
     Administration officials risked their jobs and careers to 
     comply with subpoenas and requests issued by the House. Even 
     in those cases, agency leadership worked to ensure that these 
     officials would only be able to give limited testimony. In 
     particular, the Department of State,\271\ the Department of 
     Defense,\272\ and the Department of Energy \273\ prevented 
     Executive Branch employees who did participate as witnesses 
     from accessing documents that they identified as directly 
     relevant to the Impeachment inquiry--including their phone 
     records, emails, notes, and memoranda. As a result, these 
     witnesses were denied the opportunity to have documents that 
     could have helped them give more specific testimony, and some 
     had to rely on their own notes and recollections.\274\
       President Trump personally sought, through intimidation or 
     influence, to impede the testimony of officials that 
     cooperated with the House Impeachment inquiry. He 
     specifically sought to interfere with the testimonies of 
     Ambassador Gordon Sondland,\275\ Ambassador William 
     Taylor,\276\ Ambassador Marie Yovanovitch,\277\ Lt. Col. 
     Alexander Vindman,\278\ and Jennifer Williams.\279\
       There is indeed overwhelmingly clear and convincing 
     evidence that President Trump used the powers of his office 
     to prevent the House from exercising its constitutionally 
     granted authority to conduct oversight related to the 
     Impeachment inquiry.
     D. President Trump Obstructed the Impeachment Inquiry Without 
         Lawful Cause or Excuse
       Whether President Trump obstructed Congress turns on 
     whether there is evidence that he had legal cause or excuse 
     for his total non-cooperation with the Impeachment inquiry. I 
     will address how each of the arguments that the President's 
     Counsel have made in attempting to justify the President's 
     stonewalling do not provide sufficient legal excuse for his 
     conduct.

                D.1. Validity of Congressional Subpoenas

       The President's Counsel argue that subpoenas related to the 
     Impeachment proceeding are invalid, if they were issued 
     before the House voted to approve H.Res. 660 formalizing the 
     Impeachment inquiry on October 31, 2019. In the President's 
     trial brief, Counsel states that ``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.'' \280\ Relying on the argument that subpoenas 
     issued prior to the passage of H.Res. 660 were invalid, the 
     White House, Department of State, and the Department of 
     Defense instructed current and former employees not to 
     testify before the Investigating Committees in the 
     Impeachment proceedings.\281\
       The President's Counsel's argument broadly fails because it 
     goes against well-established case law recognizing Congress' 
     power to conduct investigations \282\ and issues 
     subpoenas,\283\ even when it is not engaged in an 
     Impeachment. Furthermore, the standing rules of the House 
     authorize a committee or subcommittee, with certain 
     limitations, to issue subpoenas ``[f]or the purpose of 
     carrying out any of its functions and duties.'' \284\
       Therefore, the relevant question on the validity of the 
     House subpoenas does not turn

[[Page S1194]]

     on whether they were issued before or after H.Res. 660, as 
     the President's Counsel argue. Rather, it should center on 
     whether they were issued as part of a lawful congressional 
     investigation.\285\ In this case, the subpoenas at issue 
     involved the legitimate purpose of investigating whether 
     President Trump and his associates sought assistance from the 
     Ukrainian government to influence the 2020 election. As a 
     result, there is convincing evidence that the House Permanent 
     Select Committee on Intelligence, the House Foreign Affairs 
     Committee, and the House Committee on Oversight and Reform 
     had valid investigative and subpoena authority, even before 
     the passage of H.Res. 660.
       Even if the argument made by the President's Counsel was 
     legitimate, the Trump Administration failed to abide by its 
     rule. Following the President's Counsel's own logic, the 
     President would have to recognize the validity of and comply 
     with subpoenas issued after the Impeachment inquiry was 
     formalized on October 31, 2019. Yet, the President did not 
     permit officials from OMB and the National Security Council 
     to testify even though they were subpoenaed after H.Res. 660 
     passed the House.\286\

                      D.2. Assertions of Privilege

       To the extent that the President has legitimate executive 
     privilege claims, he failed to properly assert them or to go 
     through the proper accommodation process to keep information 
     confidential.

             D.2.a. Presidential privilege is not absolute

       The President's Counsel have stood by the October 8th 
     letter from Mr. Cipollone to Speaker Pelosi declaring that 
     the President and his Administration would not participate in 
     the Impeachment inquiry.\287\ President Trump himself has 
     articulated his expansive view of his powers saying, 
     ``Honestly, we have all the material . . . They don't have 
     the material.'' \288\
       However, in United States v. Nixon, the Supreme Court 
     flatly rejected this kind of unlimited assertion of executive 
     power. The Court held that ``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 under all circumstances.'' \289\ Instead, 
     the Court found that, in an inter-branch dispute, when a 
     claim of presidential privilege is based merely on the 
     grounds of a generalized interest in confidentiality, ``the 
     generalized assertion of privilege must yield to the 
     demonstrated, specific need for evidence.'' \290\
       A related D.C. Circuit Court case, Senate Select Committee 
     on Presidential Campaign Activities v. Nixon, affirmed that 
     presidential privilege is not absolute and could be overcome 
     by a ``strong showing of need by another institution of 
     government.'' \291\ The Court in this case articulated the 
     following test in making its decision: Congress in using its 
     investigative powers may override presidential privilege when 
     it makes the requisite showing of need that ``the subpoenaed 
     evidence is demonstrably critical to the responsible 
     fulfillment of the Committee's function,'' such as a 
     legitimate oversight or legislative purpose.\292\
       In this case, Mr. Cipollone's October 8th letter makes 
     clear the President intended to exercise privileges over the 
     whole of the Executive Branch, regardless of whether an 
     agency was involved in foreign policy or national security 
     policy.\293\ In contrast, the Investigating Committees 
     overwhelmingly demonstrated a particularized interest in 
     obtaining information to ascertain whether the President used 
     the powers of his office to solicit foreign interference on 
     his behalf in the 2020 election. In addition, it would be 
     hard to think of a setting where congressional need for 
     information is greater than during an Impeachment, which is 
     the Constitution's most potent way to hold the President 
     accountable for his misconduct.\294\
       The President's Counsel further assert that senior advisors 
     to the President do not have to comply with congressional 
     subpoenas because they have ``absolute immunity.'' This 
     doctrine of absolute immunity has also been rejected by the 
     D.C. District Court in House Judiciary Committee v. Miers 
     \295\ and House Judiciary Committee v. McGahn.\296\

               D.2.b. Accommodation of legislative branch

       Moreover, even if President Trump did have a legitimate 
     need to keep information confidential, each branch of 
     government is required to accommodate the legitimate needs of 
     the others to maintain the separation of powers. If President 
     Trump had a valid need to keep confidential some of the 
     information that the House requested, the agencies and 
     offices involved could have entered into good-faith 
     negotiations with the House to resolve their conflicting 
     needs. The Courts have suggested that the Framers intended 
     dynamic compromise as the most effective way to solve 
     disputes between the branches and that view has been affirmed 
     by the longstanding historical practice of the branches.\297\ 
     In United States v. AT&T, the D.C. Circuit Court held that 
     ``Under this view, the coordinate branches do not exist in an 
     exclusively adversary relationship to one another when a 
     conflict in authority arises. Rather, each 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.'' \298\
       It is this accommodation process that is the norm, not a 
     wholesale refusal by one branch to another. ``Cooperation 
     dominates most congressional requests for information, with 
     the executive turning over the requested information as a 
     matter of routine.'' \299\ A complete breakdown in these 
     procedures is a rarity as ``information access disputes are 
     typically worked out through one of several intermediate 
     options'' such as the Executive Branch agency providing 
     redacted documents or requiring Congress to keep the 
     requested information confidential.\300\ A memorandum written 
     by the Office of Legal Counsel (OLC) during the 
     administration of President George H. W. Bush explains that 
     ``[I]f further negotiation is unavailing, it is necessary to 
     consider asking the President to assert executive 
     privilege.'' \301\ Traditionally, Executive Branch agency 
     branch officials then present their case for the assertion of 
     executive privilege to the President and the agency asks 
     Congress to hold its request in abeyance, pending the 
     President's decision.\302\
       The President's Counsel claim that the Executive Branch was 
     willing to enter into an accommodation process with the 
     House.\303\ However, whereas the presumption in an inter-
     branch dispute is cooperation, the White House's default 
     position has been total refusal of the House's requests for 
     information. To this day, the Trump Administration has not 
     turned over a single responsive document or worked to make a 
     single witness available for questioning by Congress. The 
     Administration has not sought an intermediate option to make 
     information available to Congress. Nor has the Executive 
     Branch ever formally invoked executive privilege or asked 
     Congress to hold its requests in abeyance pending the 
     President's decision to assert executive privilege.

                   D.2.c. Obstruction in Senate trial

       President Trump's obstruction of Congress and his failure 
     to resolve disputes with the Legislative Branch in good faith 
     continued into the Senate trial, as his Administration 
     continued to withhold the information that was subpoenaed 
     during the House inquiry. The President's Counsel even went 
     so far as to instruct the Senate that it could not consider 
     the evidence the House did obtain saying that ``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.'' \304\
       In addition, as the Senate Impeachment proceedings were 
     underway, new and material evidence of President Trump's 
     misconduct continued to come out. Lev Parnas, the associate 
     of Rudy Giuliani, asserted that President Trump was fully 
     aware of efforts to dig up ``dirt'' on his political rival, 
     as were Vice President Mike Pence, Attorney General William 
     Barr, and former Energy Secretary Rick Perry.\305\ According 
     to news reports, it also has come to light that President 
     Trump directed John Bolton, his then-national security 
     adviser, to help with his pressure campaign against the 
     Ukrainian government.\306\ Both Bolton and Parnas made it 
     clear during the Impeachment trial that they were willing to 
     testify before the Senate.\307\ Yet, President Trump sought 
     to discredit both witnesses \308\ and even threatened to 
     assert executive privilege to prevent John Bolton from coming 
     to testify and cooperating in the Impeachment trial.\309\

          D.3. Purported Defectiveness of Impeachment Inquiry

       The President's Counsel argue that the subpoenas issued by 
     the House are invalid not only because of when they were 
     issued. They argue that the Impeachment inquiry itself is 
     defective and unauthorized and therefore any compliance is 
     unnecessary.
       The President's Counsel argue that ``the House has never 
     undertaken the solemn responsibility of a presidential 
     impeachment inquiry without first authorizing a particular 
     committee to begin the inquiry'' and ``[t]hat has also been 
     the House's nearly unbroken practice for every judicial 
     impeachment for two hundred years.'' \310\
       As explained in Section V, Subsection D.1 of this 
     Memorandum, Congress' power to conduct investigations and 
     issue subpoenas, even when not as part of an Impeachment, has 
     been repeatedly and firmly settled by the Courts. Therefore, 
     even if one accepts that the Impeachment investigation was 
     invalid unless authorized by the House, it does nothing to 
     diminish the power of the committees at hand to engage in an 
     oversight investigation. Nor does it diminish the duty to 
     comply with subpoenas that were issued under this oversight 
     authority.
       The President's Counsel is contradicted by the cases of 
     President Johnson and Nixon, where a committee of 
     jurisdiction started taking steps toward Impeachment before 
     the full House took any action. In the Johnson Impeachment, 
     the Judiciary Committee considered Articles of Impeachment 
     before reporting them out for a vote by the House.\311\ In 
     the case of President Nixon, the Judiciary Committee employed 
     a Special Counsel to assist in the inquiry, before the House 
     explicitly authorized the Committee's investigation to 
     determine whether the House should impeach.\312\
       What's more, the President's Counsel's position appears to 
     be that the House must authorize an Impeachment before it has 
     gathered enough evidence to warrant one, and also that a 
     congressional investigation which begins to produce evidence 
     of grounds for Impeachment loses its investigative authority 
     until the House votes to formalize the Impeachment inquiry. 
     These arguments defy both logic and past precedent.

[[Page S1195]]

       Here, I am also persuaded by the House Impeachment 
     Managers' argument that the Constitution grants the ``sole 
     Power of Impeachment'' to the House of Representatives. In 
     addition, the Constitution says that, ``[t]he Senate shall 
     have the sole Power to try all Impeachments.'' \313\ Nowhere 
     does the Constitution empower the President to unilaterally 
     decide that an Impeachment is illegitimate. I conclude that 
     investigations leading up to H.Res. 660 and the formal 
     inquiry that continued afterward were duly authorized.

                        D.4. Further Litigation

       The President's Counsel argue that its categorical and 
     comprehensive defiance cannot be deemed to be obstruction of 
     Congress because the House has not sought judicial review of 
     the subpoenas issued as part of the Impeachment inquiry.
       This argument is unconvincing given that the involvement of 
     the Courts in information access disputes between the 
     Legislative and Executive Branches has been rare, at least 
     with respect to conflicts over House subpoenas. As the 
     Congressional Research Service explains:
       The traditional preference for political rather than 
     judicial solutions seems supported by the fact that neither 
     Congress nor the President appears to have turned to the 
     courts to resolve an investigative dispute until the 1970s . 
     . . The courts themselves have also generally sought to avoid 
     adjudicating investigative disputes between the executive and 
     legislative branches, instead encouraging settlement of their 
     differences through a political resolution. Consistent with 
     that approach, lower federal courts have suggested that 
     judicial intervention in investigative disputes ``should be 
     delayed until all possibilities for settlement have been 
     exhausted.'' . . . [In addition] some evidence suggests that 
     both the House and the courts have viewed judicial 
     involvement in an impeachment inquiry as inappropriate or in 
     excess of the judiciary's power.\314\
       Moreover, the argument of the President's Counsel is 
     ineffective in the context of the dilatory tactics the Trump 
     Administration has been using in other pending cases where 
     the House also has subpoenaed documents. In particular, the 
     Administration has used arguments which, if taken together, 
     seem to assert the President cannot be held accountable by 
     either the Judicial or Legislative Branch. These stall 
     tactics were highlighted in a case currently pending in the 
     D.C. Circuit Court, Committee on the Judiciary v. McGahn. In 
     this case, the House Judiciary Committee is trying to enforce 
     a subpoena against former White House Counsel, Don McGahn. 
     The D.C. District Court ruled against the DOJ, which claimed 
     that McGahn had absolute immunity from congressional 
     subpoenas for his testimony. In its decision, the Judge 
     compares the DOJ's inconsistent arguments in the McGahn case 
     with a series of cases regarding congressional subpoenas for 
     the President's tax returns. The Judge points out that the:
       DOJ stood silent with respect to the jurisdictional 
     question, as President Trump (in his personal capacity) has 
     invoked the authority of the federal courts, on more than one 
     occasion, seeking resolution of a dispute over the 
     enforceability of a legislative subpoena concerning his tax 
     returns. A lawsuit that asserts that a legislative subpoena 
     should be quashed as unlawful is merely the flip side of a 
     lawsuit that argues that a legislative subpoena should be 
     enforced. And it is either DOJ's position that the federal 
     courts have jurisdiction to review such subpoena-enforcement 
     claims or that they do not. By arguing vigorously here that 
     the federal courts have no subject-matter jurisdiction to 
     entertain the Judiciary Committee's subpoena-enforcement 
     action, yet taking no position on the jurisdictional basis 
     for the President's maintenance of lawsuits to prevent 
     Congress from accessing his personal records by legislative 
     subpoena, DOJ implicitly suggests that (much like absolute 
     testimonial immunity) the subject-matter jurisdiction of 
     the federal courts is properly invoked only at the 
     pleasure of the President.\315\
       The Judge in the McGahn case also noted that the DOJ made 
     conflicting arguments in the House's lawsuit seeking grand 
     jury evidence that contributed to former Special Counsel 
     Robert Mueller's report. The Judge goes on to write:
       During oral argument, when one of the panelists asked DOJ 
     about the district court's subject-matter jurisdiction to 
     entertain the House's legal action, DOJ Counsel remarked 
     that, while the Executive branch was ``not advancing that 
     argument[,]'' it believed that DOJ ``certainly has both 
     standing and jurisdiction'' to seek review of the district 
     court's injunction . . . But if DOJ's position is that the 
     federal courts have the authority to entertain a legal claim 
     concerning the House's contested request for allegedly 
     privileged grand jury materials, how can it be heard to 
     argue, nearly simultaneously, that the instant Court has no 
     jurisdiction to entertain a legal claim concerning the 
     enforceability of a House committee's subpoena compelling the 
     testimony of senior-level presidential aides?\316\
       Further litigation is also problematic because, unlike 
     Presidents Nixon and Clinton who were in their second terms, 
     President Trump's misconduct is immediately preceding and, in 
     anticipation of, the upcoming presidential election. The crux 
     of President Trump's scheme was to corruptly use the vast 
     powers of his presidency to invite foreign interference into 
     the 2020 election in order to benefit himself politically. 
     Allowing President Trump to delay this Impeachment through 
     litigation would enable him to keep relevant documents and 
     witnesses from coming out until after the 2020 election. It 
     could also embolden him to engage in additional unfettered 
     misconduct aimed at increasing his chances of getting 
     reelected.
       This threat to the integrity of our elections is exactly 
     the kind of misconduct that the Framers were worried about. 
     In George Mason's view, a risk of election fraud ``furnished 
     a peculiar reason in favor of impeachments[.]'' \317\ Another 
     exchange between two delegates, William Richardson Davie and 
     James Wilson, highlights the importance of safeguarding 
     against a corrupt president that would cheat to get 
     reelected. Davie stated, `` `[i]f he be not impeachable 
     whilst in office, he will spare no efforts or means whatever 
     to get himself reelected.' [Davie] considered this as an 
     essential security for the good behaviour of the Executive.'' 
     \318\ Wilson concurred with Davie ``in the necessity of 
     making the Executive impeachable while in office.'' \319\

                            D.5. Due Process

       The President's Counsel assert that the Impeachment inquiry 
     is defective because of a lack of due process protections for 
     President Trump. Specifically, in Mr. Cipollone's October 8th 
     letter, he asserts that the President was entitled to due 
     process rights during the House's Impeachment inquiry, which 
     he was not afforded, including ``the right to see all 
     evidence, to present evidence, to call witnesses, to have 
     Counsel present at all hearings, to cross-examine all 
     witnesses, to make objections . . . and to respond to 
     evidence and testimony.'' \320\
       Procedural due process--meaning the legal procedures to be 
     used in a proceeding--is rooted in basic constitutional 
     principles of fundamental fairness. Determining due process 
     of the law ``require[s] . . . that state action, whether 
     through one agency or another, shall be consistent with the 
     fundamental principles of liberty and justice which lie at 
     the base of all our civil and political institutions and not 
     infrequently are designated as `law of the land.' '' \321\
       In evaluating whether President Trump was afforded 
     protections that are consistent with the ``fundamental 
     principles of liberty and justice,'' the analysis should 
     center on whether he was given rights customarily given to 
     presidents in previous Impeachments.
       During the Clinton Impeachment inquiry, the President's 
     Counsel was invited to attend all Judiciary Committee 
     executive sessions and open hearings, was allowed to cross-
     examine witnesses, object to pieces of evidence, suggest that 
     the Committee review additional evidence, and respond to 
     evidence used by the Committee.\322\ During the Nixon 
     Impeachment inquiry, the President's Counsel was not invited 
     to participate in the Judiciary Committee's proceedings until 
     months after the inquiry's authorizing resolution was 
     passed.\323\ Once invited, Nixon's counsel was allowed to 
     attend the initial presentation of evidence and respond to it 
     in later proceedings, attend later hearings with witnesses, 
     submit requests to call witnesses, cross-examine witnesses 
     that were called, and object to pieces of evidence.\324\
       The House's Impeachment inquiry into President Trump 
     afforded the President rights that were consistent with these 
     precedents from prior presidential Impeachments. The 
     President's Counsel was given the opportunity to participate 
     in the House Judiciary Committee's proceedings during the 
     impeachment inquiry. This included the right to attend every 
     Judiciary Committee hearing; request additional witnesses 
     during these hearings; present evidence orally or in writing; 
     have the President's Counsel cross-examine witnesses; and 
     raise objections during Judiciary Committee hearings.\325\ In 
     a November 29th letter to the President, House Judiciary 
     Committee Chairman Nadler inquired which of these privileges 
     the President's Counsel wished to exercise.\326\ In his 
     December 6th response, Mr. Cipollone chose not to exercise 
     any of these rights and claimed the Impeachment inquiry 
     violated due process rights.\327\
       After reviewing this comparison, I conclude President Trump 
     has been afforded as least as much due process protection as 
     Presidents Nixon and Clinton, and therefore standards of 
     fundamental fairness requisite for due process have been met 
     in the current Impeachment proceeding.
       Based on the above analysis, I find that there is 
     overwhelmingly clear and convincing evidence that President 
     Trump obstructed the House Impeachment inquiry without lawful 
     cause or excuse and that President Trump is guilty on the 
     second Article of Impeachment.


                    VII. LACK OF EVIDENTIARY RECORD

     A. Senate's Role in Lack of Witnesses and Documents
       As I have explained, the House of Representatives, as part 
     of its Impeachment inquiry, subpoenaed documents and 
     witnesses from multiple Executive Branch agencies. To date, 
     the Administration has produced zero responsive documents. In 
     fact, the Administration has engaged in a coordinated and 
     systematic effort to deny relevant evidence and testimony to 
     the House of Representatives in defiance of lawful 
     Congressional subpoenas.\328\
       Fortunately, patriotic and law-abiding federal employees 
     and former officials complied

[[Page S1196]]

     with lawful subpoenas and appeared at depositions or public 
     hearings. As described previously, testimony provided by 
     witnesses is probative of the President's guilt on both 
     Articles of Impeachment.
       Once the Articles of Impeachment were received by the 
     Senate, the Senate had the opportunity to utilize its own 
     oversight and Impeachment authority pursuant to Article I of 
     the Constitution to gather relevant documents and testimony. 
     However, in this Impeachment trial, unlike previous ones 
     conducted by the Senate, whether of Presidents or other 
     officials, no witnesses were allowed.\329\
       My Republican colleagues voted against holding a fair 
     trial. For example, Leader McConnell initially sought to have 
     a set of rules governing this Impeachment trial that would 
     not have included a provision to automatically adopt the 
     House's evidence.\330\ He also sought to have twenty-four 
     hours of opening arguments over two days to speed up the 
     trial.\331\ My Republican colleagues relented on these 
     points, allowing the House Impeachment Managers and the 
     President's Counsel to each have twenty-four hours of 
     argument over three days.\332\ The Republican-authored 
     resolution ultimately did not guarantee witnesses, only 
     providing for a vote on whether witnesses could be heard at 
     the end of arguments and the question period.\333\ From the 
     get-go, my Republican colleagues were reluctant to have 
     evidence and arguments put in front of the American people 
     for judgment.
       My Democratic colleagues offered eleven amendments in an 
     effort to ensure a fair trial.\334\ The amendments, if 
     adopted, would have permitted Senators and the American 
     people to see relevant evidence and hear from witnesses. 
     These amendments were defeated--almost entirely along party 
     lines.\335\
       After the question and answer portion of the Impeachment 
     trial, the Senate voted on amendments offered by my 
     Democratic colleagues that would have provided for witnesses 
     and documents.\336\ These amendments were again defeated, 
     largely along partisan lines.\337\ It is crucial to note, 
     that this second series of votes was taken after reports that 
     Ambassador Bolton's draft manuscript contained evidence 
     relevant and central to the allegations in the Articles of 
     Impeachment. Through the end of the trial, the vast majority 
     of my Republican colleagues did not want to hear from 
     Ambassador Bolton, other relevant witnesses, or see documents 
     that would likely reveal evidence damaging to the President.
       Further, Leader McConnell compared his approach in this 
     trial to that of the Impeachment Trial of President Clinton, 
     when Senators voted on whether to hear witnesses at the end 
     of arguments.\338\ Leader McConnell's assertion is 
     disingenuous considering that the Clinton Impeachment trial 
     occurred after a lengthy and comprehensive investigation led 
     by the then independent Counsel, Kenneth Starr, which 
     included tens of thousands of pages of evidence and recorded 
     testimony. During the Clinton Impeachment trial, witnesses 
     had also previously testified in grand jury proceedings.\339\ 
     There were no surprises as to what witnesses would say. 
     President Trump's Impeachment Trial represents a stark 
     departure from what occurred during the Clinton Impeachment 
     Trial and indeed, sets a damaging and devastating precedent.


 VIII. CONCLUSION: REMOVAL OF PRESIDENT TRUMP IS THE SOLE APPROPRIATE 
                                 REMEDY

       Conviction and removal of a President from office is a high 
     standard, and one that should only be arrived at when there 
     are no other remedies available. As I laid out during the 
     1999 Impeachment trial of President Clinton, ``the 
     independence of the Impeachment process from the prosecution 
     of crimes underscores the function of Impeachment as a means 
     to remove a President from office, not because of criminal 
     behavior, but because the President poses a threat to the 
     Constitutional order.'' \340\ Furthermore, during the Clinton 
     Impeachment proceedings, I concluded that the President's 
     improper conduct must represent a continuing threat to the 
     American people.\341\ In the current case, I have concluded 
     that allowing President Trump to remain in office would pose 
     such a continuing threat to our electoral system and the 
     Constitution.
     A. Subversion of the Constitutional Order and an 
         Unaccountable President
       The President's Counsel have argued that even if President 
     Trump abused the power of his office to withhold U.S. 
     military assistance to an ally, in order to pressure that 
     country to conduct investigations for his personal and 
     political benefit, doing so would not be an impeachable 
     offense. According to the President's Counsel, ``If a 
     President does something which he believes will help him get 
     elected--in the public interest--that cannot be the kind of 
     quid pro quo that results in impeachment.'' \342\ It is on 
     this basis that the President's Counsel further argue that, 
     even if the President did in fact condition security 
     assistance for Ukraine on politically-motivated 
     investigations, it would not be an impeachable offense.\343\ 
     That argument violates the fundamental principle of our 
     constitutional system that no one is above the law.
       Furthermore, President Trump has shown that he will block 
     any congressional check on his misuse of office by ignoring 
     subpoenas as he pleases, without asserting a lawful cause. At 
     the same time, Trump Administration lawyers have been arguing 
     in various court cases that the Judiciary has no role in 
     enforcing the very subpoenas from Congress that the 
     Administration is resisting.
       President Trump's defiance of both Congress and the Courts 
     on subpoenas threatens to nullify the constitutional 
     authority of both the House and Senate, not merely to check 
     the personal excesses of any given president, but also to 
     oversee the entire Executive Branch. It validates and 
     encourages the President's strategy of large-scale 
     obstruction of congressional inquiries. It emboldens the 
     President to defy investigations into his misconduct and 
     strengthens the President's determination to resist 
     additional congressional oversight.
       The result of permitting the Executive Branch to wholly 
     disregard Congressional requests for information is not only 
     to neuter the Impeachment power, but more profoundly, impact 
     Congress as a fundamental check on executive mismanagement, 
     abuse, corruption, and overreach embodied in the power of 
     congressional oversight.
     B. Ongoing Harm to the Constitutional Order
       An additional basis for seeking the removal of a President 
     from office is that his conduct poses continuing harm to the 
     constitutional order. President Trump's solicitation of 
     foreign election interference, based on the perpetuation and 
     amplification of baseless and unfounded theories that harm 
     his political opponents, serves to damage the fundamental 
     institutions of our democracy.
       President Trump's behavior was not a one-time indiscretion, 
     but rather part of a pattern of behavior to invite foreign 
     influence into our elections which thereby undermines the 
     constitutional order and harms the integrity of our 
     democracy. In 2016, then-candidate Trump called on Russia to 
     hack the emails of his political rival, Secretary 
     Clinton.\344\ He also promoted hacked emails from Secretary 
     Clinton's campaign that were stolen by Russian Military 
     Intelligence units, in order to benefit himself politically 
     in the 2016 election.\345\ In June 2019, President Trump 
     publicly announced that he would take information on his 
     political rival from a foreign government.\346\ Moreover, he 
     pressured Ukraine to announce investigations into his 
     political opponents to benefit his 2020 campaign. Indeed, 
     even after the House began its Impeachment inquiry and he was 
     confronted by allegations of soliciting foreign interference, 
     President Trump doubled down by asking China also to 
     investigate the Bidens.\347\ In addition, as stated earlier, 
     his personal attorney, Mr. Giuliani as recently as December 
     2019, was working to gather disinformation on political 
     opponents.\348\
       The President has in no way taken responsibility for these 
     actions or shown that he understands the consequences of his 
     behavior and its harm to the Constitution. After the 
     Impeachment trial in 1999, President Clinton apologized to 
     the nation and acted contrite. In contrast, President Trump 
     has not, in any way, admitted wrongdoing and clings to the 
     fiction that his call with President Zelensky was 
     ``perfect.'' \349\ This lack of remorse, combined with his 
     past and present actions, leaves open the possibility that 
     President Trump will repeat such offenses in the future.
     C. Elections Cannot be the Sole Remedy
       It has been argued that Impeachment and removal of the 
     President is not the appropriate remedy when the country is 
     roughly ten months away from an election. The President's 
     Counsel argue that any judgment regarding the President's 
     actions should be left to the American people when they go to 
     the polls in November 2020. However, by soliciting foreign 
     interference in the coming election, President Trump's 
     actions threaten the viability of our elections and the very 
     foundation of our constitutional order to serve as a check on 
     the President's conduct.
       The Founders were acutely aware of the dangers of foreign 
     election interference. As Alexander Hamilton said in 
     Federalist Paper Number 68, ``[t]he desire [of] foreign 
     powers to gain an improper ascendant in our Counsels'' was 
     one of ``the most deadly adversaries of republican 
     government.'' \350\ The Founders knew this risk was 
     inevitable in an election setting. In a letter to John Adams, 
     Thomas Jefferson wrote ``You are apprehensive of foreign 
     Interference, Intrigue, Influence. So am I--But, as often as 
     Elections happen, the danger of foreign Influence recurs.'' 
     \351\
       I reject the notion, put forward by the President's 
     Counsel, that a President who believes his reelection is in 
     the best interest of the country cannot be impeached for 
     abusing his power to tilt the next election in his favor. The 
     Impeachment clause cannot be read to provide a carte blanche 
     for the President to engage in illegal acts \352\ that 
     directly undermine the operation of our free and fair 
     electoral system. The remedy for a President attempting to 
     corrupt the next election cannot be allowing the President to 
     corrupt that election. Even a well-intentioned autocrat is 
     still an autocrat and not a President subject to the 
     Constitution. If accepted as true, these views would pave the 
     way for the type of autocratic government that the Founders 
     feared and fought to leave behind.
       For elections to express the will of the electorate, they 
     must be free and fair. Elections must be legitimate, and the 
     public must have confidence in them. Even the perception that 
     our elections are tainted would lead voters to question 
     whether their vote matters. That is why one of our jobs as 
     lawmakers is to ensure the integrity of the electoral 
     process. We work to ensure that every vote cast is fairly and 
     accurately counted.

[[Page S1197]]

     We work to ensure that external forces, foreign or otherwise, 
     cannot sway or pre-determine the outcome of the election. The 
     United States government should not be playing a role in 
     advancing the goals of foreign powers that seek to use our 
     institutions to further their own interests.
       Acquitting President Trump would undermine the integrity of 
     our elections and clear the way for Russia or other countries 
     to repeat in 2020, and beyond, the kind of election 
     interference that the Intelligence Community unanimously 
     assessed occurred in the 2016 election. Through acquittal, 
     the Senate will give its blessing for President Trump to use 
     any means at his disposal to sway the next election in his 
     favor, with no consequences. President Trump has already 
     demonstrated unequivocally that he has no compunction about 
     violating the law, obstructing congressional oversight, and 
     putting our nation and allies at risk. The difference now 
     will be that President Trump will know that the Senate will 
     give him cover for his future abuses of office. The ongoing 
     threat to the constitutional order must be remedied, and 
     therefore removal of the President is the only logical 
     finding in this case.


                                endnotes

       1. H.R. Res. 755, 116th Cong. (2019).
       2. U.S. Const. art. I, Sec. 3, cl. 6; 166 Cong. Rec. 10, 
     S268 (daily ed. Jan. 16, 2020).
       3. The Federalist No. 65, at 441 (Alexander Hamilton) 
     (Jacob E. Cooke ed., 1961) (emphasis in original).
       4. U.S. Const. art. I, Sec. 3, cl. 6.
       5. U.S. Const. art. II, Sec. 4.
       6. U.S. Const. art III, Sec. 3, cl. 1.
       7. Staff of H. Comm. on the Judiciary, 116th Cong., Rep. on 
     Constitutional Grounds for Presidential Impeachment 14 (Comm. 
     Print 2019).
       8. 2 Sir William Blackstone, Commentaries on the Laws of 
     England 2152 (William Carey Jones ed., 1976).
       9. Id. at 2153.
       10. Charles Doyle, Cong. Research Serv., 98-882, 
     Impeachment Grounds: A Collection of Selected Materials 4 
     (1998).
       11. The Federalist No. 65, supra note 3, at 439 (emphasis 
     in original).
       12. 2 The Records of the Federal Convention of 1787 550 
     (Max Farrand ed., 1911).
       13. Id.
       14. 4 The Debates in the Several State Conventions on the 
     Adoption of the Federal Constitution 113 (Jonathon Elliot 
     ed., 2nd ed. 1861).
       15. Michael J. Gerhardt, The Federal Impeachment Process: A 
     Constitutional and Historical Analysis 21 (3rd ed. The 
     University of Chicago Press 2019) (1996).
       16. 2 Joseph Story, Commentaries on the Constitutions 799 
     at 269-70 quoting William Rawle, A View of the Constitution 
     of the United States at 213 (2d ed. 1829).
       17. Staff of H. Comm. on the Judiciary, 93rd Cong., Rep. on 
     Constitutional Grounds for Presidential Impeachment 27 (Comm. 
     Print 1974).
       18. 2 The Records of the Federal Convention of 1787, supra 
     note 12, at 64-65.
       19. Id. at 550
       20. Id.
       21. Id.
       22. Id.
       23. Id. at 551.
       24. Id. at 600.
       25. Trial Memorandum of President Donald J. Trump, In 
     Proceedings Before the United States Senate 1 (Jan. 20, 
     2020).
       26. U.S. Const. art. I, Sec. 3, cl. 7.
       27. 1 The Collected Works of James Wilson 736 (Kermit L. 
     Hall and Mark David Hall eds., 2007).
       28. Memorandum from William Barr, Attorney General, 
     Department of Justice, to Rod Rosenstein, Deputy Attorney 
     General, Department of Justice, and Steve Engel, Assistant 
     Attorney General, Department of Justice 12 (June 8, 2018) (on 
     file with the New York Times) (emphasis in original).
       29. 2 The Records of the Federal Convention of 1787, supra 
     note 12, at 65-66.
       30. The Federalist No. 68, at 458-459 (Alexander Hamilton) 
     (Jacob E. Cooke ed., 1961); 1 The Records of the Federal 
     Convention of 1787 319 (Max Farrand, ed., 1911); 2 The 
     Records of the Federal Convention of 1787, supra note 12, at 
     271-272.
       31. 2 The Records of the Federal Convention of 1787, supra 
     note 12, at 268.
       32. The Federalist No. 22, at 142 (Alexander Hamilton) 
     (Jacob E. Cooke ed., 1961).
       33. Id.
       34. Charles L. Black, Jr. & Philip Bobbit, Impeachment: A 
     Handbook, New Edition 17 (2018).
       35. The Federalist No. 65, supra note 3, at 441; Laurence 
     Tribe & Joshua Matz, To End a Presidency: The Power of 
     Impeachment 127 (2018).
       36. The Federalist No. 65, supra note 3, at 441.
       37. Id. at 442.
       38. Opinion Memorandum of United States Senator John F. 
     Reed, Trial of President William Jefferson Clinton 1 (Feb. 
     14, 1999).
       39. 145 Cong. Rec. 6, S260 (daily ed. Jan. 15, 1999) 
     (statement of Mr. Manager McCollum).
       40. Opinion Memorandum of U.S. Senator John F. Reed, supra 
     note 38, at 6.
       41. Id.
       42. Black & Bobbitt, supra note 34.
       43. Id. (Black's analysis is cited by several other 
     scholars as persuasive; See e.g., Laurence Tribe and Joshua 
     Matz, To End a Presidency: The Power of Impeachment 137 
     (2018).
       44. 2 The Records of the Federal Convention of 1787, supra 
     note 12, at 67.
       45. The Federalist No. 69, at 463 (Alexander Hamilton) 
     (Jacob E. Cooke ed., 1961).
       46. 2 The Records of the Federal Convention of 1787, supra 
     note 12, at 65.
       47. Id. at 67.
       48. H.R. Rep. No. 93-1305, at 139 (1974).
       49. S. Doc. No. 58-133, at 5 (1905); S. Doc. No. 69-101, at 
     1 (1926); S. Doc. No. 72-215, at 2 (1933). These judges were 
     district judges Charles Swayne of Florida, George English of 
     Illinois, and Harold Louderback of California.
       50. James M. Naughton, Nixon Says a President Can Order 
     Illegal Actions Against Dissidents, Special to N.Y. Times, 
     May 19, 1977, available at https://www.nytimes.com/1977/05/
19/archives/nixon-says-a-president-can-order-illegal-actions-
against-dissidents.html.
       51. Black's Law Dictionary 13 (11th ed. 2019).
       52. H.R. Rep. No. 93-1305, at 139 (1974).
       53. Id. at 3, 139-40.
       54. Id. at 4, 139, 140.
       55. Id. at 180.
       56. H.R. Rep. No. 116-346, at 5 (2019).
       57. Impeachment Inquiry: Fiona Hill and David Holmes Before 
     the H. Perm. Select Comm. on Intelligence, 116th Cong. 40 
     (2019) (statement of Dr. Fiona Hill). (On November 21, 2019, 
     NSC senior adviser Fiona Hill described the theory of 
     Ukrainian interference in the 2016 election as ``a fictional 
     narrative that is being perpetrated and propagated by the 
     Russian security services themselves.'')
       58. Scott Shane, How a Fringe Theory About Ukraine Took 
     Root in the White House, N.Y. Times, Oct. 3, 2019, https://
www.nytimes.com/2019/10/03/us/politics/trump-ukraine-
conspiracy.html.
       59. Office of the Director of National Intelligence, 
     National Intelligence Council, Assessing Russian Activities 
     in Recent US Elections ii (2017). (The Intelligence Community 
     unanimously concluded on January 6, 2017, that Russia 
     interfered in the 2016 election to ``undermine public faith 
     in the US democratic process, denigrate Secretary Clinton and 
     her electability and potential Presidency.'' The Intelligence 
     Community further assessed that ``Putin and the Russian 
     Government developed a clear preference for President-elect 
     Trump.'')
       60. 1 Robert S. Mueller, III, Report On The Investigation 
     Into Russian Interference In The 2016 Presidential Election 
     1-2 (Mar., 2019). (The Special Counsel's investigation into 
     Russian interference in the 2016 concluded that ``. . . the 
     Russian government perceived it would benefit from a Trump 
     presidency and worked to secure that outcome, and that the 
     campaign expected it would benefit electorally from 
     information stolen and released through Russian efforts . . 
     .'')
       61. 2 Robert S. Mueller, III, Report On The Investigation 
     Into Russian Interference In The 2016 Presidential Election 
     23 (Mar., 2019).
       62. 1 Mueller, supra note 60, at 1.
       63. Interview of: George Kent Before the H. Perm. Select 
     Comm. On Intelligence, Joint with the Comm. on Oversight and 
     Reform and the Comm. on Foreign Affairs, 116th Cong. 268 and 
     275 (2019).
       64. Interview of: Kurt Volker Before the H. Perm. Select 
     Comm. On Intelligence, Joint with the Comm. on Oversight and 
     Reform and the Comm. on Foreign Affairs, 116th Cong. 37 
     (2019). (As part of Biden's role as the lead on Ukraine 
     policy for the Obama Administration, he called for 
     institutional reform in the justice sector, including the 
     firing of then Prosecutor General Victor Shokin. The Obama 
     administration had urged his resignation because he was not 
     actively investigating serious cases of corruption, and 
     threatened to withhold $1 billion in loan guarantees. The 
     call for Shokin to resign was the unanimous position of the 
     United States and the West. Multiple witnesses testified that 
     Vice President Biden was acting in accordance with bipartisan 
     US policy towards Ukraine. For example, Ambassador Volker 
     stated: ``When Vice President Biden made those 
     representations . . . he was representing U.S. policy at the 
     time.''); Impeachment Inquiry: Ambassador Kurt Volker and 
     Timothy Morrison Before the H. Perm. Select Comm. on 
     Intelligence, 116th Cong. 20 (2019) (statement of Amb. 
     Volker). (Ambassador Volker testified at his public hearing, 
     ``it's not credible to me that former Vice President Biden 
     would have been influenced in any way by financial or 
     personal motives in carrying out his duties as Vice 
     President.''); Daryna Krasnolutska, Kateryna Choursina and 
     Stephanie Baker, Ukraine Prosecutor Says No Evidence of 
     Wrongdoing by Bidens, Bloomberg, May 16, 2019, https://
www.bloomberg.com/news/articles/2019-05-16/ukraine-
prosecutor-says-no-evidence-of-wrongdoing-by-bidens. 
     (Allegations of wrong doing by Hunter Biden have also been 
     found to be without merit including by then Prosecutor 
     General Lutsenko who stated in mid-May 2019, that he had 
     found no evidence of wrongdoing by Hunter Biden, recanting 
     his previous allegations.)
       65. See e.g. Arlette Saenz, Joe Biden Announces He is 
     Running for President in 2020, CNN, Apr. 25, 2019, https://
www.cnn.com/2019/04/25/politics/joe-biden-2020-president/
index.html. (Vice President Biden declared his candidacy for 
     president on April 25, 2019, following months of speculation 
     about whether he would run and being cast by the press as a 
     formidable rival to President Trump.)
       66. Trial Memorandum of the United States House of 
     Representatives, In the Impeachment Trial of President Donald 
     J. Trump 3 (Jan. 18, 2020).

[[Page S1198]]

  

       67. Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to 
     Push for Inquires that Could Help Trump, N.Y. Times, May 9, 
     2019, https://www.nytimes.com/2019/05/09/us/politics/
giuliani-ukraine-trump.html. (According to Mr. Giuliani, the 
     President was fully witting of the Mr. Giuliani's activities 
     to further the scheme. Mr. Giuliani told the New York Times 
     that the President, ``basically knows what I'm doing, sure, 
     as his lawyer,'' and, ``[m]y only client is the president of 
     the United States. He's the one I have an obligation to 
     report to, tell him what happened.'')
       68. See generally Karen Freifeld & Aram Roston, Exclusive: 
     Trump Lawyer Giuliani was Paid $500,000 to Consult on 
     Indicted Associate's Firm, Reuters, Oct. 14, 2019, https://
www.reuters.com/article/us-usa-trump-whistleblower-giuliani-
excl/exclusive-trump-lawyer-giuliani-was-paid-500000-to-
consult-on-indicted-associates-firm-idUSKBN1WU07Z; Rosalind 
     S. Helderman, Josh Dawsey, Paul Sonne and Tom Hamburger, How 
     Two Soviet-Born Emigres Made it into Elite Trump Circles--and 
     the Center of the Impeachment Storm, Washington Post, Oct. 
     12, 2019, https://www.washingtonpost.com/politics/how-two-
soviet-born-emigres-made-it-into-elite-trump-circles-and-
the-center-of-the-impeachment-storm/2019/10/12/9a3c03be-
ec53-11e9-85c0-85a098e47b37_story.html; Kenneth P. Vogel, 
     Ben Protess and Sarah Maslin Nir, Behind the Deal that put 
     Giuliani Together with a Dirt-Hunting Partner, N.Y. Times, 
     Nov. 6, 2019, https://www.nytimes.com/2019/11/06/us/
politics/ukraine-giuliani-charles-gucciardo.html; United 
     States of America v. Lev Parnas, Igor Fruman, David 
     Correia, And Andrey Kukushkin, Defendants. No. 19 CRIM 725 
     (S.D.N.Y filed October 9, 2019). (In the spring of 2018, 
     Soviet born businessmen Lev Parnas and Igor Fruman had 
     multiple contacts with President Trump and his associates. 
     Mr. Parnas and Mr. Fruman donated $325,000 to the pro-
     Trump Super Pac America First Action through an LLC. 
     Through those contacts, they forged a relationship with 
     Trump personal attorney Rudy Giuliani. In August, 2018, 
     Mr. Parnas and Mr. Fruman hired Giuliani for $500,000 to 
     provide legal advice for their company ``Fraud 
     Guarantee.'' Press reports indicate that Fraud Guarantee 
     appears to have no customers. On October 10, 2019 a 
     federal indictment from the Southern District of New York 
     charged Mr. Parnas and Mr. Fruman with funneling illegal 
     campaign contributions from foreign donors to U.S. 
     government officials and political action committees.)
       69. See Kim Hjelmgaard, Ukraine Opens Case Against Former 
     Prosecutor Yuriy Lutsenko, USA Today, Oct. 1, 2019, https://
www.usatoday.com/story/news/world/2019/10/01/ukraine-opens-
case-against-ex-prosecutor-yuriy-lutsenko/3828779002/. (Mr. 
     Lutsenko was fired in late August 2019 by newly-elected 
     President Zelensky. In October 2019, Ukraine's State Bureau 
     of investigations (SBI) opened criminal proceedings against 
     Mr. Lutsenko over possible abuse of power charges, stemming 
     from illegal gambling operations.)
       70. See Christopher Miller, Why was Ukraine''s Top 
     Prosecutor Fired? The Issue at the Heart of the Dispute 
     Gripping Washington, Radio Free Europe, Sep. 24, 2019, 
     https://www.rferl.org/a/why-was-ukraine-top-prosecutor-fired-
viktor-shokin/30181445.html. (Mr. Shokin had served as the 
     Prosecutor General during the Poroshenko administration from 
     February 2015-March 2016. In the fall of 2015, the Obama 
     Administration grew concerned that Mr. Shokin, despite 
     promises to increase anti-corruption investigations, had not 
     followed through, including on promises to investigate 
     corruption allegations against the Ukrainian energy company 
     Burisma. In March 2016, Vice President Biden called for Mr. 
     Shokin to be fired and told Ukrainian authorities that the 
     United States would withhold $1 billion in loan guarantees if 
     he was not relieved of his position. The U.S. position that 
     Mr. Shokin should be removed and replaced with a prosecutor 
     general that was dedicated to institutional reforms was 
     coordinated with European allies and partners and held 
     popular support inside Ukraine. On March 29, 2016, the 
     Ukrainian Rada (parliament) voted overwhelmingly in approval 
     of President Poroshenko's decision to fire Mr. Shokin); 
     Interview of: George Kent, supra note 63, at 45. (Regarding 
     Mr. Shokin, Deputy Assistant Secretary Kent, a leading 
     authority on rule of law and anti-corruption efforts, 
     assessed in his deposition, ``There was a broad-based 
     consensus that he [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 having covered up crimes that were known to have 
     been committed.'')
       71. Interview of: George Kent, supra note 63, at 47. (The 
     Skype call between Mr. Shokin and Mr. Giuliani occurred after 
     Mr. Shokin was denied a visa to travel to the United States, 
     based on his record of corrupt dealings. Deputy Assistant 
     Secretary George Kent testified that the State Department 
     objected to the visa because Mr. Shokin was ``very well and 
     very unfavorably known to us. And we felt, under no 
     circumstances, should a visa be issued to someone who 
     knowingly subverted and wasted U.S. taxpayer money.'' Mr. 
     Kent further testified that White House aide Robert Blair 
     called to follow up on why Shokin was denied a visa.); 
     Deposition of: Marie ``Masha'' Yovanovitch, Before the H. 
     Perm. Select Comm. On Intelligence, Joint with the Comm. on 
     Oversight and Reform and the Comm. on Foreign Affairs, 116th 
     Cong. 264-265 (2019). (Ambassador Yovanovitch stated at her 
     closed-door interview, ``The embassy had received a visa 
     application for a tourist visa from Mr. Shokin, the previous 
     prosecutor general. And he said that he was coming to visit 
     his children, who live in the United States . . . The 
     consular folks . . . got the application, recognized the 
     name, and believed he was ineligible for a visa, based on his 
     . . . corrupt activities . . . so I alerted Washington to 
     this, that this had happened. And the next thing we knew, 
     Mayor Giuliani was calling the White House as well as the 
     Assistant Secretary of Consular Affairs, saying that I was 
     blocking the visa for Mr. Shokin, and that Mr. Shokin was 
     coming to meet him to provide information about corruption at 
     the embassy, including my corruption.'')
       72. Notes from Interview with Mr. Shokin, Rudolph Giuliani 
     (Jan. 23, 2019) (on file with the State Department).
       73. Id.
       74.  Id.
       75. See Stephanie Baker & Irina Reznik, To Win Giuliani's 
     Help, Oligarch's Allies Pursued Biden Dirt, Bloomberg, Oct. 
     18, 2019, https://www.bloomberg.com/news/articles/2019-10-18/
to-win-giuliani-s-help-oligarch-s-allies-pursued-biden-dirt. 
     (In early September 2019, Shokin swore in an affidavit that 
     Vice President Biden pressured the Poroshenko administration 
     to fire him to protect Hunter Biden. He further testified 
     that he was forced out because he was leading ``a wide 
     ranging corruption probe'' of Burisma and that he was 
     ``forced to leave office, under direct and intense 
     pressure from Joe Biden and the U.S. Administration.'' At 
     the beginning of the affidavit, Shokin wrote that he was 
     making the statement at the request of lawyers acting for 
     pro-Putin Ukrainian oligarch Dmitry Firtash, who has a 
     history of acting as a Russian agent and in July 2019, 
     retained the pro-Trump legal team Victoria Toensing and 
     Joe DiGenova, who have been working in coordination with 
     Giuliani to further the corrupt scheme. As part of his 
     legal representation, Mr. Firtash retained Giuliani 
     associate Lev Parnas to be his translator. Furthermore, 
     court filings indicate that Mr. Firtash wired Mr. Parnas's 
     wife a million dollars through an intermediary. It must be 
     further noted that Mr. Giuliani referenced that Ms. 
     Toensing would accompany him to the meeting he requested 
     with then President- elect Zelensky in mid-May. While the 
     letter did not state the purpose of the requested meeting, 
     Mr. Giuliani stated publicly that he intended to tell 
     President Zelensky to pursue the investigation.); See also 
     Letter from Rudolph Giuliani to Volodymyr Zelensky, 
     President-Elect, Ukraine (May 10, 2019) (on file with H. 
     Perm. Select Comm. On Intelligence); Christian Berthelsen, 
     Giuliani Ally Got $1 Million from Ukrainian Oligarch's 
     Lawyer, Bloomberg, Dec. 17, 2019, https://
www.bloomberg.com/news/articles/2019-12-17/firtash-lawyer-
was-source-of-1-million-to-parnas-giuliani-ally.
       76. Andy Heil & Christopher Miller, U.S. Rejects Ukraine 
     Top Prosecutor's `Don't Prosecute' Accusation, Radio Free 
     Europe, Mar. 21, 2019, https://www.rferl.org/a/us-rejects-
top-ukrainian-prosecutors-dont-prosecute-accusation/
29834853.html. (On March 21, a State Department spokesperson 
     responded: ``The allegations by the Ukrainian prosecutor-
     general are not true and intended to tarnish the reputation 
     of Ambassador Yovanovitch.'')
       77. Staff of H. Perm. Select Comm. on Intelligence, 116th 
     Cong., Rep. on The Trump-Ukraine Impeachment Inquiry 44 
     (Comm. Print 2019). (The House Committees who led the 
     impeachment investigation, ``uncovered evidence of close ties 
     and frequent contacts between Mr. Solomon and Mr. Parnas, who 
     was assisting Mr. Giuliani in connection with his 
     representation of the President.''); Adam Entous, The 
     Ukrainian Prosecutor Behind Trump's Impeachment, The New 
     Yorker, Dec. 16, 2019, https://www.newyorker.com/magazine/
2019/12/23/the-ukrainian-prosecutor-behind-trumps-
 impeachment. (In December 2019, Giuliani affirmed 
     coordination with Hill columnist John Solomon: ``I said, 
     `John [Solomon], let's make this as prominent as possible . . 
     . I'll go on TV. You go on TV. You do columns.' '')
       78. See John Solomon, As Russia Collusion Fades, Ukrainian 
     Plot to Help Clinton Emerges, The Hill, Mar. 20, 2019, 
     https://thehill.com/opinion/campaign/435029-as-russia-
collusion-fades-ukrainian-plot-to-help-clinton-emerges; John 
     Solomon, US Embassy Pressed Ukraine to Drop Probe of George 
     Soros Group During the 2016 election, The Hill, Mar. 26, 
     2019, https://thehill.com/opinion/campaign/435906-us-embassy-
pressed-ukraine-to-drop-probe-of-george-soros-group-during-
 2016; John Solomon, Joe Biden''s 2020 Ukrainian Nightmare: A 
     Closed Probe is Revived, The Hill, Apr. 1, 2019, https://
thehill.com/opinion/white-house/436816-joe-bidens-2020-
ukrainian-nightmare-a-closed-probe-is-revived; John Solomon, 
     Ukrainian to U.S. Prosecutors: Why Don't You Want Our 
     Evidence on Democrats?, The Hill, Apr. 7, 2019, https://
thehill.com/opinion/white-house/437719-ukrainian-to-us-
prosecutors-why-dont-you-want-our-evidence-on-democrats; 
     (John Solomon wrote the above columns based on the 
     disinformation that Mr. Giuliani gathered from Mr. Shokin, 
     Mr. Lutsenko and others.)
       79.  See Donald J. Trump (@realDonaldTrump), Twitter (Mar. 
     20, 2019, 10:40 PM), https://twitter.com/realdonaldtrump/
 status/1108559080204001280. (For instance, President Trump 
     promoted a link to Solomon's column from March 20, 2019).
       80.  See Donald Trump, Jr. (@DonaldJTrumpJr), Twitter (Apr. 
     2, 2019,

[[Page S1199]]

     7:52 AM), https://twitter.com/donaldjtrumpjr/status/
 1113046659456528385. (Donald Trump Jr. retweeted Solomon's 
     April 1 column on April 2, 2019.)
       81.  See Rudy Giuliani (@RudyGiuliani), Twitter (Mar. 22, 
     2019, 11:38 AM), https://twitter.com/RudyGiuliani/status/
 1109117167176466432. (On March 22, Mr. Giuliani tweeted an 
     allegation from the article: ``Hillary, Kerry, and Biden 
     people colluding with Ukrainian operatives to make money and 
     affect 2016 election.'')
       82.  Interview by Sean Hannity with Donald Trump, 
     President, United States (Apr. 25, 2019). (Mr. Hannity asked 
     the President if the people of the United States needed to 
     see the evidence Ukraine has with regards to Ukraine 
     colluding with Hillary Clinton's campaign. President Trump 
     responded, ``. . . I think we do.'' He went on to claim that 
     that, ``People have been saying . . . the concept of Ukraine, 
     they have been talking about it actually for a long time . . 
     .'')
       83. Interview by Howard Kurtz with Rudolph Giuliani (Apr. 
     7, 2019). (For instance, on April 7, 2019, Mr. Giuliani 
     stated on Fox News, ``I got information about three or four 
     months ago that a lot of the explanations for how this whole 
     phony investigation started will be in the Ukraine, that 
     there were a group of people in the Ukraine that were working 
     to help Hillary Clinton and were colluding really . . . And 
     then all of a sudden, they revealed the story about Burisma 
     and Biden's son . . . [Vice President Biden] bragged about 
     pressuring Ukraine's president to firing [sic] a top 
     prosecutor who was being criticized on a whole bunch of 
     areas but was conducting an investigation of this gas 
     company which Hunter Biden served as a director . . .'')
       84. Trial Memorandum of the United States House of 
     Representatives, supra note 66, at SMF 4.
       85. Deposition of: Marie ``Masha'' Yovanovitch, Before the 
     H. Perm. Select Comm. On Intelligence, Joint with the Comm. 
     on Oversight and Reform and the Comm. on Foreign Affairs, 
     116th Cong. 131 (2019). (Ambassador Yovanovitch testified 
     that Deputy Secretary of State John Sullivan informed her 
     that ``the President had lost confidence, and I would need to 
     depart my post . . . And he said, you've done nothing wrong. 
     And he said that he had to speak to ambassadors who had been 
     recalled for cause before and this was not that.'')
       86. Adam Entous, The Ukrainian Prosecutor Behind Trump's 
     Impeachment, The New Yorker, Dec. 16, 2019, https://
www.newyorker.com/magazine/2019/12/23/the-ukrainian-
prosecutor-behind-trumps-impeachment.
       87. Text Message from Yuriy Lutsenko, Prosecutor General, 
     Ukraine, to Lev Parnas (Mar. 22, 2019) (on file with H. Perm. 
     Select Comm. on Intelligence).
       88. Interview by Rachel Maddow with Lev Parnas (Jan. 16, 
     2020).
       89. Impeachment Inquiry: Fiona Hill and David Holmes, supra 
     note 57, at 40; Vladimir Putin, President, Russia, Remarks in 
     Joint News Conference with Hungarian Prime Minister Viktor 
     Orban (Feb. 2, 2017). (Russian President Vladimir Putin 
     publicly accused Ukraine of interfering to support Secretary 
     Clinton in 2016. On February 2, 2017 Putin stated: ``As we 
     all know, during the presidential campaign in the United 
     States, the Ukrainian government adopted a-unilateral 
     position in favor of one candidate. More than that, certain 
     oligarchs, certainly with the approval of the political 
     leadership, funded . . . this female candidate.'')
       90. Luke Barr & Alexander Mallin, FBI Director Pushes Back 
     on Debunked Conspiracy Theory About 2016 Election 
     Interference, ABC News, Dec. 9, 2019, https://abcnews.go.com/
Politics/fbi-director-pushes-back-debunked-conspiracy-theory-
2016/story?id=67609244.
       91. Chris Grancescani, President Trump's Former National 
     Security Advisor `Deeply Disturbed' by Ukraine Scandal: 
     `Whole World is Watching', ABC News, Sept. 29, 2019, https://
abcnews.go.com/Politics/president-trumps-national-security-
advisor-deeply-disturbed-ukraine/story?id=65925477. (Mr. Tom 
     Bossert, President Trump's former Homeland Security Adviser 
     stated in a Press interview that the Crowdstrike allegations 
     are, ``completely debunked.'' Mr. Bossert further stated, 
     ``The United States government reached its conclusion on 
     attributing to Russia the DNC hack in 2016 before it even 
     communicated it to the FBI, before it ever knocked on the 
     door at the DNC. So a server inside the DNC was not relevant 
     to our determination to the attribution. It was made up front 
     and beforehand.'')
       92. Allan Smith, `Enough': Trump's Ex-Homeland Security 
     Adviser `Disturbed,' `Frustrated' by Ukraine Allegations, 
     Says President Must Let 2016 Go, NBC News, Sept. 29, 2019, 
     https://www.nbcnews.com/politics/donald-trump/enough-trump-s-
former-homeland-security-adviser-disturbed-ukraine-
allegations-n1060051.
       93. See 166 Cong. Rec. 17, S596-98 (daily ed. Jan. 27, 
     2020) (Statement of Ms. Counsel Bondi); See generally Adam 
     Entous, Will Hunter Biden Jeopardize his Father's Campaign?, 
     New Yorker, Jul. 1, 2019, https://www.newyorker.com/magazine/
2019/07/08/will-hunter-biden-jeopardize-his-fathers-campaign; 
     Michael Kranish & David L. Stern, As Vice President, Biden 
     Said Ukraine Should Increase Gas Production. Then His Son Got 
     a Job at a Ukrainian Gas Company., Washington Post, Jul. 22, 
     2019, https://www.washingtonpost.com/politics/as-vice-
president-biden-said-ukraine-should-increase-gas-production-
then-his-son-got-a-job-with-a-ukrainian-gas-company/2019/07/
21/f599f42c-86dd-11e9-98c1-e945ae5db8fb_story.html; Lucien 
     Bruggeman, Biden Sought to Avoid a Conflict of Interest 
     Before the 2008 Campaign: Court Records, ABC News, Oct. 8, 
     2019, https://abcnews.go.com/Politics/joe-bidens-effort-
dodge-sons-conflict-interest-backfired/story?id=66371399; 
     Glen Kessler, GOP Tries to Connect Dots on Biden and Ukraine, 
     but Comes Up Short, Washington Post, Dec. 4, 2019, https://
www.washingtonpost.com/politics/2019/12/04/gop-tries-connect-
dots-biden-ukraine-comes-up-short/. (The President's Counsel 
     made assertions of the appearance of conflict of interest, 
     but did not produce evidence that Hunter Biden broke the laws 
     of the United States or Ukraine or that Vice President Biden 
     acted corruptly in calling for the removal of then Prosecutor 
     General Victor Shokin. Multiple media outlets have also 
     undertaken investigations into the allegations regarding Vice 
     President Biden and Hunter Biden, and produced no evidence of 
     wrongdoing.)
       94. Interview of: Kurt Volker Before the H. Perm. Select 
     Comm. On Intelligence, Joint with the Comm. on Oversight and 
     Reform and the Comm. on Foreign Affairs, 116th Cong. 36-37 
     (2019).
       95. Alan Cullison, Bidens in Ukraine: An Explainer, Wall 
     Street Journal, Sept. 22, 2019, https://www.wsj.com/articles/
bidens-anticorruption-effort-in-ukraine-overlapped-with-sons-
work-in-country-11569189782. (For example, Ukraine expert 
     Anders Aslund from the Atlantic Council recalls, ``Everyone 
     in the Western community wanted Shokin sacked. The whole G-7, 
     the IMF, the EBRD, everybody was united that Shokin must go, 
     and the spokesman for this effort was Joe Biden.'')
       96. Geoffrey Pyatt, then-U.S. Ambassador to Ukraine, 
     Remarks at the Odesa Financial Forum in Odesa, Ukraine (Sept. 
     24, 2015). (In the fall of 2015, the Obama Administration 
     grew concerned that Shokin, despite promises to increase 
     anti-corruption investigations, had not followed through with 
     enacting forms. For example, on September 24, 2015, then US 
     Ambassador to Ukraine Geoffrey Pyatt stated publicly that 
     Shokin's office ``not only did not support investigations 
     into corruption, but rather undermined prosecutors working on 
     legitimate corruption cases.'' Ambassador Pyatt specifically 
     brought up Burisma as an example of an investigation that had 
     languished under Shokin's tenure as Prosecutor General.)
       97. See Joe Biden, then-Vice President, United States, 
     Remarks to the Ukrainian Rada in Kyiv, Ukraine (Dec. 9, 
     2015). (On December 9, 2015, Vice President Biden stated in 
     front of the Ukrainian Parliament (Rada): ``. . . you cannot 
     name me a single democracy in the world where the cancer of 
     corruption is prevalent. You cannot name me one. They are 
     thoroughly inconsistent. And it's not enough to set up a new 
     anti-corruption bureau and establish a special prosecutor 
     fighting corruption. The Office of the General Prosecutor 
     desperately needs reform. The judiciary should be overhauled. 
     The energy sector needs to be competitive, ruled by market 
     principles--not sweetheart deals.'')
       98. 166 Cong. Rec. 20, S727 (daily ed. Jan. 30, 2020) 
     (statement of Mr. Counsel Philbin).
       99. Entous, supra note 86.
       100. See UNIAN, Ukrainian Prosecutor General Lutsenko 
     Admits U.S. Ambassador Didn't Give Him a Do Not Prosecute 
     List, Apr. 18, 2019, https://www.unian.info/politics/
10520715-ukraine-prosecutor-general-lutsenko-admits-u-s-
ambassador-didn-t-give-him-a-do-not-prosecute-list.html; 
     Daryna Krasnolutska, Kateryna Choursina and Stephanie Baker, 
     Ukraine Prosecutor Says No Evidence of Wrongdoing by Bidens, 
     Bloomberg, May 16, 2019, https://www.bloomberg.com/news/
articles/2019-05-16/ukraine-prosecutor-says-no-evidence-of-
wrongdoing-by-bidens; Michael Birnbaum, David L. Stern and 
     Natalie Gryvnyak, Former Ukraine Prosecutor Says Hunter Biden 
     `Did Not Violate Anything', Washington Post, Sept. 26, 2019, 
     https://www.washingtonpost.com/world/europe/former-ukraine-
prosecutor-says-hunter-biden-did-not-violate-anything/2019/
09/26/48801f66-e068-11e9-be7f-4cc85017c36f_story.html; Andrew 
     E. Kramer, Andrew Higgins and Michael Schwirtz, The Ukrainian 
     Ex-Prosecutor Behind the Impeachment Furor, N.Y. Times, Oct. 
     5, 2019, https://www.nytimes.com/2019/10/05/world/europe/
ukraine-prosecutor-trump.html. (On April 21, 2019, Mr. 
     Lutsenko admitted that the claim he made about U.S. 
     ambassador Yovanovitch was false. In May 2019, Mr. Lutsenko 
     said there was no evidence of wronging by Vice President 
     Biden or his son. In September 2019, Mr. Lutsenko said that 
     Hunter Biden did not violate Ukrainian laws. In October 2019, 
     Mr. Lutsenko told the New York Times, ``I understood very 
     well what would interest them . . . I have 23 years in 
     politics. I knew. I am a political animal.'')
       101. Interview of: Kurt Volker, supra note 94, at 354.
       102. Vogel, supra note, 67.
       103. Id.
       104. Id. (Mr. Giuliani said, ``He basically knows what I am 
     doing, sure, as his lawyer.'')
       105. Letter from Rudolph Giuliani to Arsen Avakov, Minister 
     of Internal Affairs, Ukraine (May 10, 2019) (on file with H. 
     Perm. Select Comm. on Intelligence). (The letter was provided 
     to the House Permanent Select Committee on Intelligence and 
     was made public on January 14, 2020. In the letter, Mr. 
     Giuliani wrote, ``I will be accompanied by my colleague 
     Victoria Toensing, a distinguished American attorney who is 
     very familiar with this matter.''); Jo Becker, Walt

[[Page S1200]]

     Bogdanich, Maggie Haberman, and Ben Protess, Why Giuliani 
     Singled out 2 Ukrainian Oligarchs to Help Look for Dirt, N.Y. 
     Times, Nov. 25, 2019, https://www.nytimes.com/2019/11/25/us/
giuliani-ukraine-oligarchs.html; (As noted prior, Victoria 
     Toensing, along with her Partner Joe DiGenova, were retained 
     by pro-Putin Ukrainian oligarch Dmitry Firtash in July 2019. 
     Facing extradition related to a bribery charge in Chicago in 
     2014, Mr. Firtash was convinced by Mr. Giuliani and his 
     associates to get new legal representation to better 
     ingratiate himself with the leadership at the Department of 
     Justice under the Trump Administration. Mr. Firtash told the 
     New York Times that Mr. Parnas and Mr. Fruman told him: ``We 
     may help you, we are offering you good lawyers in D.C. who 
     might represent you and deliver this message to the U.S. 
     DOJ.'' Mr. Firtash said that his contract to Ms. Toensing and 
     Mr. DiGenova was $300,000 per month. Mr. Parnas's lawyer told 
     the New York Times, ``Per Mr. Giuliani's instructions, Mr. 
     Parnas told Mr. Firtash that Ms. Toensing and Mr. DiGenova 
     were interested in collecting information on the Bidens.'')
       106. See Eliana Johnson, Darren Samuelsohn, Andrew 
     Restuccia, and Daniel Lippman, Trump: Discussing a Biden 
     Probe with Barr Would Be `Appropriate', Politico, May 10, 
     2019, https://www.politico.com/story/2019/05/10/trump-biden-
ukraine-barr-1317601.
       107. Charles Creitz, Giuliani Cancels Ukraine Trip, Says 
     He'd Be ``Walking into a Group of People that are Enemies of 
     the US,'', Fox News, May 11, 2019, https://www.foxnews.com/
politics/giuliani-i-am-not-going-to-ukraine-because-id-be-
walking-into-a-group-of-people-that-are-enemies-of-the-us.
       108. Interview of: Kurt Volker, supra note 94, at 305; 
     Impeachment Inquiry: Ambassador Gordon Sondland Before the H. 
     Perm. Select Comm. on Intelligence, 116th Cong. 8, 21 (2019) 
     (statement of Amb. Sondland).
       109. Interview of: Kurt Volker, supra note 94, at 31. 
     Interview of: Ambassador Gordon Sondland Before the H. Perm. 
     Select Comm. On Intelligence, Joint with the Comm. on 
     Oversight and Reform and the Comm. on Foreign Affairs, 116th 
     Cong. 90 (2019).
       110. Interview of: Ambassador Gordon Sondland Before the H. 
     Perm. Select Comm. On Intelligence, Joint with the Comm. on 
     Oversight and Reform and the Comm. on Foreign Affairs, 116th 
     Cong. 91-92 (2019).
       111. Id. at 71.
       112. Id. at 22.
       113. Deposition of: William B. Taylor Before the H. Perm. 
     Select Comm. On Intelligence, Joint with the Comm. on 
     Oversight and Reform and the Comm. on Foreign Affairs, 116th 
     Cong. 23 (2019) (statement of Amb. Taylor).
       114. Impeachment Inquiry: Ambassador Gordon Sondland Before 
     the H. Perm. Select Comm. on Intelligence, 116th Cong. 27 
     (2019) (statement of Amb. Sondland).
       115. Impeachment Inquiry: Fiona Hill and David Holmes, 
     supra note 57, at 92.
       116. Impeachment Inquiry: Ambassador Gordon Sondland, supra 
     note 114, at 18.
       117. Impeachment Inquiry: Ambassador Kurt Volker and 
     Timothy Morrison Before the H. Perm. Select Comm. on 
     Intelligence, 116th Cong. 18 (2019) (statement of Mr. 
     Morrison).
       118. Id. at 41.
       119. Id. at 94.
       120. Id. at 19.
       121. Impeachment Inquiry: Fiona Hill and David Holmes, 
     supra note 57, at 65-66.
       122. Id. at 66.
       123. Impeachment Inquiry: Ms. Jennifer Williams and 
     Lieutenant Colonel Alexander Vindman Before the H. Perm. 
     Select Comm. on Intelligence, 116th Cong. 19 (2019).
       124. Impeachment Inquiry: Fiona Hill and David Holmes, 
     supra note 57, at 66.
       125. Id. at 67.
       126. See Releases Under FOIA, Just Security (Dec. 20, 2019) 
     (on file at https://assets.documentcloud.org/documents/
6590667/CPI-v-DoD-Dec-20-2019-Release.pdf). (Released emails 
     show that the OMB official Mike Duffey sent Acting 
     Comptroller Elaine McCusker a copy of the Washington Examiner 
     article on June 19, 2019 and said the President ``has asked 
     about this funding release.''); Eric Lipton, Maggie Haberman 
     and Mark Mazzetti, Behind the Ukraine Aid Freeze: 84 Days of 
     Conflict and Confusion, N.Y. Times, Dec. 29, 2019, https://
www.nytimes.com/2019/12/29/us/politics/trump-ukraine-
military-aid.html?wpisrc=nl_powerup&wpmm=1. (The New York 
     Times reported that OMB Officials learned President Trump had 
     ``a problem with the aid'' on June 19, 2019. The report 
     further indicates: ``Typical of the Trump White House, the 
     inquiry was not born of a rigorous policy process. Aides 
     speculated that someone had shown Mr. Trump a news article 
     about the Ukraine assistance and he demanded to know more . . 
     . [Acting OMB Director Russell] Vought and his team took to 
     Google, and came upon a piece in the conservative Washington 
     Examiner saying that the Pentagon would pay for weapons and 
     other military equipment for Ukraine, bringing American 
     security aid to the country to $1.5 billion since 2014.'')
       127. Deposition of: Mark Sandy Before the H. Perm. Select 
     Comm. On Intelligence, Joint with the Comm. on Oversight and 
     Reform and the Comm. on Foreign Affairs, 116th Cong. 39 
     (2019). (OMB official Mark Sandy testified that he received 
     an email on July 12, 2019, forwarded from White House aide 
     Robert Blair, which stated that the President had directed a 
     hold on Ukraine security assistance.); Deposition of: 
     Jennifer Williams Before the H. Perm. Select Comm. On 
     Intelligence, Joint with the Comm. on Oversight and Reform 
     and the Comm. on Foreign Affairs, 116th Cong. 55 (2019). 
     (Vice Presidential aide, Jennifer Williams testified that she 
     learned of a hold on State Department security assistance 
     funds (FMF) on July 3, 2019.)
       128. Impeachment Inquiry: Fiona Hill and David Holmes, 
     supra note 57, at 26. (Multiple witnesses testified to this 
     announcement occurring at the July 18 interagency meeting on 
     Ukraine, including Political Counselor to US Embassy in 
     Ukraine, David Holmes.).
       129. Impeachment Inquiry: Ambassador William B. Taylor and 
     Mr. George Kent Before the H. Perm. Select Comm. on 
     Intelligence, 116th Cong. 35 (2019). (For instance, 
     Ambassador Taylor testified the directive had come from the 
     President to the Chief of Staff to OMB, ``but could not say 
     why.'')
       130. Impeachment Inquiry: Ms. Jennifer Williams and 
     Lieutenant Colonel Alexander Vindman, supra note 123, at 14-
     15. (For instance, Vice Presidential aide Williams testified 
     that from when she first learned about the hold on July 3, 
     2019, until it was lifted on September 11, 2019, she never 
     came to understand why President Trump ordered the hold.); 
     Deposition of: Lieutenant Colonel Alexander S. Vindman Before 
     the H. Perm. Select Comm. on Intelligence, Joint with the 
     Comm. on Oversight and Reform and the Comm. on Foreign 
     Affairs, 116th Cong. 306 (2019). (Similarly, NSC official Lt. 
     Col Vindman testified, none of the ``facts on the ground'' 
     changed before the President lifted the hold.)
       131. 166 Cong. Rec. 19, S688 (daily ed. Jan. 29, 2020) 
     (statement of Mr. Manager Crow).
       132. Deposition of: Mark Sandy Before the H. Perm. Select 
     Comm. on Intelligence, Joint with the Comm. on Oversight and 
     Reform and the Comm. on Foreign Affairs, 116th Cong. 51 
     (2019). (For instance, OMB official Mark Sandy testified that 
     he conferred with other officials such as Acting Deputy 
     Assistant Secretary (Comptroller) Elaine McCusker, ``[t]he 
     nature of the communication was that--how could we institute 
     a temporary hold consistent with the Impoundment Control 
     Act.''); Deposition of: Laura Katherine Cooper Before the H. 
     Perm. Select Comm. on Intelligence, Joint with the Comm. on 
     Oversight and Reform and the Comm. on Foreign Affairs, 116th 
     Cong. 47 (2019). (Deputy Assistant Secretary of Defense Laura 
     Cooper testified that at an interagency meeting soon after 
     learning that the hold was implemented for Ukraine security 
     assistance the ``deputies began to raise concerns about how 
     this [the hold] could be done a legal fashion . . .'')
       133. Corey Welt, Cong. Research Serv., R45008, Ukraine: 
     Background Conflict with Russia and U.S. Policy 30 (2019).
       134. Deposition of: Laura Katherine Cooper Before the H. 
     Perm. Select Comm. on Intelligence, Joint with the Comm. on 
     Oversight and Reform and the Comm. on Foreign Affairs, 116th 
     Cong. 47 (2019). (Deputy Assistant Secretary of Defense 
     Cooper further explained that the conversation, ``reflected a 
     sense that there was not an understanding of how this [the 
     hold] could legally play out,'' and that ``there was not an 
     available [legal] mechanism to simply not spend money'' 
     authorized, appropriated and notified to Congress for 
     Ukraine.)
       135. See Just Security FOIA Releases, supra note 126.
       136. See S. Rep. No. 93-688, at 75 (1987). (The legislative 
     history indicates that the purpose of the ICA was to ensure 
     that ``the practice of reserving funds does not become a 
     vehicle for furthering Administration policies and priorities 
     at the expense of those decided by Congress.'')
       137. U.S. Govt. Accountability Office, Legal Decision 
     Regarding Office of Management and Budget--Withholding of 
     Ukraine Security Assistance, File B-3311564, 1 (Jan. 16, 
     2020).
       138. Memorandum from The White House of President Trump's 
     Telephone Conversation with President Zelenskyy of Ukraine 
     (July 25, 2019).
       139. Donald J. Trump (@realDonaldTrump), Twitter (Jan. 16, 
     2020, 3:39 PM), https://twitter.com/realDonaldTrump/status/
1217909231946477575?s=20 (President Trump has repeatedly 
     claimed that his call with President Zelensky on July 25 was 
     perfect. For example, on January 16, 2020 President Trump 
     tweeted, ``I JUST GOT IMPEACHED FOR MAKING A PERFECT PHONE 
     CALL!'')
       140. Memorandum from The White House of President Trump's 
     Telephone Conversation with President Zelenskyy of Ukraine 3 
     (July 25, 2019).
       141. Id.
       142. Id.
       143. Id. at 4.
       144. Id. at 4, 5. (The President referenced Attorney 
     General Barr several times during his phone call with 
     President Zelensky.)
       145. See Katie Benner, Justice Dept.'s Dismissal of Ukraine 
     Call Raises New Questions About Barr, N.Y. Times, Sept. 25, 
     2019, https://www.nytimes.com/2019/09/25/us/politics/william-
barr-trump-ukraine.html. (As noted in the article, after the 
     memorandum of telephone conversation from July 25th became 
     public, the Justice Department spokesperson stated, ``Mr. 
     Trump has not asked Mr. Barr to contact Ukraine for any 
     reason, Mr. Barr has not communicated with Ukraine on any 
     topic and Mr. Barr has not spoken with Mr. Giuliani about the 
     president's phone call ``or anything related to Ukraine.'')
       146. See Mark Mazzetti & Katie Benner, Trump Pressed 
     Australian Leader to Help Barr Investigate Mueller Inquiry's 
     Origins, N.Y. Times, Sept. 30, 2019, https://www.nytimes.com/
2019/09/30/us/politics/trump-australia-barr-mueller.html. Kim 
     Sengupta, ``It's Like Nothing We Have Come Across Before'': 
     UK Intelligence Officials Shaken By Trump Administration's 
     Requests For

[[Page S1201]]

     Help With Counter-Impeachment Inquiry, The Independent, Nov. 
     1, 2019, https://www.independent.co.uk/news/world/americas/
us-politics/trump-impeachment-inquiry-latest-russia-mueller-
ukraine-zelensky-a9181641.html. Katie Benner & Adam Goldman, 
     Justice Dept. is Said to Open Criminal Inquiry Into Its Own 
     Russia Investigation, N.Y. Times, Oct. 24, 2019, https://
www.nytimes.com/2019/10/24/us/politics/john-durham-
criminal-investigation.html. (Despite denials that the 
     Attorney General had no knowledge of the topics discussed 
     on the call, the Attorney General opened a Department of 
     Justice investigation in April 2019, into the origins of 
     the counterintelligence investigation against the Trump 
     campaign in 2016. Aspects of this investigation involved 
     contacting foreign leaders and asking that their 
     governments investigate aspects of their involvement in 
     that investigation. For example, at the Attorney General's 
     request, the President asked the governments of Australia 
     and the United Kingdom to assist with the investigation 
     including looking at the role that their intelligence and 
     law enforcement agencies played. The New York Times 
     further reported that Attorney General Barr ``is closely 
     managing the investigation even traveling to Italy to seek 
     help from foreign officials there . . . Mr. Barr has also 
     contacted government officials in Britain and Australia 
     about their roles in the early stages of the Russia 
     investigation.).); Interview by Rachel Maddow supra note 
     88. (Additionally, Giuliani associate Lev Parnas stated 
     publicly that Attorney General Barr, ``had to know 
     everything'' and was ``basically on the team.'')
       147. Text Message from Kurt Volker, U.S. Ambassador to NATO 
     and Special Envoy to Ukraine, to Gordon Sondland, U.S. 
     Ambassador to EU, and William B. Taylor, Charge d'affaires at 
     the U.S. Embassy in Kyiv (July 19, 2019) (on file with H. 
     Perm. Select Comm. on Intelligence).
       148. Impeachment Inquiry: Ambassador Gordon Sondland, supra 
     note 114, at 27.
       149. Id. at 94-95.
       150. Id. at 52-55.; Text Message from Gordon Sondland, U.S. 
     Ambassador to EU, to Kurt Volker, U.S. Ambassador to NATO and 
     Special Envoy to Ukraine (July 25, 2019) (on file with H. 
     Perm. Select Comm. on Intelligence).
       151. Text Message from Kurt Volker, U.S. Ambassador to NATO 
     and Special Envoy to Ukraine, to Gordon Sondland, U.S. 
     Ambassador to EU, and William B. Taylor, Charge d'affaires at 
     the U.S. Embassy in Kyiv (July 19, 2019) (on file with H. 
     Perm. Select Comm. on Intelligence); Text Message from Gordon 
     Sondland, U.S. Ambassador to EU, to Kurt Volker, U.S. 
     Ambassador to NATO and Special Envoy to Ukraine (July 25, 
     2019) (on file with H. Perm. Select Comm. on Intelligence). 
     (Text messages between Ambassadors Sondland and Volker affirm 
     that the message that Ambassador Volker passed to Mr. Yermak 
     was passed by Ambassador Volker in coordination with 
     Ambassador Sondland. On July 25, just prior to the phone call 
     between Presidents Trump and Zelensky, Ambassador Sondland 
     texted to Ambassador Volker: ``call me.'' Ambassador Volker 
     replied, ``Had a great lunch w[ith] Yermak and then passed 
     your message to him . . . think everything is in place.'')
       152. Memorandum from The White House of President Trump's 
     Telephone Conversation with President Zelensky of Ukraine 5 
     (July 25, 2019).
       153. Impeachment Inquiry: Ms. Jennifer Williams and 
     Lieutenant Colonel Alexander Vindman, supra note 123, at 31.
       154. 166 Cong. Rec. 19, S647 (daily ed. Jan. 29, 2020) 
     (statement of Mr. Counsel Philbin). (For example, the 
     President's counsel falsely claimed that the House 
     Impeachment Managers didn't try to obtain first hand 
     witnesses while they were making their case in the House. The 
     President's Counsel argued, ``They didn't even subpoena John 
     Bolton. They didn't even try to get his testimony. To insist 
     now that this body will become the investigative body--that 
     this body will have to do all of the discovery--then, this 
     institution will be effectively paralyzed for months on end 
     because it will have to sit as a Court of Impeachment while 
     now discovery will be done. It would be Ambassador Bolton, 
     and if there are going to be witnesses, in order for there to 
     be, as they said, a fair trial, fair adjudication, then, the 
     President would have to have his opportunity to call his 
     witnesses, and there would be depositions. This would drag on 
     for months. Then that will be the new precedent.'' As the 
     House Impeachment Managers argued, these assertions do not 
     actually represent the facts, ``We asked John Bolton to 
     testify in the House, and he refused. We asked his deputy, 
     Dr. Kupperman, to testify, and he refused. Fortunately, we 
     asked their deputy, Dr. Fiona Hill, to testify, and she did. 
     We asked her deputy, Colonel Vindman, to testify, and he did. 
     We did seek the testimony of John Bolton as well as Dr. 
     Kupperman, and they refused. When we subpoenaed Dr. 
     Kupperman, he sued us. He took us to court. When we raised a 
     subpoena with John Bolton's counsel, the same counsel for Dr. 
     Kupperman, the answer was, `. . .  you serve us with a 
     subpoena, and we will sue you, too.'' We knew, based on the 
     McGahn litigation, it would take months, if not years, to 
     force John Bolton to come and testify.'')
       155. Just Security FOIA Releases, supra note 126, at 40.
       156. Impeachment Inquiry: Fiona Hill and David Holmes supra 
     note 57, at 29.
       157. Id. at 29-30.
       158. Mick Mulvaney, Acting Chief of Staff, The White House, 
     at Press Briefing by Acting Chief of Staff Mick Mulvaney 
     (Oct. 17, 2019).
       159. Id.
       160. Id.
       161. Caitlin Emma & Connor O'Brien, Trump Holds Up Ukraine 
     Military Aid Meant to Confront Russia, Politico, Aug. 28, 
     2019, https://www.politico.com/story/2019/08/28/trump-
ukraine-military-aid-russia-1689531.
       162. Impeachment Inquiry: Ms. Laura Cooper and Mr. David 
     Hale Before the H. Perm. Select Comm. on Intelligence, 116th 
     Cong. 14 (2019) (statement of Ms. Cooper).
       163. Deposition of: Catherine Croft Before the H. Perm. 
     Select Comm. on Intelligence, Joint with the Comm. on 
     Oversight and Reform and the Comm. on Foreign Affairs, 116th 
     Cong. 86-87, 101 (2019). (Croft, a career foreign service 
     officer, further testified that she was surprised at the 
     effectiveness of their ``diplomatic tradecraft,'' noting that 
     they ``found out very early on'' that the United States was 
     withholding critical security assistance to Ukraine.)
       164. Andrew E. Kramer & Kenneth P. Vogel, Ukraine Knew of 
     Aid Freeze by Early August, Undermining Trump Defense, N.Y. 
     Times, Oct. 23, 2019, https://www.nytimes.com/2019/10/23/us/
politics/ukraine-aid-freeze-impeachment.html.
       165. Id.
       166. Deposition of: Lieutenant Colonel Alexander S. Vindman 
     Before the H. Perm. Select Comm. on Intelligence, Joint with 
     the Comm. on Oversight and Reform and the Comm. on Foreign 
     Affairs, 116th Cong. 314 (2019).
       167. Eric Lipton, Maggie Haberman and Mark Mazzetti, Behind 
     the Ukraine Aid Freeze: 84 Days of Conflict and Confusion, 
     N.Y. Times, Dec. 29, 2019, https://www.nytimes.com/2019/12/
29/us/politics/trump-ukraine-military-
aid.html?wpisrc=nl_powerup&wpmm=1.
       168. Deposition of: Tim Morrison Before the H. Perm. Select 
     Comm. on Intelligence, Joint with the Comm. on Oversight and 
     Reform and the Comm. on Foreign Affairs, 116th Cong. 268 
     (2019).
       169. Maggie Haberman & Michael S. Schmidt, Trump Tied 
     Ukraine Aid to Inquiries He Sought, Bolton Book Says, N.Y. 
     Times, Jan. 26, 2020, https://www.nytimes.com/2020/01/26/us/
politics/trump-bolton-book-ukraine.html.
       170. Text Messages from Gordon Sondland, U.S. Ambassador to 
     EU, to Kurt Volker, U.S. Ambassador to NATO and Special Envoy 
     to Ukraine (Aug. 9, 2019) (on file with H. Perm. Select Comm. 
     on Intelligence). (The effort began with a text message from 
     Ambassador Sondland to Ambassador Volker stating, ``I think 
     POTUS really wants the deliverable.); See Interview of: Kurt 
     Volker, supra note 94, at 71-72.
       171. Interview of: Kurt Volker, supra note 94, at 71.
       172. Interview of: Kurt Volker, supra note 94, at 113.
       173. Text Messages from Kurt Volker, U.S. Ambassador to 
     NATO and Special Envoy to Ukraine, to Gordon Sondland, U.S. 
     Ambassador to EU, and Andriy Yermak, Aide to Ukrainian 
     President Zelensky (Aug. 13, 2019) (on file with H. Perm. 
     Select Comm. on Intelligence); Interview of: Kurt Volker, 
     supra note 94, at 71, 73.
       174. Interview of: Kurt Volker, supra note 94, at 188-189; 
     See generally Text Message from Gordon Sondland, U.S. 
     Ambassador to EU, to Kurt Volker, U.S. Ambassador to NATO and 
     Special Envoy to Ukraine (Aug. 9, 2019) (on file with H. 
     Perm. Select Comm. on Intelligence); Text Messages from Kurt 
     Volker, U.S. Ambassador to NATO and Special Envoy to Ukraine, 
     to Andriy Yermak, Aide to Ukrainian President Zelensky (Aug. 
     10-12, 2019) (on file with H. Perm. Select Comm. on 
     Intelligence); (Ambassador Volker testified in his closed 
     interview regarding the process on the draft statement: 
     ``Rudy discussed, Rudy Giuliani and Gordon [Sondland] and I, 
     what it is they are looking for. And I shared that with 
     Andriy [Yermak]. And then Andriy came back to me and said: We 
     don't think it's a good idea. So that was obviously before 
     Andriy came back and said: We don't want to do that.'' 
     Ambassador Volker further elaborated: ``So the Ukrainians 
     were saying that just coming out of the blue and making a 
     statement didn't make any sense to them. If they're invited 
     to come to the White House on a specific date for President 
     Zelensky's visit, then it would make sense for President 
     Zelensky to come out and say something, and it would be a 
     much broader statement about a reboot of U.S.-Ukraine 
     relations, not just on we're investigating these things 
     [2016/Burisma].'')
       175. Deposition of: William B. Taylor, supra note 113, at 
     190.
       176. Id. at 36.
       177. Id.
       178. Id. at 39-40.
       179. Deposition of: David A. Holmes Before the H. Perm. 
     Select Comm. on Intelligence, Joint with the Comm. on 
     Oversight and Reform and the Comm. on Foreign Affairs, 116th 
     Cong. 28 (2019).
       180. Deposition of: William B. Taylor, supra note 113, at 
     39. (For instance, Ambassador Taylor testified that he spoke 
     to Sondland by phone and that Sondland, ``said he had talked 
     to President Trump . . . Trump was adamant that President 
     Zelensky himself had to clear things up and do it in 
     public.''); Impeachment Inquiry: Ambassador Gordon Sondland, 
     supra note 114, at 109. (Ambassador Sondland did not dispute 
     Taylor's characterization of these accounts.)
       181. Impeachment Inquiry: Ambassador Gordon Sondland, supra 
     note 114, at 19.

[[Page S1202]]

  

       182. Impeachment Inquiry: Ambassador William B. Taylor and 
     Mr. George Kent, supra note 129, at 44.
       183. Id. at 44, 46.
       184. Letter from Whistleblower to Adam Schiff, Chairman, H. 
     Perm. Select Comm. on Intelligence, and Richard Burr, 
     Chairman, S. Select Comm. on Intelligence (August 12, 2019).
       185. Id.
       186. Michael S. Schmidt, Julian E. Barnes, and Maggie 
     Haberman, Trump Knew of Whistleblower Complaint When He 
     Released Aid to Ukraine, N.Y. Times, Nov. 26, 2019, https://
www.nytimes.com/2019/11/26/us/politics/trump-whistle-blower-
complaint-ukraine.html.
       187. Letter from Michael K. Atkinson, Inspector General, 
     the Intelligence Community, to Adam Schiff, Chairman, House 
     Perm. Select Comm. on Intelligence, and Devin Nunes, Ranking 
     Member, House Perm. Select Comm. on Intelligence (Sep. 9, 
     2019).
       188. Press Release, H. Perm. Select Comm. on Intelligence, 
     Three House Committees Launch Wide-Ranging Investigation into 
     Trump-Giuliani Ukraine Scheme (Sept. 9, 2019). (On September 
     9, 2019, the House Foreign Affairs Committee, in conjunction 
     with the House Permanent Select Committee on Intelligence, 
     and House Committee on Oversight and Government Reform 
     launched ``a wide-ranging investigation into reported efforts 
     by President Trump, the President's personal lawyer Rudy 
     Giuliani, and possibly others to pressure the government of 
     Ukraine to assist the President's reelection campaign.'')
       189. See Just Security Releases, supra note 126, at 1.
       190. Kenneth P. Vogel & Benjamin Novak, Giuliani, Facing 
     Scrutiny, Travels to Europe to Interview Ukrainians, N.Y 
     Times, Dec. 4, 2019, https://www.nytimes.com/2019/12/04/us/
politics/giuliani-europe-impeachment.html. 
     (For instance, Mr. Giuliani met with Mr. Shokin in Ukraine as 
     part of a trip to generate additional information on the 
     Bidens and 2016 election collusion. According to the New York 
     Times, Giuliani's trip was intended ``to help prepare more 
     episodes of a documentary series for a conservative 
     television outlet promoting his pro-Trump, anti-impeachment 
     narrative.'')
       191. Opinion Memorandum of United States Senator John F. 
     Reed, supra note 38, at 3.
       192. Id. at 9
       193. Deposition of: Lieutenant Colonel Alexander S. 
     Vindman, supra note 166, at 18.
       194. Impeachment Inquiry: Ms. Jennifer Williams and 
     Lieutenant Colonel Alexander Vindman, supra note 123, at 15.
       195. Deposition of: Jennifer Williams Before the H. Perm. 
     Select Comm. on Intelligence, Joint with the Comm. on 
     Oversight and Reform and the Comm. on Foreign Affairs, 116th 
     Cong. 149 (2019).
       196. Deposition of: Lieutenant Colonel Alexander S. 
     Vindman, supra note 166, at 97; Deposition of: Tim Morrison, 
     supra note 168, at 16.
       197. Letter from Whistleblower, supra note 184, at 3.
       198. Letter from John C. Rood, Under Secretary of Defense, 
     U.S. Department of Defense, to Eliot L. Engel, Chairman, H. 
     Comm. on Foreign Affairs (May 23, 2019).
       199. Deposition of: Laura Katherine Cooper, supra note 134, 
     at 49. (Ms. Cooper testified that the officials present at 
     the July 26 meeting did not consider corruption to be a 
     legitimate reason for the hold because they unanimously 
     agreed that Ukraine was making sufficient progress on anti-
     corruption reforms, as certified by the Defense Department on 
     May 23, 2019.)
       200. Deposition of: William B. Taylor, supra note 113, at 
     28.
       201. Memorandum from The White House of President Trump's 
     Telephone Conversation with President-Elect Zelenskyy of 
     Ukraine (Apr. 21, 2019); Memorandum from The White House of 
     President Trump's Telephone Conversation with President 
     Zelenskyy of Ukraine (July 25, 2019).
       202. Impeachment Inquiry: Ms. Jennifer Williams and 
     Lieutenant Colonel Alexander Vindman, supra note 123, at 24-
     25. (Lt. Col. Vindman testified that recommended talking 
     points for the April 21 call included rooting out 
     corruption.); See Memorandum from The White House of 
     President Trump's Telephone Conversation with President-Elect 
     Zelenskyy of Ukraine (Apr. 21, 2019). (The memorandum of 
     telephone call from April 21 shows the issue was not 
     raised.); Impeachment Inquiry: Ms. Jennifer Williams and 
     Lieutenant Colonel Alexander Vindman, supra note 123, at 31. 
     (Lt. Col Vindman further testified that he prepared the 
     President's talking points for his July 25th phone call with 
     President Zelensky and the topics for that call included, 
     ``cooperation on supporting a reform agenda, anticorruption 
     efforts, and helping President Zelensky implement his plans 
     to end Russia's war against Ukraine.''); Memorandum from The 
     White House of President Trump's Telephone Conversation with 
     President Zelenskyy of Ukraine (July 25, 2019). (The 
     memorandum of telephone call from July 25, 2019, indicates 
     that the President did not raise these issues.); Impeachment 
     Inquiry: Kurt Volker and Timothy Morrison, supra note 117, at 
     34. (NSC official Morrison testified that references to 
     Crowdstrike, the DNC server, and 2016 election, and to Vice 
     President Biden and his son, were not included in the 
     President's talking points as written by the NSC.)
       203. Deposition of: Tim Morrison, supra note 168, at 41.
       204. See further discussion of this topic on pages 22-23.
       205. See further discussion of this topic on page 23.
       206. Impeachment Inquiry: Ambassador Marie ``Masha'' 
     Yovanovitch Before the H. Perm. Select Comm. on Intelligence, 
     116th Cong. 115 (2019). (For instance, during her testimony, 
     Ambassador Yovanovitch was asked whether it was appropriate 
     to investigate corruption including a potentially corrupt 
     company such as Burisma. Ambassador Yovanovitch responded: 
     ``I think it's appropriate if it's part of our national 
     strategy. What I would say is that we have a process for 
     doing that. It's called the Mutual Legal Assistance Treaty. 
     We have one with Ukraine, and generally it goes from our 
     Department of Justice to the Ministry of Justice in the 
     country of interest.''); Interview of: George Kent, supra 
     note 63, at 158. (Deputy Assistant Secretary Kent, a career 
     diplomat and recognized expert on anti-corruption measures 
     stated in his deposition: ``. . . if there's any criminal 
     nexus for any activity involving the U.S., that U.S. law 
     enforcement by all means should pursue that case, and if 
     there's an international connection, that we have mechanisms 
     to ask either through Department of Justice MLAT in writing 
     or through the presence of individuals representing the FBI, 
     our legal attaches, to engage foreign governments directly 
     based on our concerns that there had been some criminal act 
     violating U.S. law.'')
       207. Memorandum from The White House of President Trump's 
     Telephone Conversation with President Zelensky of Ukraine 
     (July 25, 2019).
       208. Caitlin Oprysko, Trump pressed Ukraine's president to 
     work with Barr for dirt on Biden, Politico, Sep. 25, 2019, 
     https://www.politico.com/story/2019/09/25/white-house-
releases-transcript-of-trumps-call-with-ukraines-president-
 1510767.
       209. Interview of: Kurt Volker, supra note 94, at 191. 
     (Ambassador Volker testified that ``Andriy [Yermak, President 
     Zelensky's close aide] asked whether any request had ever 
     been made by the U.S. to investigate election interference in 
     2016.'' Ambassador Volker confirmed in his testimony that 
     Yermak's inquiry equated to ``a request from the Department 
     of Justice.'')
       210. Interview of: Kurt Volker, supra note 94, at 199. 
     (Ambassador Volker testified that to his knowledge there was 
     not an official United States Department of Justice 
     request.).
       211. European Union External Action, EU-Ukraine Relations--
     Factsheet (Jan. 28, 2020), https://eeas.europa.eu/
headquarters/headquarters-homepage_en/4081/%20EU-
Ukraine%20relations%20-%20factsheet; Iain King, Not 
     Contributing Enough? A Summary of European Military and 
     Development Assistance to Ukraine Since 2014 (Ctr. for 
     Strategic & Int'l Studies, Sept. 26, 2019), https://
www.csis.org/analysis/not-contributing-enough-summary-
european-military-and-development-assistance-ukraine-2014.
       212. See further discussion of this topic at page 21.
       213. Id.
       214. Deposition of: Mark Sandy Before the H. Perm. Select 
     Comm. on Intelligence, Joint with the Comm. on Oversight and 
     Reform and the Comm. on Foreign Affairs, 116th Cong. 143 
     (2019). (Mr. Sandy testified that OMB Official Mike Duffey, 
     ``simply said, we need to let the hold take place . . . and 
     then revisit this issue with the President.'')
       215. Id. at 179. (Mr. Sandy responded ``that's correct'' to 
     the question: ``at some point in early September, Mr. Blair 
     stopped by your office and told you that the reason for the 
     hold was out of concern that the United States gives more aid 
     to Ukraine than other countries? Or, rather, that other 
     countries should give more as well.'')
       216. Id. at 180.
       217. U.S. Govt. Accountability Office, supra note 137.
       218. Kate Brannen, Exclusive: Unredacted Ukraine Documents 
     Reveal Extent of Pentagon's Level Concerns, Just Security, 
     Jan. 2, 2020, https://www.justsecurity.org/67863/exclusive-
unredacted-ukraine-documents-reveal-extent-of-pentagons-
legal-concerns/.
       219. Deposition of: Laura Katherine Cooper, supra note 134, 
     at 79-81.
       220. Id. at 80-81.
       221. Office of the Director of National Intelligence, 
     National Intelligence Council, supra note 63.
       222. Staff of the S. Select Comm. on Intelligence, 115th 
     Cong., Rep. on The Intelligence Community Assessment: 
     Assessing Russian Activities and Intentions in Recent U.S. 
     Elections 2 (Comm. Print 2018). (On July 3, 2018, the Senate 
     Select Committee on Intelligence announced that they had 
     concluded an in-depth review of the Intelligence Committee's 
     January 6, 2017, assessment and concluded that the assessment 
     ``is a sound intelligence product.'')
       223. 1 Mueller, supra note 60, at 1. (Special Counsel 
     Mueller concluded ``the Russian government interfered . . . 
     in sweeping and systematic fashion.'')
       224. Impeachment Inquiry: Fiona Hill and David Holmes, 
     supra note 57 (statement of Dr. Fiona Hill).
       225. Impeachment Inquiry: Ambassador Kurt Volker and 
     Timothy Morrison, supra note 117, at 11.
       226. Id.
       227. Impeachment Inquiry: Ambassador William B. Taylor and 
     Mr. George Kent, supra note 129, at 169-170.
       228. Id. at 57.
       229. Id. at 54.
       230. Id. at 45.

[[Page S1203]]

  

       231. Interview of: Kurt Volker, supra note 94, at 15.
       232. Interview of: George Kent, supra note 63, at 114.
       233. 165 Cong. Rec. 205, H12193 (daily ed. Dec. 18, 2019) 
     (statement of Rep. Adam Schiff).
       234. H.R. Res. 755, 116th Cong. Art. II (2019).
       235. Id.
       236. See generally The Federalist Paper No. 47 (James 
     Madison) (Jacob E. Cooke ed., 1961); The Federalist Paper No. 
     48 (James Madison) (Jacob E. Cooke ed., 1961); The Federalist 
     Paper No. 49 (James Madison) (Jacob E. Cooke ed., 1961); The 
     Federalist Paper No. 50 (James Madison) (Jacob E. Cooke ed., 
     1961); The Federalist Paper No. 51 (James Madison) (Jacob E. 
     Cooke ed., 1961). (Federalist Papers No. 47 through No. 51 
     explain how the Executive, Legislative, and Judicial Branches 
     were to be wholly separated from each other, yet accountable 
     to each other through a system of checks and balances.); See 
     also Nixon v. Administrator of General Services, 433 U.S. 
     425, 426 (1977). (In Nixon v. GSA, the Supreme Court 
     articulated the test for a violation of the separation of 
     powers as occurring when the action of one branch ``prevents 
     [another branch] from accomplishing its constitutionally 
     assigned functions.'')
       237. U.S. Const. art. II, Sec. 3.
       238. McGrain v. Daugherty, 273 U.S. 135, 174-175 (1927). 
     (``A legislative body cannot legislate wisely or effectively 
     in the absence of information respecting the conditions which 
     the legislation is intended to affect or change; and where 
     the legislative body does not itself possess the requisite 
     information--which not infrequently is true--recourse must be 
     had to others who do possess it. Experience has taught that 
     mere requests for such information often are unavailing, and 
     also that information which is volunteered is not always 
     accurate or complete; so some means of compulsion are 
     essential to obtain what is needed. All this was true before 
     and when the Constitution was framed and adopted. In that 
     period the power of inquiry--with enforcing process--was 
     regarded and employed as a necessary and appropriate 
     attribute of the power to legislate--indeed, was treated as 
     inhering in it. Thus there is ample warrant for thinking, as 
     we do, that the constitutional provisions which commit the 
     legislative function to the two houses are intended to 
     include this attribute to the end that the function may be 
     effectively exercised.'')
       239. Kilbourn v. Thompson, 103 U.S. 168, 190 (1880).
       240. U.S. Const. art. I, Sec. 2, cl. 5.
       241. Frank O. Bowman III, High Crimes & Misdemeanors: A 
     History of Impeachment for the Age of Trump 199-200 (2019). 
     (``The subpoena power in impeachment cases arises directly 
     from an explicit constitutional directive that the House 
     conduct an adjudicative proceeding akin to a grand jury, the 
     success of which is necessarily dependent on the availability 
     of relevant evidence. Without the power to compel compliance 
     with subpoenas and the concomitant right to impeach a 
     president for refusal to comply, the impeachment power would 
     be nullified.'')
       242. Cong. Globe, 27th Cong., 2d Sess. 580 (1842) 
     (statement of Rep. John Quincy Adams).
       243. H.R. Rep. 93-1305, at 4 (1974).
       244. H.R. Res. 660, 116th Cong. (2019).
       245. Press Release, H. Perm. Select Comm. on Intelligence, 
     Three House Committees Launch Wide-Ranging Investigation into 
     Trump-Giuliani Ukraine Scheme (Sept. 9, 2019).
       246. Letter from Eliot L. Engel, Chairman, H. Comm. on 
     Foreign Affairs, et al., to Pat Cipollone, Counsel to the 
     President, The White House, (Sep. 9, 2019).
       247. Nancy Pelosi, Speaker, U.S. House of Representatives, 
     Impeachment Inquiry Announcement (Sep. 24, 2019).
       248. Letter from Elijah E. Cummings, Chairman, H. Comm. on 
     Oversight and Reform, et al., to John Michael Mulvaney, 
     Acting Chief of Staff to the President, The White House (Oct. 
     4, 2019).
       249. Letter from Eliot L. Engel, Chairman, H. Comm. on 
     Foreign Affairs, et al., to Michael R. Pompeo, Secretary, 
     U.S. Department of State (Sept. 27, 2019); Letter from Eliot 
     L. Engel, Chairman, H. Comm. on Foreign Affairs, et al., to 
     T. Ulrich Brechbuhl, Counselor, U.S. Department of State 
     (Oct. 25, 2019).
       250. Letter from Adam B. Schiff, Chairman, H. Perm. Select 
     Comm. on Intelligence, et al., to Mark T. Esper, Secretary, 
     U.S. Department of Defense (Oct. 7, 2019).
       251. Letter from Adam B. Schiff, Chairman, H. Perm. Select 
     Comm. on Intelligence, et al., to Russell T. Vought, Acting 
     Director, U.S. Office of Management and Budget (Oct. 7, 
     2019); Letter from Eliot L. Engel, Chairman, H. Comm. on 
     Foreign Affairs, et al., to Russell T. Vought, Acting 
     Director, U.S. Office of Management and Budget (Oct. 25, 
     2019); Letter from Eliot L. Engel, Chairman, H. Comm. on 
     Foreign Affairs, et al., to Michael Duffey, Associate 
     Director for National Security Programs, U.S. Office of 
     Management and Budget (Oct. 25, 2019).
       252. Letter from Eliot L. Engel, Chairman, H. Comm. on 
     Foreign Affairs, et al., to James Richard ``Rick'' Perry, 
     Secretary, U.S. Department of Energy (Oct. 10, 2019).
       253. Letter from Adam B. Schiff, Chairman, H. Perm. Select 
     Comm. on Intelligence, et al., to Rudolph ``Rudy'' W. L. 
     Giuliani, Giuliani Partners LLC (Sept. 30, 2019).
       254. H.R. Rep. No. 116-266, at 3 (2019).
       255. Letter from Adam B. Schiff, Chairman, H. Perm. Select 
     Comm. on Intelligence, et al., to Paul W. Butler, Esq., 
     Counsel to Michael Ellis, Senior Associate Counsel to the 
     President, The White House, and Deputy Legal Advisor, 
     National Security Council (Nov. 3, 2019); Letter from Adam B. 
     Schiff, Chairman, H. Perm. Select Comm. on Intelligence, et 
     al., to Karen Williams, Esq., Counsel to Preston Wells 
     Griffith, Senior Director for International Energy and 
     Environment, National Security Council (Nov. 4, 2019).
       256. Letter from Adam B. Schiff, Chairman, H. Perm. Select 
     Comm. on Intelligence, et al., to Whitney C. Ellerman, 
     Counsel to Robert B. Blair, Assistant to the President and 
     Senior Advisor to the Chief of Staff, The White House (Nov. 
     3, 2019); H. Perm. Select Comm. on Intelligence, Subpoena to 
     John Michael Mulvaney, Acting Chief of Staff, The White House 
     (Nov. 7, 2019).
       257. Letter from Eliot L. Engel, Chairman, H. Comm. on 
     Foreign Affairs, et al., to Brian McCormack, Associate 
     Director for Natural Resources, Energy and Science, U.S. 
     Office of Management and Budget (Nov. 1, 2019).
       258. Letter from Adam B. Schiff, Chairman, H. Perm. Select 
     Comm. on Intelligence, et al., to Justin Shur, Esq., Counsel 
     to Jennifer Williams, Special Advisor for Europe and Russia, 
     Office of the Vice President (Nov. 4, 2019); H. Perm. Select 
     Comm. on Intelligence, Subpoena to Jennifer Williams, Special 
     Advisor for Europe and Russia, Office of the Vice President 
     (Nov. 19, 2019).
       259. Letter from Pat A. Cipollone, Counsel to the 
     President, The White House, to Nancy Pelosi, Speaker, U.S. 
     House of Representatives, et al. 7 (Oct. 8, 2019).
       260. Jordyn Phelps, `We're Fighting All the Subpoenas': 
     Trump on Battle with House Democrats, ABC News, Apr. 24, 
     2019, https://abcnews.go.com/Politics/fighting-subpoenas-
trump-battle-democrats/story?id=62600497.
       261. Donald J. Trump (@realDonaldTrump), Twitter (Oct. 3. 
     2019, 9:04 PM), https://twitter.com/realDonaldTrump/status/
1179925259417468928?s=20.
       262. Staff of H. Perm. Select Comm. on Intelligence, 116th 
     Cong., Rep. on The Trump-Ukraine Impeachment Inquiry 220-224 
     (Comm. Print 2019).
       263. Id. at 219-220.
       264. Id. at 226-227.
       265. Id. at 224-226.
       266. Memorandum from The White House of President Trump's 
     Telephone Conversation with President-Elect Zelenskyy of 
     Ukraine (Apr. 21, 2019).
       267. Memorandum from The White House of President Trump's 
     Telephone Conversation with President Zelenskyy of Ukraine 
     (July 25, 2019).
       268. Donald Trump, President, United States of America, 
     Remarks by President Trump and President Niinist of the 
     Republic of Finland in Joint Press Conference (Oct., 2, 
     2019). (On October 2, 2019, President Trump stated, ``All 
     because they didn't know that I had a transcript done by 
     very, very talented people--word for word, comma for comma. 
     Done by people that do it for a living. We had an exact 
     transcript.'')
       269. Deposition of: Lieutenant Colonel Alexander S. 
     Vindman, supra note 166, at 53-55.
       270. H.R. Rep. No. 116-346, at 134-135 (2019). (The 
     following Trump Administration officials defied congressional 
     subpoenas directing them to testify in the impeachment 
     inquiry: John Michael Mulvaney, Acting Chief of Staff to the 
     President, The White House; Robert B. Blair, Assistant to the 
     President and Senior Advisor to the Chief of Staff, The White 
     House; John A. Eisenberg, Deputy Counsel to the President for 
     National Security Affairs, the White House and Legal Advisor, 
     National Security Council; Michael Ellis, Senior Associate 
     Counsel to the President, The White House, and Deputy Legal 
     Advisor, National Security Council; Preston Wells Griffith, 
     Senior Director for International Energy and Environment, 
     National Security Council; Russell T. Vought, Acting 
     Director, Office of Management and Budget; Michael Duffey, 
     Associate Director for National Security Programs, Office of 
     Management and Budget; Brian McCormack, Associate Director 
     for Natural Resources, Energy and Science, Office of 
     Management and Budget, and former Chief of Staff to 
     Secretary, U.S. Department of Energy; and T. Ulrich 
     Brechbuhl, Counselor, Department of State).
       271. Staff of H. Perm. Select Comm. on Intelligence, 116th 
     Cong., Rep. on The Trump-Ukraine Impeachment Inquiry 222-224 
     (Comm. Print 2019).
       272. Id. at 225.
       273. Id. at 226-227.
       274. Id. at 25, 108-109, 134-135, 137-138.
       275. Donald J. Trump (@realDonaldTrump), Twitter (Oct. 8, 
     2019, 9:23 AM), https://twitter.com/realDonaldTrump/status/
 1181560772255719424. (Ten days before Ambassador Sondland's 
     deposition before the House Permanent Select Committee on 
     Intelligence, the President issued two tweets, indicating 
     that Ambassador Sondland should not cooperate because he had 
     done nothing wrong: ``I would love to send Ambassador 
     Sondland, a really good man and great American, to testify, 
     but unfortunately he would be testifying before a totally 
     compromised kangaroo court, where Republican's rights have 
     been taken away, and true facts are not allowed out for the 
     public. . . . to see. Importantly, Ambassador Sondland's 
     tweet, which few report, stated, I believe you are incorrect 
     about President Trump's intentions. The President has been 
     crystal clear: no quid pro quo's of any kind.' That says it 
     ALL!'')
       276. Donald J. Trump (@realDonaldTrump), Twitter (Oct. 23, 
     2019, 2:58 PM), https://twitter.com/realdonaldtrump/status/

[[Page S1204]]

     1187080923961012228?lang=en. (The day after Ambassador 
     Taylor's October 22, 2019, deposition before the House 
     Permanent Select Committee on Intelligence, President Trump 
     suggested that Ambassador Taylor's testimony was politically 
     motivated: ``Never Trumper Republican John Bellinger, 
     represents Never Trumper Diplomat Bill Taylor (who I don't 
     know), in testimony before Congress! Do Nothing Democrats 
     allow Republicans Zero Representation, Zero due process, and 
     Zero Transparency. . . .'')
       277. Donald J. Trump (@realDonaldTrump), Twitter (Nov. 15, 
     2019, 10:01 AM), https://twitter.com/realDonaldTrump/status/
 1195356211937468417. (The morning of her hearing on November 
     15, 2019, President Trump issued a series of disparaging, 
     accusatory tweets saying: ``Everywhere Marie Yovanovitch went 
     turned bad. She started off in Somalia, how did that go? Then 
     fast forward to Ukraine, where the new Ukrainian President 
     spoke unfavorably about her in my second phone call with him. 
     It is a U.S. President's absolute right to appoint 
     ambassadors. . . . They call it ``serving at the pleasure of 
     the President.'' The U.S. now has a very strong and powerful 
     foreign policy, much different than proceeding 
     administrations. It is called, quite simply, America First! 
     With all of that, however, I have done FAR more for Ukraine 
     than O.'')
       278. The White House (@WhiteHouse), Twitter (Nov. 19, 2019, 
     12:49 PM), https://twitter.com/whitehouse/status/
1196848072929796096?lang=en. (During the hearing of Lt. Col 
     Vindman on November 19, 2019, the official White House 
     twitter account tweeted the following message, suggesting 
     that Lt. Col. Vindman was not a reliable witness: ``Tim 
     Morrison, Alexander Vindman's former boss, testified in his 
     deposition that he had concerns about Vindman's judgment.'')
       279. Donald J. Trump (@realDonaldTrump), Twitter (Nov. 17, 
     2019, 2:57 PM), https://twitter.com/realdonaldtrump/status/
1196155347117002752?lang=en. (On Sunday, November 17, 2019, 
     two days before Ms. Williams scheduled hearing before the 
     House Permanent Select Committee on Intelligence on November 
     19, the President attempted to influence her testimony by 
     tweeting: ``Tell Jennifer Williams, whoever that is, to read 
     BOTH transcripts of the presidential calls, & see the just 
     released ststement (sic) from Ukraine. Then she should meet 
     with the other Never Trumpers, who I don't know & mostly 
     never even heard of, & work out a better presidential 
     attack!'')
       280. Trial Memorandum of President Donald J. Trump, supra 
     note 25, at 37.
       281. Staff of H. Perm. Select Comm. on Intelligence, 116th 
     Cong., Rep. on The Trump-Ukraine Impeachment Inquiry 235-236, 
     239-241, 243-250 (Comm. Print 2019). (From the Department of 
     State, that included Marie Yovanovitch, Gordon Sondland, 
     George Kent, William Taylor, and T. Ulrich Brechbuhl. From 
     the Department of Defense, that included Laura Cooper. In 
     addition, the White House directed Charles Kupperman not to 
     cooperate.).
       282. See Watkins v. United States, 354 U.S. 178, 187 
     (1957). (Even in exercising its ordinary oversight powers, 
     the Supreme Court held in Watkins v. United States that 
     ``[t]he power of the Congress to conduct investigations is 
     inherent in the legislative process. That power is broad. It 
     encompasses inquiries concerning the administration of 
     existing laws as well as proposed or possibly needed 
     statutes. It includes surveys of defects in our social, 
     economic or political system for the purpose of enabling the 
     Congress to remedy them. It comprehends probes into 
     departments of the Federal Government to expose corruption, 
     inefficiency or waste.'')
       283. McGrain v. Daugherty, 273 U.S. 135, 175 (1927). (The 
     Supreme Court in McGrain v. Daugherty elaborated on Congress' 
     occasional need to compel information, writing that ``A 
     legislative body cannot legislate wisely or effectively in 
     the absence of information respecting the conditions which 
     the legislation is intended to affect or change; and where 
     the legislative body does not itself possess the requisite 
     information--which not infrequently is true--recourse must be 
     had to others who do possess it. Experience has taught that 
     mere requests for such information often are unavailing, and 
     also that information which is volunteered is not always 
     accurate or complete; so some means of compulsion are 
     essential to obtain what is needed.''); See also Watkins v. 
     United States, 354 U.S. 178, 187-95 (1957); See also Eastland 
     v. U.S. Servicemen's Fund, 421 U.S. 491, 504-05 (1975).
       284. H.R. Doc. No. 115-77, at 586-588 (2019).
       285. Watkins v. United States, 354 U.S. 178, 179 (1957). 
     (The Supreme Court held in Watkins that ``In authorizing an 
     investigation by a committee, it is essential that the Senate 
     or House should spell out the committee's jurisdiction and 
     purpose with sufficient particularity to insure that 
     compulsory process is used only in furtherance of a 
     legislative purpose.'' As such, the Court also held that ``a 
     congressional investigation into individual affairs is 
     invalid if unrelated to any legislative purpose, because it 
     is beyond the powers conferred upon Congress by the 
     Constitution.'')
       286. Letter from Adam B. Schiff, Chairman, H. Perm. Select 
     Comm. on Intelligence, et al., to Paul W. Butler, Esq., 
     Counsel to Michael Ellis, Senior Associate Counsel to the 
     President, The White House, and Deputy Legal Advisor, 
     National Security Council (Nov. 3, 2019); Letter from Adam B. 
     Schiff, Chairman, H. Perm. Select Comm. on Intelligence, et 
     al., to Karen Williams, Esq., Counsel to Preston Wells 
     Griffith, Senior Director for International Energy and 
     Environment, National Security Council (Nov. 4, 2019); Letter 
     from Adam B. Schiff, Chairman, H. Perm. Select Comm. on 
     Intelligence, et al., to Whitney C. Ellerman, Counsel to 
     Robert B. Blair, Assistant to the President and Senior 
     Advisor to the Chief of Staff, The White House (Nov. 3, 
     2019); H. Perm. Select Comm. on Intelligence, Subpoena to 
     John Michael Mulvaney, Acting Chief of Staff, The White House 
     (Nov. 7, 2019); Letter from Eliot L. Engel to Brian 
     McCormack, supra note 257; Letter from Eliot L. Engel, 
     Chairman, H. Comm. on Foreign Affairs, et al., to John A. 
     Eisenberg, Deputy Counsel to the President for National 
     Security Affairs, the White House and Legal Advisor, National 
     Security Council (Nov. 1, 2019); H.R. Rep. No. 116-346, at 
     134-135 (2019).
       287. Letter from Pat A. Cipollone to Nancy Pelosi, supra 
     note 259, at 2.
       288. Donald Trump, President, United States of America, 
     Remarks by President Trump in Press Conference, Davos, 
     Switzerland (Jan. 22, 2020).
       289. United States v. Nixon, 418 U.S. 683, 706 (1974).
       290. Id. at 706, 713. (Dicta from United States v. Nixon 
     further suggests that a claim of confidentiality of 
     presidential communications would be stronger if a need to 
     protect military, diplomatic, or sensitive national security 
     secrets is claimed.)
       291. Senate Select Comm. on Presidential Campaign 
     Activities v. Nixon, 498 F.2d 725, 730 (D.C. Cir. 1974).
       292. Id. at 731.
       293. Letter from Pat A. Cipollone to Nancy Pelosi, supra 
     note 259, at 2.
       294. See The Federalist No. 66, at 446 (Alexander Hamilton) 
     (Jacob E. Cooke ed., 1961). (The Framers created impeachment 
     as an ``essential check in the hands of [Congress] upon the 
     encroachments of the executive'' and to ensure that the 
     President could not be above the law.)
       295. Comm. on the Judiciary, U.S. House of Representatives 
     v. Miers, 558 F. Supp. 2d 53, 102-103 (2008). (``Congress's 
     power of inquiry is as broad as its power to legislate and 
     lies at the very heart of Congress's constitutional role. 
     Indeed, the former is necessary to the proper exercise of the 
     latter: according to the Supreme Court, the ability to compel 
     testimony is ``necessary to the effective functioning of 
     courts and legislatures . . . Thus, Congress's use of (and 
     need for vindication of) its subpoena power in this case is 
     no less legitimate or important than was the grand jury's in 
     United States v. Nixon. Both involve core functions of a co-
     equal branch of the federal government, and for the reasons 
     identified in Nixon, the President may only be entitled to a 
     presumptive, rather than an absolute, privilege here. And it 
     is certainly the case that if the President is entitled only 
     to a presumptive privilege, his close advisors cannot hold 
     the superior card of absolute immunity.'')
       296. Comm. on Judiciary, U.S. House of Representatives v. 
     McGahn, __F. Supp. 3d __, No. 19-cv-2379 (KBJ), 2019 WL 
     6312011 (D.D.C. Nov. 25, 2019) (Ketanji Brown Jackson, J.) 
     (Rejecting the Department of Justice's argument that 
     presidential advisors like Don McGahn enjoy absolute immunity 
     from compelled congressional testimony.)
       297. William French Smith, Assertion of Executive Privilege 
     in Response to a Congressional Subpoena in Opinions of the 
     Legal Counsel, Department of Justice 31 (October 13, 1981) 
     (``The accommodation required is not simply an exchange of 
     concessions or a test of political strength. It is an 
     obligation of each branch to make a principled effort to 
     acknowledge, and if possible to meet, the legitimate needs of 
     the other branch.'')
       298. United States v. AT&T Co., 567 F.2d 121, 127 (D.C. 
     Cir. 1977).
       299. See e.g. Neal Devins, Congressional-Executive 
     Information Access Disputes: A Modest Proposal--Do Nothing, 
     48 Admin. L. Rev. 109, 116 (1996).
       300. See id. at 122, 125. (``Types of intermediate options 
     [when there are executive privilege claims] include the 
     executive providing the requested information in timed 
     stages, the executive releasing expurgated or redacted 
     versions of the information, the executive preparing 
     summaries of the information, Congress promising to maintain 
     confidentiality regarding the information, and Congress 
     inspecting the material while it remains in executive 
     custody.'')
       301. William P. Barr, Congressional Requests for 
     Confidential Executive Branch Information in Opinions of the 
     Legal Counsel, Department of Justice 153, 162 (June 19, 
     1989).
       302. See John E. Bies, Primer on Executive Privilege and 
     the Executive Branch Approach to Congressional Oversight, 
     Lawfare, June 16, 2017, https://www.lawfareblog.com/primer-
executive-privilege-and-executive-branch-approach-
congressional-oversight. (``If negotiations reach a 
     standstill and these officials conclude that the 
     circumstances warrant invocation of executive privilege, they 
     prepare materials for the White House counsel to present the 
     issue to the president for his or her decision. 
     Traditionally, this presentation involves a memorandum from 
     the head of the agency that received the congressional 
     request explaining the information sought by Congress, why 
     the information is privileged, and the efforts that the 
     agency has made to date to accommodate the congressional 
     request; a memorandum from the attorney general evaluating 
     the legal basis for a privilege assertion over the requested 
     information, including whether the qualified privilege might 
     be overcome in the balancing of

[[Page S1205]]

     interests and needs; and the White House counsel's 
     recommendation to the president. Pending the president's 
     decision, the agency is directed to ask Congress to hold the 
     request in abeyance, and to explain that this is simply to 
     protect the president's ability to assert the privilege and 
     does not itself constitute a claim of privilege.'')
       303. 166 Cong. Rec. 16, S575 (daily ed. Jan. 25, 2020) 
     (Statement of Mr. Counsel Philbin).
       304. Trial Memorandum of President Donald J. Trump, supra 
     note 25, at 75.
       305. Alison Durkee, Lev Parnas: Trump ``Knew Exactly What 
     Was Going On'' in Ukraine, Vanity Fair, Jan. 6, 2020, https:/
     /www.vanityfair.com/news/2020/01/lev-parnas-maddow-ukraine-
 trump; Olivia Rubin & Soo Rin Kim, Giuliani's Associate Lev 
     Parnas Speaks Again: `It Was All About 2020.', ABC News, Jan. 
     17, 2020, https://abcnews.go.com/Politics/giulianis-
associate-lev-parnas-speaks-2020/story?id=68340258.
       306. Maggie Haberman & Michael S. Schmidt, Trump Told 
     Bolton to Help His Ukraine Pressure Campaign, Book Says, N.Y. 
     Times, Jan. 31, 2020, https://www.nytimes.com/2020/01/31/us/
politics/trump-bolton-ukraine.html.
       307. Adam Edelman, Lev Parnas, the Indicted Associate of 
     Giuliani, Tries to Attend Trump Impeachment Trial, NBC News, 
     Jan. 29, 2020, https://www.nbcnews.com/politics/trump-
impeachment-inquiry/lev-parnas-indicted-associate-giuliani-
tries-attend-trump-impeachment-trial-n1125601; Nicholas 
     Fandos & Michael S. Schmidt, Bolton is Willing to Testify in 
     Trump Impeachment Trial, Raising Pressure for Witnesses, N.Y. 
     Times, Jan. 6, 2020, https://www.nytimes.com/2020/01/06/us/
politics/bolton-testify-impeachment-trial.html.
       308. Fred Barbash, Trump Denies Telling Bolton that Ukraine 
     Aid was Tied to Investigations, as Explosive Book Claiming 
     Otherwise Leaks, Washington Post, Jan. 27, 2020, https://
www.washingtonpost.com/nation/2020/01/27/trump-bolton-
 ukraine/; Justin Wise, Trump Again Denies Knowing Lev Parnas: 
     `He's a Con Man,', The Hill, Jan. 22, 2020, https://
thehill.com/homenews/administration/479317-trump-again-
denies-knowing-lev-parnas-hes-a-conman.
       309. Caitlin Oprysko, Trump Suggests He'd Invoke Executive 
     Privilege to Block Bolton Testimony, Politico, Jan. 10, 2020, 
     https://www.politico.com/news/2020/01/10/trump-john-bolton-
testimony-097349.
       310. Trial Memorandum of President Donald J. Trump, supra 
     note 25, at 40.
       311. Bowman, supra note 241, at 164-165.
       312. H.R. Rep. No. 93-1305, at 6 (1974).
       313. U.S. Const. art. I, Sec. 3, cl. 6.
       314. Todd Garvey, Cong. Research Serv., R45983, 
     Congressional Access to Information in an Impeachment 
     Investigation 21 (2019).
       315. Comm. on Judiciary, U.S. House of Representatives v. 
     McGahn, __ F. Supp. 3d __, No. 19-cv-2379 (KBJ) 57-58, 2019 
     WL 6312011 (D.D.C. Nov. 25, 2019) (Ketanji Brown Jackson, J.)
       316. Id. at 59.
       317. 2 The Records of the Federal Convention of 1787, supra 
     note 12, at 65.
       318. Id. at 64.
       319. Id. 
       320. Letter from Pat A. Cipollone to Nancy Pelosi, supra 
     note 259, at 4.
       321. Hebert v. State of La., 272 U.S. 312, 316-317 (1926).
       322. H.R. Rep. No. 105-795, at 25-26 (1998).
       323. H.R. Rep. No. 116-346, at 17-19 (2019).
       324. Staff of H. Comm on the Judiciary, 93rd Cong., 
     Impeachment Inquiry Procedures 1-2 (Comm. Print 1974).
       325. H.R. Rep. No. 116-266, at 9-11 (2019).
       326. Letter from Jerrold Nadler, Chairman, H. Comm. on the 
     Judiciary, to Donald Trump, President, United States of 
     America (Nov. 29, 2019).
       327. Letter from Pat A. Cipollone, Counsel to the 
     President, The White House, to Jerrold Nadler, Chairman, H. 
     Comm. on the Judiciary (Dec. 6, 2019).
       328. Trial Memorandum of the United States House of 
     Representatives, supra note 66, at SMF 58.
       329. 166 Cong. Rec. 12, S381-S382 (daily ed. Jan. 21, 2020) 
     (statement of Mr. Manager Schiff).
       330. Claudia Grisales & Kelsey Snell, After Pressure, 
     McConnell Makes Last-Minute Changes to Impeachment Trial 
     Procedure, NPR, Jan. 20, 2020, https://www.npr.org/2020/01/
20/798007597/read-mcconnell-lays-out-plan-for-senate-
impeachment-trial-procedure; See S. Res. 483, 116th Cong. 
     (2019).
       331. Claudia Grisales & Kelsey Snell, After Pressure, 
     McConnell Makes Last-Minute Changes to Impeachment Trial 
     Procedure, NPR, Jan. 20, 2020, https://www.npr.org/2020/01/
20/798007597/read-mcconnell-lays-out-plan-for-senate-
impeachment-trial-procedure.
       332. S. Res. 483, 116th Cong. (2019).
       333. Id.
       334. See S. Amdt. 1284 to S. Res. 483, 116th Cong. (2020); 
     S. Amdt. 1285 to S. Res. 483, 116th Cong. (2020); S. Amdt. 
     1286 to S. Res. 483, 116th Cong. (2020); S. Amdt. 1287 to S. 
     Res. 483, 116th Cong. (2020); S. Amdt. 1288 to S. Res. 483, 
     116th Cong. (2020); S. Amdt. 1289 to S. Res. 483, 116th Cong. 
     (2020); S. Amdt. 1290 to S. Res. 483, 116th Cong. (2020); S. 
     Amdt. 1291 to S. Res. 483, 116th Cong. (2020); S. Amdt. 1292 
     to S. Res. 483, 116th Cong. (2020); S. Amdt. 1293 to S. Res. 
     483, 116th Cong. (2020); S. Amdt. 1294 to S. Res. 483, 116th 
     Cong. (2020). (These amendments included: subpoenas for 
     relevant documents held by the White House related to 
     meetings and calls between President Trump and the President 
     of Ukraine; subpoenas compelling the Secretary of State, 
     Acting Director of the Office of Management and Budget, and 
     Secretary of Defense to produce documents and records related 
     to the July 25 phone call between President Trump and the 
     Ukrainian President and records related to the freezing of 
     assistance to Ukraine; and subpoenas for the testimony of 
     Acting Chief of Staff Mick Mulvaney and Ambassador John 
     Bolton, both of whom have significant firsthand knowledge of 
     the events that are the subject of this impeachment trial. 
     Other amendments sought to ensure that there would be votes 
     on motions to subpoena witnesses, provide additional time to 
     respond to motions, and require the Chief Justice to rule on 
     motions to subpoena witnesses and documents.)
       335. 166 Cong. Rec. 12, S385-S431 (Jan. 21, 2020).
       336. 166 Cong. Rec. 21, S766-S769 (daily ed. Jan. 31, 
     2020).
       337. Id.
       338. Nicholas Fandos, McConnell Says He Will Proceed on 
     Impeachment Trial Without Witness Deal, N.Y. Times, Jan. 7, 
     2020, https://www.nytimes.com/2020/01/07/us/politics/
impeachment-trial-witnesses.html.
       339. H.R. Rep. 116-346, at 20, 24 (2019).
       340. Opinion Memorandum of United States Senator John F. 
     Reed, supra note 38, at 4.
       341. Id.
       342. 166 Cong. Rec. 19, S650-S651 (daily ed. Jan. 29, 2020) 
     (statement of Mr. Counsel Dershowitz).
       343. 166 Cong. Rec. 17, S614 (daily ed. Jan. 27, 2020) 
     (statement of Mr. Counsel Dershowitz). (In response to the 
     report in the New York Times on January 26, 2020, that the 
     manuscript of a book by former National Security Adviser John 
     Bolton contends that President Trump directly tied the freeze 
     on security assistance for Ukraine to Ukraine agreeing to 
     conduct investigations into the 2016 campaign and Biden/
     Burisma theories, defense counsel Alan Dershowitz argued that 
     ``if a President-any President-were to have done what `The 
     Times' reported about the content of the Bolton manuscript, 
     that would not constitute an impeachable offense. Let me 
     repeat it. Nothing in the Bolton revelations, even if true, 
     would rise to the level of an abuse of power or an 
     impeachable offense . . . You cannot turn conduct that is not 
     impeachable into impeachable conduct simply by using words 
     like `quid pro quo' '' and `personal benefit.' '')
       344. Ashley Parker & David E. Sanger, Donald Trump Calls on 
     Russia to Find Hillary Clinton's Missing Emails, N.Y. Times, 
     July 27, 2016, https://www.nytimes.com/2016/07/28/us/
politics/donald-trump-russia-clinton-emails.html.
       345. 1 Mueller, supra note 60, at 5. (The Special Counsel's 
     investigation concluded that, ``[t]he presidential campaign 
     of Donald J. Trump . . . showed interest in WikiLeaks's 
     releases of documents and welcomed their potential to damage 
     candidate Clinton.'')
       346. Interview by George Stephanopoulos with Donald Trump, 
     President, United States of America, in Washington, D.C. 
     (June 16, 2019).
       347. Peter Baker & Eileen Sullivan, Trump Publicly Urges 
     China to Investigate the Bidens, N.Y. Times, Oct. 3, 2019, 
     https://www.nytimes.com/2019/10/03/us/politics/trump-china-
bidens.html.
       348. See discussion at page 21.
       349. Donald J. Trump (@realDonaldTrump), Twitter (Jan. 16, 
     2020. 3:39 PM), https://twitter.com/realDonaldTrump/status/
1217909231946477575?s=20. (President Trump has repeatedly 
     claimed that his call with President Zelensky on July 25 was 
     perfect. For example, on January 16, 2020 President Trump 
     tweeted, ``I JUST GOT IMPEACHED FOR MAKING A PERFECT PHONE 
     CALL!'')
       350. The Federalist No. 68, at 459 (Alexander Hamiltoni) 
     (Jacob E. Cooke ed., 1961).
       351. Letter from John Adams to Thomas Jefferson (Dec. 6, 
     1787).
       352. Ellen L Weintraub (@EllenLWeintraub), Twitter (June 
     13, 2019, 7:11 PM), https://twitter.com/EllenLWeintraub/
 status/1139309394968096768/photo/1. (In response to President 
     Trump's statement to George Stephanopoulos that he would 
     consider taking information from a foreign government on one 
     of his political opponents, Ellen Weintraub, Chair, Federal 
     Election Commissioner, wrote, ``Let me make something 100% 
     clear to the American public and anyone running for public 
     office: It is illegal for any person to solicit, accept, or 
     receive anything of value from a foreign national in 
     connection with a U.S. election. This is not a novel concept. 
     Electoral intervention from foreign governments has been 
     considered unacceptable since the beginning of our nation. 
     Our Founding Fathers sounded the alarm about `foreign 
     interference, intrigue and influence.' They knew that when 
     foreign governments seek to influence American politics, it 
     is always to advance their own interests, not America's.'')

  Mr. CASEY. Mr. President, I ask unanimous consent that the text of a 
more comprehensive version of my statement regarding the impeachment 
trial of President Donald John Trump be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

      Statement on the Impeachment of President Donald John Trump


                            I. Introduction

       Throughout this impeachment trial, I have often thought of 
     an inscription above the front door of the Finance Building 
     in Harrisburg, Pennsylvania from the 1930s: ``All public 
     service is a trust, given in faith and accepted in honor.''

[[Page S1206]]

       This inscription helped me frame my own understanding of 
     the evidence offered during this trial because I believe that 
     President Trump and every public official in America must 
     earn that trust every day. That sacred trust is given to us 
     ``in faith'' by virtue of our election. The question for the 
     President--and every official--is: Will we accept that 
     ``trust'' by our honorable conduct? The trust set forth in 
     the inscription is an echo of Alexander Hamilton's words in 
     Federalist No. 65, where he articulated the standard for 
     impeachment as ``offenses which proceed from the misconduct 
     of public men, or, in other words, from the abuse or 
     violation of some public trust.'' \1\
       Much time has been devoted to why and how we got here. Let 
     us make no mistake about this--we are here because of the 
     President's conduct. He solicited the interference of a 
     foreign government in our next election and demanded that 
     same government announce an investigation of his political 
     opponent, as well as an investigation into a debunked 
     conspiracy theory about the last presidential election.
       President Trump has exhibited an unmistakable pattern of 
     behavior that indicates a predisposition toward autocratic 
     leadership and a willingness to embrace an agenda based on 
     foreign propaganda, directly undermining the national 
     interests of the United States.\2\ The world watched 
     President Trump stand next to Russian President Vladimir 
     Putin in Helsinki, Finland in July 2018.\3\ When President 
     Trump was asked whether he believed President Putin or his 
     intelligence agencies--all of which definitively concluded 
     that Russia interfered in the 2016 election \4\--President 
     Trump responded: ``My people came to me . . . [and] 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.'' \5\
       After this press conference and despite his attempts to 
     retract his comments, President Trump faced widespread and 
     bipartisan condemnation. Republican members of Congress 
     called his performance ``troubling,'' ``a step backwards,'' 
     ``shameful, ``untenable,'' ``bizarre and flat-out wrong.'' 
     \6\ However, only Senator John McCain offered a forceful 
     rebuke of President Trump:
       Today's press conference in Helsinki was one of the most 
     disgraceful performances by an American president in memory. 
     The damage inflicted by President Trump's naivete, egotism, 
     false equivalence, and sympathy for autocrats is difficult to 
     calculate.
       No prior president has ever abased himself more abjectly 
     before a tyrant. Not only did President Trump fail to speak 
     the truth about an adversary; but speaking for America to the 
     world, our president failed to defend all that makes us who 
     we are--a republic of free people dedicated to the cause of 
     liberty at home and abroad. American presidents must be the 
     champions of that cause if it is to succeed. Americans are 
     waiting and hoping for President Trump to embrace that sacred 
     responsibility. One can only hope they are not waiting 
     totally in vain.\7\
       Over a year and a half later, the President's pattern of 
     conduct has made it clear. Just as Senator McCain feared, 
     Americans have waited in vain for President Trump to 
     embrace--or even understand--his duties as a public servant. 
     This President has not and never will be faithful to the 
     ``sacred responsibility'' that he holds as President of the 
     United States, nor will he ever truly honor the trust that 
     the people placed in him.
       Besides Senator McCain, Republican Senators failed to fully 
     confront the President when he chose the word of a former KGB 
     agent over the United States Intelligence Community. For this 
     reason, it is unsurprising that our Nation has found itself 
     imperiled yet again by another example of President Trump's 
     shameful and dishonorable conduct. In response to Republican 
     Senators who have expressed concern about the President's 
     ``inappropriate'' conduct but have repeatedly refused to hold 
     him accountable, I must ask: What will it take? What action 
     will finally be so objectionable, so inappropriate to break 
     from this President? He will not learn. He will not change. 
     When confronted with a choice between the national interests 
     and his personal political interests, President Trump will 
     always choose the latter. The Senate's failure to hold him 
     accountable in this impeachment trial would be a stain on 
     American history.
       After a thorough, careful review of all of the available 
     evidence in this impeachment trial, I have determined that 
     House Managers have not only met, but exceeded, their burden 
     of proof in this case. President Trump violated his duty as a 
     public servant by corruptly abusing his power to solicit 
     foreign interference in the 2020 election and by repeatedly 
     obstructing Congress's constitutionally-based investigation 
     into his conduct. President Trump's clearly established 
     pattern of conduct indicates he will continue to be a 
     ``threat to national security and the Constitution if allowed 
     to remain in office.'' \8\ For these reasons, I will vote 
     ``guilty'' on both Article I and Article II.


                         II. Procedural History

       Before discussing the facts of this case, it is important 
     to address the Senate trial itself. To ensure a full and fair 
     trial for all parties, Senate Democrats repeatedly called for 
     relevant witnesses and relevant documents to be subpoenaed 
     during this trial in the Senate.\9\ The testimonial and 
     documentary evidence would supplement an already substantial 
     record presented by the House Managers and ensure that this 
     was a fair trial for all parties involved. Senate Republicans 
     refused to allow any witnesses and documents.\10\
       Seventy-five percent of Americans supported calling 
     witnesses during his trial.\11\ Unfortunately, President 
     Trump has been calling the shots and dictating the Republican 
     approach to this trial.\12\ This is the third Presidential 
     impeachment trial in our country's history, and it is the 
     only one to be completed without calling a single 
     witness.\13\ In fact, every completed impeachment trial in 
     history has included new witnesses that were not even 
     originally interviewed in the House of Representatives.\14\
       By blocking relevant witnesses and relevant documents, 
     Senate Republicans have denied the American people the full 
     and fair trial they deserve. It is clear that this proceeding 
     was rigged from the start to protect President Trump rather 
     than to hear all of the facts.


                          III. Material Facts

     Special Counsel Mueller & Russian Interference in the 2016 
         Presidential Election
       To fully understand the facts established by the House 
     Managers in this case, it is necessary to first understand 
     the context in which President Trump engaged in this 
     behavior. In May 2017, Special Counsel Robert Mueller was 
     appointed to investigate `` `the Russian government's efforts 
     to interfere in the 2016 presidential election,' including 
     any links or coordination between the Russian government and 
     individuals associated with the Trump Campaign.'' \15\ 
     Special Counsel Mueller released his comprehensive report in 
     April 2019, which established in meticulous detail that 
     Russian President Vladimir Putin personally directed an 
     ongoing and systemic Russian attack in the 2016 presidential 
     election in the United States.\16\
       Special Counsel Mueller's conclusions were also confirmed 
     by the United States Intelligence Community \17\ and the 
     bipartisan Senate Select Committee on Intelligence.\18\ The 
     Mueller investigation did not find evidence that President 
     Trump's 2016 campaign conspired or coordinated with the 
     Russian government, but Special Counsel Mueller did confirm 
     that ``the Russian government perceived it would benefit from 
     a Trump presidency and worked to secure that outcome, and 
     that the [Trump] Campaign expected it would benefit 
     electorally from information stolen and released through 
     Russian efforts.'' \19\ For example, then-candidate Trump 
     declared during a public rally in July 2016: ``Russia, if 
     you're listening, I hope you're able to find the 30,000 
     emails that are missing'' from then-candidate Hillary 
     Clinton's email server.\20\ Russian hackers targeted 
     Clinton's personal server within hours of Trump's 
     request.\21\ After the Mueller Report, in June 2019, 
     President Trump was asked whether he would accept opposition 
     research from a foreign government against his political 
     opponent. President Trump responded ``I think I'd take it.'' 
     \22\
       Rather than embrace the Special Counsel's investigation and 
     condemn Russian interference in the election, President Trump 
     reportedly tried to undermine the investigation by calling it 
     a ``witch hunt'' \23\ and a ``hoax.'' \24\ In fact, in Volume 
     II of his report, Special Counsel Mueller detailed the 
     President's numerous efforts to obstruct the Special 
     Counsel's investigation into Russian interference and his 
     attempts to remove the Special Counsel in order to end the 
     investigation. The Special Counsel identified ten separate 
     episodes of potential obstruction of justice including, but 
     not limited to: (1) President Trump firing former FBI 
     Director James Comey; \25\ (2) President Trump attempting to 
     fire Special Counsel Mueller; \26\ and (3) President Trump 
     requesting his White House Counsel lie and publically deny 
     that President Trump tried to fire Special Counsel 
     Mueller.\27\
       Neither Special Counsel Mueller nor Attorney General 
     William Barr charged President Trump with a crime for the 
     actions detailed in Special Counsel Mueller's report,\28\ in 
     part because of a controversial Office of Legal Counsel 
     opinion indicating that a sitting President cannot be 
     indicted for a crime.\29\ However, over a thousand former 
     federal prosecutors, who served under Republican and 
     Democratic administrations, issued a statement shortly after 
     the release of the Special Counsel's report that stated, in 
     part, as follows:
       Each of us believes that the conduct of President Trump 
     described in Special Counsel Robert Mueller's report would, 
     in the case of any other person not covered by the Office of 
     Legal Counsel policy against indicting a sitting President, 
     result in multiple felony charges for obstruction of 
     justice.\30\
       After releasing his report in April, Special Counsel 
     Mueller testified in front of the House Judiciary Committee 
     and the House Intelligence Committee on July 24, 2019.\31\ 
     During his testimony, Special Counsel Mueller confirmed that 
     Russia was still engaging in ongoing efforts to attack future 
     elections and warned that the United States must ``use the 
     full resources that we have to address this'' 
     interference.\32\ On July 25, one day after Special Counsel 
     Mueller testified, President Trump spoke on the phone with 
     the newly-elected President of Ukraine, President Volodymyr 
     Zelensky.\33\ Unknown at the time, this phone call would soon 
     set off the comprehensive investigation leading to President 
     Trump's impeachment and the current trial in the Senate.
     Ukraine
       On April 21, 2019, several months before Special Counsel 
     Mueller's public testimony,

[[Page S1207]]

     Volodymyr Zelensky was elected President of Ukraine and later 
     that day, President Trump called him to congratulate him on 
     his victory.\34\ On that call, President Trump extended a 
     future invitation to the White House and he also promised 
     that he would send a ``very, very high level'' representative 
     from the United States to attend President Zelensky's 
     inauguration.\35\
       Two days after President Trump's call with President 
     Zelensky, on April 23, media reports confirmed that former 
     Vice President Joe Biden would enter the 2020 presidential 
     race.\36\ Around this time, the President's personal 
     attorney, Rudy Giuliani, was leading a smear campaign to 
     tarnish and remove then-U.S. ambassador to Ukraine, Marie 
     Yovanovitch, a respected diplomat known for advancing the 
     United States' anti-corruption efforts abroad.\37\ The smear 
     campaign was also advanced by two ``corrupt former 
     prosecutors''--Mr. Lutsenko and Mr. Shokin--in Ukraine.\38\ 
     It was widely confirmed that the corrupt Ukraine prosecutors 
     were seeking ``revenge against'' Ambassador Yovanovitch for 
     exposing their misconduct.\39\ On the day after the media 
     reported that former Vice President Biden was entering the 
     presidential race, President Trump recalled Ambassador 
     Yovanovitch from her position in Ukraine.\40\
       Mr. Lutsenko and Mr. Giuliani both promoted two conspiracy 
     theories that have been pursued by President Trump.\41\ One 
     of the conspiracy theories alleged that Ukraine hacked a 
     Democratic National Committee (DNC) server in 2016 in order 
     to frame Russia for election interference and help the 
     Clinton Campaign.\42\ The other theory alleged that former 
     Vice President Biden coerced the Ukrainian government into 
     firing Mr. Shokin to ``prevent an investigation into Burisma 
     Holdings, a Ukrainian energy company for which Vice President 
     Biden's son, Hunter, served as a board member.'' \43\ Both 
     theories have been criticized and debunked by officials in 
     the Trump Administration.\44\
       On May 3, 2019, shortly after President Zelensky's 
     election, President Trump and President Putin spoke by 
     telephone and discussed, in part, the so-called ``Russian 
     Hoax,'' referring to Special Counsel Mueller's 
     investigation.\45\ During that conversation, President Putin 
     reportedly spoke negatively about Ukraine, suggesting that it 
     was corrupt and that President Zelensky was ``in the thrall 
     of oligarchs.'' \46\ A Washington Post article, published on 
     December 19, 2019, reported that a senior White House 
     official even indicated that President Trump suggested that 
     ``he knew Ukraine was the real culprit [of 2016 election 
     interference] because `Putin told me.' '' \47\
       On May 9, the New York Times reported that the President's 
     personal attorney, Mr. Giuliani, would be traveling to 
     Ukraine to pressure the government to open investigations 
     into the conspiracy theories about Burisma and the 2016 
     election.\48\ Mr. Giuliani specifically acknowledged ``[t]his 
     isn't foreign policy'' but that the investigations ``will be 
     very, very helpful to my client.'' \49\
       Around May 13, President Trump ordered Vice President Pence 
     not to attend President Zelensky's inauguration and sent a 
     lower-ranking delegation, despite his promise to President 
     Zelensky to send a ``very, very high level'' 
     representative.\50\ This delegation included Secretary of 
     Energy Rick Perry, Ambassador to the European Union Gordon 
     Sondland, Special Representative for Ukraine Negotiations 
     Ambassador Kurt Volker and NSC Director for Ukraine 
     Lieutenant Colonel Alexander Vindman.\51\
       On May 23, despite positive reports from the delegation 
     regarding President Zelensky's effort to combat corruption, 
     President Trump said he ``didn't believe'' the delegation 
     because that was not what Mr. Giuliani had told him.\52\ The 
     President also reiterated that Ukraine ``tried to take me 
     down'' during the 2016 election, confirming that he still 
     believed the conspiracy theory that Ukraine, not Russia, was 
     actually responsible for 2016 election interference.\53\ 
     President Trump directed Ambassador Sondland, Secretary Perry 
     and Ambassador Volker to ``talk to Rudy'' and coordinate 
     engagement with the Ukraine government.\54\
       Despite President Trump's misplaced concerns about 
     Ukrainian conspiracy theories, in May 2019, the Department of 
     Defense (DOD) and the State Department certified that Ukraine 
     had ``taken substantial actions'' to decrease corruption.\55\ 
     This was important because it was a necessary requirement in 
     order for DOD to release $250 million in Ukrainian military 
     assistance that had been appropriated and authorized by 
     Congress.\56\ Congress had also appropriated and authorized 
     another $141 million to be administered by the State 
     Department for security assistance to Ukraine.\57\
       However, by July 12, the President had ordered a block on 
     all military and security assistance for Ukraine against 
     overwhelming recommendations from across the Executive Branch 
     and strong bipartisan support for the aid.\58\ The hold 
     continued throughout August in violation of the Impoundment 
     Control Act of 1974.\59\ The President did not initially 
     give a reason for the hold, although by September, the 
     President claimed that the hold was because he was 
     concerned about corruption in Ukraine and burden-sharing 
     for Ukrainian assistance among European allies.\60\
       Throughout this time period, it also became clear that 
     President Trump was withholding the White House meeting that 
     he promised President Zelensky during their April 21 phone 
     call.\61\ Ambassador Taylor, Ambassador Yovanovitch's 
     replacement in Ukraine, pushed for the White House meeting, 
     but he learned that the meeting was conditioned explicitly on 
     Ukraine publically announcing investigations into the 2016 
     election and Burisma.\62\ Ambassador Sondland was unequivocal 
     in his description during his testimony: ``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.'' \63\
       After a July 10 meeting, Dr. Fiona Hill, former Senior 
     Director of European and Russian Affairs at the National 
     Security Council, informed then-National Security Advisor 
     John Bolton that Ambassador Sondland reiterated the quid pro 
     quo to Ukrainian officials during a meeting at the White 
     House.\64\ Dr. Hill testified that Mr. Bolton advised 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.'' \65\ Over the next two weeks, Mr. Giuliani 
     coordinated with Ambassadors Sondland and Volker to arrange a 
     phone call between President Trump and President Zelensky for 
     President Zelensky to inform President Trump that he would 
     announce the investigations.\66\
       On July 25, President Trump spoke on the phone with 
     President Zelensky.\67\ At one point, President Zelensky 
     thanked President Trump for the ``great support'' in military 
     assistance and indicated that Ukraine would be interested in 
     purchasing more Javelin anti-tank missiles soon.\68\ In 
     response, immediately after the Javelin reference, President 
     Trump stated as follows: ``I would like you to do us a favor 
     though.'' \69\ President Trump brought up the investigations 
     that he sought into the Ukrainian election interference and 
     Biden conspiracy theories.\70\ After the call, Ambassador 
     Sondland informed a State Department aide that President 
     Trump ``did not give a [expletive] about Ukraine'' and he 
     only cared only about ``big stuff,'' meaning `` `the Biden 
     investigation' that Mr. Giuliani was pushing.'' \71\
       Around that time, the Ukrainian government also became 
     aware that President Trump was withholding military aid.\72\ 
     On August 12, Ambassadors Volker and Sondland, with 
     consultation from Mr. Giuliani, edited a draft statement for 
     President Zelensky to publically release that included 
     explicit references to ``Burisma and the 2016 U.S. 
     elections.'' \73\ On that same day, a whistleblower filed a 
     complaint with the Intelligence Community Inspector General 
     expressing concerns about President Trump's phone call with 
     President Zelensky on July 25.\74\
       Ukraine ultimately did not release the statement regarding 
     investigations and no further action was taken regarding a 
     White House meeting.\75\ Furthermore, there were increasing 
     concerns among national security officials regarding 
     President Trump's hold on military aid, which many began to 
     understand was meant to pressure Ukraine too.\76\ Ambassador 
     Sondland testified that President Trump's effort to condition 
     release of the security assistance on Ukraine announcing 
     investigations was as clear as ``two plus two equals four.'' 
     \77\
       On September 7, President Trump and Ambassador Sondland 
     spoke on the telephone and Ambassador Sondland explained that 
     President told him ``there was no quid pro quo, but President 
     Zelensky must announce the opening of the investigations and 
     he should want to do it.'' \78\ Shortly after, on September 
     9, Ambassador Taylor texted Ambassadors Sondland and Volker 
     and explicitly said, ``I think it's crazy to withhold 
     security assistance for help with a political campaign.'' 
     \79\ On that same day, the Intelligence Community Inspector 
     General notified Congress of the August 12 whistleblower 
     complaint regarding President Trump's July 25 phone call with 
     President Zelensky.\80\
       Two days later, President Trump unexpectedly released his 
     hold on Ukraine's security assistance.\81\ Since President 
     Trump lifted the hold, however, he has continued to press 
     Ukraine, and even other foreign countries, to open 
     investigations into his political rival.\82\ For example, on 
     October 3, President Trump stated as follows on the White 
     House lawn:
       Well I would think that if they [Ukraine] were honest about 
     it, they'd start a major investigation into the Bidens. It's 
     a very simple answer. They should investigate the Bidens. . . 
     . Likewise, China should start an investigation into the 
     Bidens because what happened in China is just about as bad as 
     what happened with Ukraine. So, I would say that President 
     Zelensky, if it were me, I would recommend that they start an 
     investigation into the Bidens.\83\
       To date, President Zelensky still has not met with 
     President Trump at the White House.
     Congressional Investigations
       As noted above, Congress was notified on September 9 of the 
     August 12 whistleblower complaint regarding President Trump's 
     phone call with Ukraine.\84\ Speaker Nancy Pelosi announced 
     on September 24 that the House would move forward with an 
     official impeachment inquiry.\85\
       On September 9 and September 24, three House Committee sent 
     letters to White House Counsel Pat Cipollone asking for six 
     specific categories of documents related to the Ukraine 
     investigation.\86\ The White House did not respond, and as a 
     result, the Committees issued a subpoena to Acting White 
     House Chief of Staff, Mick Mulvaney.\87\
       On October 8, Mr. Cipollone responded and indicated that 
     ``President Trump cannot permit his Administration to 
     participate in this

[[Page S1208]]

     partisan inquiry under these circumstances.'' \88\ The letter 
     called the inquiry ``constitutionally invalid'' even though 
     the Constitution grants the House the sole power of 
     impeachment.\89\ The letter made reference to ``long-
     established Executive Branch confidentiality interests and 
     privileges,'' \90\ although President Trump has never 
     specifically asserted an executive privilege over a single 
     piece of information related to the inquiry.
       As a result of President Trump's blanket directive, every 
     Executive Branch agency that received an impeachment inquiry 
     request or subpoena has not complied with the request.\91\ 
     Specifically, the Executive Branch has not produced a single 
     document or permitted a single witness to testify in response 
     to a subpoena.\92\ The only witnesses who did testify or 
     submit documents did so in direct violation of the White 
     House's directive.\93\


                      IV. ARTICLES OF IMPEACHMENT

       As we know, Article I, Section 2, Clause 5 of the 
     Constitution states that ``[t]he Senate shall have the sole 
     Power to try all Impeachments.'' \94\ As a Senator reviewing 
     this case, I have based my assessment of the evidence on the 
     following two questions:
       (1) Did the president do what he is charged with in the 
     Articles?; and
       (2) If so, is that action an impeachable offense that 
     warrants removal from office?
     Abuse of Power
       In the first Article of Impeachment, the House of 
     Representatives charged President Trump with abusing his 
     power as President by corruptly ``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.'' \95\ In this case, 
     I have found that the House has presented substantial, 
     persuasive evidence to prove the allegations in Article I.
       First, there is no dispute that the White House directly 
     withheld $391 million dollars in military aid from 
     Ukraine.\96\ The Office of Management and Budget (OMB) held 
     the aid, at the direction of the President, despite the 
     Department of Defense and the State Department certifying 
     that Ukraine was taking necessary measures to reduce 
     corruption.\97\ Furthermore, all agencies--except OMB--
     strongly supported the release of the aid because it was in 
     the national interest of the United States.\98\
       Nor is there dispute that President Trump withheld a White 
     House meeting with President Zelensky. On his April 21 phone 
     call, President Trump explicitly invited President Zelensky 
     to the White House in the future.\99\ However, after former 
     Vice President Joe Biden announced his candidacy for 
     President just a few days later, President Zelensky--despite 
     numerous efforts--still has not met with President Trump at 
     the White House.
       Second, the evidence establishes that President Trump 
     conditioned the aid and the White House meeting on Ukraine 
     announcing investigations into Burisma and the 2016 election. 
     In the July 25 phone call, President Trump asked President 
     Zelensky to ``do us a favor though'' and referenced the 2016 
     election and Burisma investigations immediately after 
     President Zelensky brought up military assistance.\100\
       Related to the White House meeting, Ambassador Sondland 
     could not have been more clear when he testified that 
     ``yes,'' there was a quid pro quid conditioning a White House 
     meeting with Ukraine announcing investigations into the 
     Bidens and Burisma.\101\ He further testified that the 
     conditioning of the White House meeting and military 
     assistance on Ukraine publically announcing investigations 
     was as clear as ``2+2=4.'' \102\
       So, the question is: Why? Was President Trump acting 
     corruptly to advance his own political interests, or was he, 
     as his defense attorneys would have us believe, deeply 
     concerned about ongoing ``corruption'' in Ukraine and 
     ``burden-sharing?'' \103\ The facts clearly established that 
     President Trump was acting corruptly to further his own 
     political interests.
       First, while the President's defense lawyers have rightly 
     argued that the President ``defines foreign policy,'' \104\ 
     the facts do not support that the President's actions related 
     to Ukraine were based on ``legitimate concerns'' regarding 
     corruption and burden-sharing.\105\ Also, if the President 
     was so concerned about corruption in Ukraine, why did he 
     dismiss one of the Nation's best corruption-fighting 
     diplomats, Ambassador Marie Yovanovitch? \106\
       Second, the President was utilizing his personal attorney, 
     Mr. Giuliani, to coordinate the announcement of 
     investigations in Ukraine. Mr. Giuliani explicitly said that 
     he was not engaged in foreign policy, but was acting on 
     behalf of President Trump in his ``personal capacity.'' \107\ 
     The State Department also released a statement in August 
     emphasizing that Mr. Giuliani is a private citizen acting in 
     his personal capacity and ``does not speak on behalf of the 
     U.S. government.'' \108\ Accordingly, one cannot reasonably 
     argue that the investigations pursued by Mr. Giuliani were 
     related to ``legitimate'' foreign policy when they were 
     coordinated by the President's personal attorney for the 
     President's personal benefit.
       Third, it was the prior practice of the Administration to 
     release aid to Ukraine without delay or regard to alleged 
     corruption and burden-sharing concerns. Both of these 
     asserted concerns were an after-the-fact distraction from the 
     truth. The Trump Administration disbursed--without question--
     approximately $511 million and $359 million to Ukraine in 
     2017 and 2018, respectively.\109\ The only thing that changed 
     in 2019 was that former Vice President Joe Biden announced 
     that he was running for President.
       Finally, the proposed investigations into Burisma and 2016 
     election interference were debunked conspiracy theories that 
     would have only benefited one person--Donald Trump. Regarding 
     Burisma, President Trump claimed that former Vice President 
     Biden corruptly forced Ukraine to fire then-Prosecutor 
     General Shokin to avoid further investigation into 
     Burisma.\110\ The truth is that Vice President Biden was 
     actually pursuing Mr. Shokin's termination--with bipartisan 
     and international support--because Mr. Shokin was a corrupt 
     and ineffective prosecutor.\111\ In fact, Mr. Shokin was not 
     actively investigating Burisma and his removal would have 
     made it more likely--not less--that Burisma would be 
     investigated in the future.\112\
       Furthermore, even if we were to accept that President Trump 
     had legitimate interests regarding alleged corruption in 
     Ukraine, he certainly should not have asked a foreign 
     government to announce the investigation. Rather, he should 
     have gone through official channels and asked the Department 
     of Justice to look into the allegations.\113\ Ambassador 
     Sondland indicated that President Trump was only concerned 
     about the announcement of investigations--he was not 
     concerned with the actual completion of investigations.\114\ 
     President Trump was not actually interested in corruption in 
     Ukraine, but was only concerned with harming a political 
     opponent with the announcement of an investigation.
       Regarding Ukrainian election interference, President Trump 
     has suggested that Ukraine attempted to help the Hillary 
     Clinton campaign in 2016 by framing Russia and hacking a 
     Democratic National Committee server.\115\ This theory is not 
     supported by any evidence. The U.S. Intelligence Community, 
     the Senate Select Committee on Intelligence and Special 
     Counsel Robert Mueller all came to the conclusion that 
     Russia, not Ukraine, interfered in the 2016 election.\116\ 
     Dr. Fiona Hill called this Ukraine theory a ``fictional 
     narrative that is being perpetrated and propagated by the 
     Russian security services'' to raise doubts about Russia's 
     own culpability and to harm the relationship between the 
     United States and Ukraine.\117\ President Trump's former 
     Homeland Security Advisor, Tom Bossert, also indicated 
     that the Ukraine theory was ``not only a conspiracy 
     theory, it is completely debunked.'' \118\ Pursuing such a 
     clearly debunked conspiracy theory only served to benefit 
     President Trump, and Putin, by raising doubts regarding 
     Russia's own election interference and its preference for 
     President Trump's election in 2016.
       Based on this evidence, it is clear that President Trump 
     acted corruptly by conditioning the release of military aid 
     and a White House meeting on Ukraine announcing 
     investigations into his political opponent.
     Obstruction of Congress
       Under the second Article of Impeachment, the House charged 
     that President Trump has obstructed Congress by directing the 
     ``the unprecedented, categorical, and indiscriminate defiance 
     of subpoenas issued by the House of Representatives pursuant 
     to its `sole Power of Impeachment.' '' \119\ I have concluded 
     that the House has presented substantial evidence to prove 
     the allegations in this Article.
       On October 8, 2019, during the House impeachment inquiry, 
     the White House Counsel wrote that ``President Trump cannot 
     permit his Administration to participate in this partisan 
     inquiry under these circumstances.'' \120\ As a result of 
     President Trump's directives, the House did not receive a 
     ``single document'' from the White House, the Vice President, 
     OMB, the Department of State, DOD or the Department of 
     Energy--despite 71 requests and demands.\121\ Furthermore, 
     the only witnesses who testified or produced documents did so 
     in opposition to the President's directive.\122\
       President Trump did not assert a single claim of 
     ``executive privilege'' over any specific document or piece 
     of testimony during this inquiry.\123\ Rather, he issued a 
     blanket directive that completely denied the constitutional 
     oversight responsibilities of the House.\124\ Based on this 
     evidence, it is clear that President Trump has obstructed 
     Congress.


                         V. Impeachable Conduct

       Having established that the President did, in fact, engage 
     in the conduct alleged in these Articles--I now turn to 
     whether this conduct warrants removal from office.
       During the Constitutional Convention of 1787, our Founders 
     grappled significantly with how to elect the Executive, but 
     they also debated how to hold the Executive accountable. 
     While some delegates believed that the President should only 
     be held accountable at the ballot box through elections, 
     others voiced the logical concern that ``if [the President] 
     be not impeachable whilst in office, he will spare no efforts 
     or means whatever to get himself re-elected.'' \125\ After 
     much debate, the Convention voted that the Executive shall be 
     ``removable on impeachments'' \126\ and later confirmed the 
     grounds for impeachment included ``Treason, bribery and other 
     high crimes and misdemeanors.'' \127\
       ``High Crimes and Misdemeanors'' is left ambiguous in the 
     Constitution. At the time of the drafting, the Founders' 
     understanding

[[Page S1209]]

     of ``high Crimes and Misdemeanors'' was informed by centuries 
     of English legal precedent.\128\ This understanding was 
     reflected in Federalist No. 65, written by Alexander 
     Hamilton, which explained that impeachment should stem from 
     an ``abuse or violation of some public trust.'' \129\ Noted 
     historian Ron Chernow explained that Hamilton's understanding 
     of impeachment should ``count heavily because he was the 
     foremost proponent of a robust presidency, yet he also 
     harbored an abiding fear that a brazen demagogue could seize 
     the office.'' \130\ Informed by this history, Congress has 
     consistently interpreted ``high Crimes and Misdemeanors'' 
     broadly to mean ``serious violations of the public trust.'' 
     \131\
       The President's defense lawyers argued that impeachment 
     requires a violation of a criminal statute to be 
     constitutionally valid.\132\ This argument is not supported 
     by historical precedent, credible scholarship or our common 
     sense about the sacred notion of the public trust.\133\ 
     When applying the accurate Hamiltonian standard for 
     impeachment--an ``abuse or violation of some public 
     trust''--it is clear that President Trump's conduct 
     exceeds that standard. Any effort to corrupt an election 
     must be met with a swift measure of accountability as 
     provided for under the impeachment clause in the 
     Constitution. There is no other remedy to constrain a 
     President who has acted, time and again, to advance his 
     personal interests over those of the Nation.
       Furthermore, since his candidacy, President Trump has 
     engaged in substantial and ongoing efforts to solicit foreign 
     interference in our elections. As detailed in Special Counsel 
     Mueller's report, the Trump campaign routinely welcomed 
     Russian interference in the 2016 presidential election 
     because they ``expected [the Campaign] would benefit 
     electorally from information stolen and released through 
     Russian efforts.'' \134\ As an illustration of just how 
     brazen President Trump has become in his conduct, his July 25 
     phone call with President Zelensky occurred just one day 
     after Special Counsel Mueller testified in Congress, where he 
     warned of the ongoing threat of foreign interference in 
     elections.\135\ As the Washington Post reported on September 
     21 in a story written by three reporters who have covered the 
     President for several years, the President's conduct on the 
     Ukraine call revealed ``a president convinced of his own 
     invincibility--apparently willing and even eager to wield the 
     vast powers of the United States to taint a political foe and 
     confident that no one could hold him back.'' \136\
       The President's blanket obstruction of Congress also 
     substantially imperils our constitutional system of checks 
     and balances. Not only has this President taken the 
     unprecedented step of issuing an outright refusal to 
     cooperate with Congressional oversight in this case, but 
     President Trump has exhibited an ongoing hostility to 
     oversight of his administration. As detailed in Special 
     Counsel Mueller's report, President Trump engaged in ten 
     distinct efforts to obstruct and curtail investigations into 
     his conduct and Russia's interference in the 2016 
     election.\137\ It is clear that this President has engaged in 
     an ongoing pattern of behavior that threatens to diminish any 
     meaningful future oversight of the Executive Branch.
       Given the President's ongoing pattern of corrupt behavior, 
     especially as it relates to the next election, I find him 
     ``guilty'' under both Articles of Impeachment.


                             VI. Conclusion

       Our Founders had the foresight to ensure that the power of 
     the President was not unlimited and that Congress could--if 
     necessary--hold the Executive accountable for abuses of power 
     through the impeachment process. This Senate trial is not 
     simply about grave presidential abuse of power, it is about 
     our Democracy, the sanctity of our elections and the very 
     values that the Founders agreed should guide our Nation.
       The inscription--``[a]ll public service is a trust, given 
     in faith and accepted in honor''--serves as a reminder to us 
     all of the bedrock principles of our republic. We must hold 
     those accountable who violate this sacred trust. President 
     Trump dishonored that public trust given to him by abusing 
     his power for personal, political gain. In order to prevent 
     continuing interference in our upcoming election and blatant 
     obstruction of Congress, the Senate should find him guilty 
     under both Articles.


                                endnotes

       1. The Federalist No. 65 (Alexander Hamilton).
       2. Vivian Salama & Julie Pace, Trump Has Embraced 
     Autocratic Leaders Without Hesitation, PBS (Apr. 19, 2017), 
     https://www.pbs.org/newshour/world/trump-embraced-autocratic-
leaders-without-hesitation. See also Michael S. Schmidt & 
     Maggie Haberman, Bolton Was Concerned That Trump Did Favors 
     for Autocratic Leaders, Book Says, N.Y. TIMES (Jan. 27, 
     2020), https://www.nytimes.com/2020/01/27/us/politics/john-
bolton-trump-book-barr.html (explaining that President 
     Trump's former National Security Advisor, John Bolton, was 
     concerned that ``President Trump was effectively granting 
     personal favors to . . . autocratic leaders'').
       3. Transcript: Trump and Putin's Joint Press Conference, 
     NPR (July 16, 2018) [hereinafter Helsinki Transcript], 
     https://www.npr.org/2018/07/16/629462401/transcript-
president-trump-and-russian-president-putins-joint-press-
 conference.
       4. U.S. Intelligence CMTY., ICA 2017-01D, Assessing Russian 
     Activities and Intentions in recent US Elections ii (2017).
       5. Helsinki Transcript, supra note 3.
       6. How Republican Lawmakers Responded to Trump's Russian 
     Meddling Denial, N.Y. Times (July 17, 2018), https://
www.nytimes.com/interactive/2018/07/16/us/politics/
republicans-trump-putin-russia-reaction.html.
       7. Niels Lesniewski, `Pathetic Rout,' `Tragic Mistake' and 
     `Painful'--John McCain Holds Little Back in Describing 
     Helsinki, Rollcall (July 16, 2018), https://www.rollcall.com/
news/politics/mccain-calls-trump-performance-with-putin-a-
pathetic-rout.
       8. H.R. Res. 755, 116th Cong. art. I (2019).
       9 See 166 Cong. Rec. S438-41 (daily ed. Jan. 21, 2020) 
     (identifying the amendments proposed by Minority Leader 
     Schumer seeking documents and witnesses).
       10. See id. at S394-431 (detailing the amendments and roll 
     call votes on the amendments).
       11. Press Release, Quinnipiac Univ. Poll, 75% Of Voters Say 
     Allow Witnesses In Senate Impeachment Trial, Quinnipiac 
     University National Poll Finds; 53% Say President Trump Not 
     Telling Truth About Ukraine (Jan. 28, 2020), https://
poll.qu.edu/national/release-detail?ReleaseID=3654.
       12. Sheryl Gay Stolberg, McConnell, Coordinating With White 
     House, Lays Plans for Impeachment Trial, N.Y. Times (Dec. 17, 
     2019), https://www.nytimes.com/2019/12/13/us/politics/
mcconnell-white-house-impeachment-trial.html.
       13. Press Release, Citizens For Responsibility & Ethics in 
     Washington, New Analysis: Every Impeachment Trial Has Had New 
     Witnesses (Jan. 28, 2020), https://www.citizensforethics.org/
press-release/new-witnesses-impeachment/.
       14. Id.
       15. I Robert S. Mueller, III, U.S. Dep't of Justice, Report 
     on the Investigation into Russian Interference in the 2016 
     Presidential Election 1 (2019) [hereinafter Mueller Report].
       16. Id. at 1-2.
       17. U.S. Intelligence Cmty., supra note 4, at ii.
       18. 2 Select Comm. on Intelligence, U.S. Senate, 116th 
     Cong. Report on Russian Active Measures Campaigns and 
     Interference in the 2016 U.S. Election: Russia's Use of 
     Social Media 3-4 (Comm. Print 2019).
       19. I Mueller Report, supra note 15, at 5.
       20. Id. at 49.
       21. Id.
       22. Transcript: ABC News' George Stephanopoulos' Exclusive 
     Interview with President Trump, ABC News (June 16, 2019), 
     https://abcnews.go.com/Politics/transcript-abc-news-george-
stephanopoulos-exclusive-interview-president/
story?id=63749144.
       23. @realDonaldTrump, Twitter (July 29, 2018, 3:35 PM), 
     https://twitter.com/realdonaldtrump/status/
 1023653191974625280; see also Olivia Paschal, Trump's Tweets 
     and the Creation of `Illusory Truth,' Atlantic (Aug. 3, 
     2018), https://www.theatlantic.com/politics/archive/2018/08/
how-trumps-witch-hunt-tweets-create-an-illusory-truth/566693/ 
     (explaining that President Trump referred to the Mueller 
     investigation as a ``witch hunt'' no less than 84 times 
     between January and August 2018).
       24. @realDonaldTrump, Twitter (Aug. 1, 2018, 3:35 PM), 
     https://twitter.com/realdonaldtrump/status/
 1024656465158721536.
       25. II Mueller Report, supra note 15, at 62-64.
       26. Id. at 77-90.
       27. Id. at 113-20.
       28. Oversight of the Report on the Investigation Into 
     Russian Interference in the 2016 Presidential Election: 
     Former Special Counsel Robert S. Mueller, III: Hearing Before 
     the H.R. Comm. on the Judiciary, 116th Cong. 6 (2019) 
     [hereinafter Mueller Hearing I] (statement of Robert S. 
     Mueller, III, Special Counsel); Letter from the Honorable 
     William Barr, Att'y Gen., U.S. Dep't of Justice, to Chairman 
     Lindsay Graham, S. Comm. on the Judiciary, et al. (Mar. 24, 
     2019), https://www.justice.gov/ag/page/file/1147981/download.
       29. A Sitting President's Amenability to Indictment and 
     Criminal Prosecution, 24 Op. O.L.C. 222 (2000), https://
www.justice.gov/sites/default/files/olc/opinions/2000/10/31/
op-olc-v024-p0222_0.pdf.
       30. DOJ Alumni Statement, Statement by Former Federal 
     Prosecutors, Medium (May 6, 2019), https://medium.com/
@dojalumni/statement-by-former-federal-prosecutors-
 8ab7691c2aa1.
       31. Mueller Hearing I, supra note 28; Former Special 
     Counsel Robert S. Mueller III on the Investigation into 
     Russian Interference in the 2016 Presidential Election: 
     Hearing Before the H.R. Perm. Select Comm. on Intelligence, 
     116th Cong. (2019) [hereinafter Mueller Hearing II].
       32. Mueller Hearing II, supra note 31, at 75.
       33. H.R. Permanent Select Comm. on Intelligence, The Trump-
     Ukraine Impeachment Inquiry Report, H.R. Rep. No. 116-335, at 
     2-3 (2019) [hereinafter HPSCI Report].
       34. Id. at 39.
       35. Id.
       36 Molly Nagle, Former Vice President Joe Biden to Announce 
     He's Entering the 2020 Race Thursday Morning, ABC News (Apr. 
     23, 2019), https://abcnews.go.com/Politics/vice-president-
joe-biden-announce-hes-entering-2020/story?id=62558852.
       37. HPSCI Report, supra note 33, at 25.
       38. Id. at 28.
       39. Id.
       40. Id. at 26-27.
       41. Id. at 29.
       42. Id. at 29-30.
       43. Id.
       44. Id. at 88-89. Related to the Ukraine election 
     interference theory, President

[[Page S1210]]

     Trump's former Homeland Security Advisor, Tom Bossert, 
     publicly stated that it was ``not only a conspiracy theory, 
     it is completely debunked.'' Id. at 89. Dr. Fiona Hill, 
     former Senior Director of European and Russian Affairs at the 
     National Security Council, called it a ``fictional narrative 
     that is being perpetrated and propagated by the Russian 
     security services.'' Id. at 88. She also indicated that 
     former National Security Advisor H.R. McMaster ``spent a lot 
     of time'' trying to convince President Trump that the theory 
     was Russian propaganda. Id. at 89. Furthermore, FBI Director 
     Christopher Wray confirmed that the FBI had ``no information 
     that indicates that Ukraine interfered with the 2016 
     presidential election.'' Luke Barr & Alexander Mallin, FBI 
     Director Pushes Back On Debunked Conspiracy Theory About 2016 
     Election Interference, ABC News (Dec. 9, 2019), https://
abcnews.go.com/Politics/fbi-director-pushes-back-debunked-
conspiracy-theory-2016/story?id=67609244.
       45. HPSCI Report, supra note 33, at 46.
       46. Id. at 47.
       47. Shane Harris et al., Former White House Officials Say 
     They Feared Putin Influenced the President's Views on Ukraine 
     and 2016 Campaign, Wash. Post (Dec. 19, 2019), https://
www.washingtonpost.com/national-security/former-white-house-
officials-say-they-feared-putin-influenced-the-presidents-
views-on-ukraine-and-2016-campaign/2019/12/19/af0fdbf6-20e9-
11ea-bed5-880264cc91a9_story.html.
       48. Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to 
     Push for Inquiries That Could Help Trump, N.Y. Times (May 9, 
     2019), https://www.nytimes.com/2019/05/09/us/politics/
giuliani-ukraine-trump.html.
       49. Id. Mr. Giuliani also wrote a letter to President-elect 
     Zelensky requesting a meeting as the attorney for President 
     Trump in his capacity as a ``private citizen, not as 
     President of the United States.'' H.R. Comm. on the 
     Judiciary, Impeachment of President Donald John Trump: The 
     Evidentiary Record Pursuant to H. Res. 798, H.R. Doc. No. 
     116-95, vol. IV, at 7639 (2020) [hereinafter Evidentiary 
     Record].
       50. HPSCI Report, supra note 33, at 39, 47.
       51. Id. at 48.
       52. Id. at 50.
       53. Id. Despite reports that certain Ukrainian officials 
     did prefer Hillary Clinton in the 2016 election, there is 
     little comparison to the Russian interference personally 
     directed by President Vladimir Putin to assist the Trump 
     campaign: ``There's little evidence of such a top-down effort 
     by Ukraine. Longtime observers suggest that the rampant 
     corruption, factionalism and economic struggles plaguing the 
     country--not to mention its ongoing strife with Russia--would 
     render it unable to pull off an ambitious covert interference 
     campaign in another country's election.'' Kenneth P. Vogel & 
     David Stern, Ukrainian Efforts to Sabotage Trump Backfire, 
     Politico (Jan. 11, 2017), https://www.politico.com/story/
2017/01/ukraine-sabotage-trump-backfire-233446.
       54. HPSCI Report, supra note 33, at 50.
       55. Id. at 57.
       56. Id.
       57. Id. at 57-58.
       58. Id. at 59.
       59. U.S. Gov't Accountability Off., B-331564, Matter of 
     Office of Mgmt. & Budget--Withholding of Ukraine Sec. 
     Assistance (2020), https://www.gao.gov/assets/710/703909.pdf.
       60. HPSCI Report, supra note 33, at 59-62. See, e.g., 
     Evidentiary Record, vol. II, pt. 1, supra note 49, at 48-49 
     (testifying that burden-sharing was first provided as a 
     rationale to him in September).
       61. HPSCI Report, supra note 33, at 70-71.
       62. Id. at 72.
       63. Id. at 82.
       64. Id. at 76-78.
       65. Id. at 78.
       66. Id. at 79-84.
       67. Id. at 86.
       68. Id. at 87.
       69. Id. at 87-88.
       70. Id. at 88-90.
       71. Id. at 99.
       72. Id. at 69-70.
       73. Id. at 106-08.
       74. Id. at 128.
       75. Id. at 110-11, 131-33.
       76. Id. at 111-25.
       77. Id. at 16.
       78. Id. at 120.
       79. Id. at 122.
       80. Id. at 128.
       81. Id. at 129-30.
       82. Id. at 131-35.
       83. PBS NewsHour, Trump Says China Should Investigate the 
     Bidens, YouTube (Oct. 3, 2019), https://youtu.be/
eJd1y0TPPl8?t=99.
       84. HPSCI Report, supra note 33, at 128.
       85. Id. at 173.
       86. Id. at 181.
       87. Id.
       88. Letter from Pat A. Cipollone, Counsel to the President, 
     to Speaker Nancy Pelosi, House of Representatives, et al., 2 
     (Oct. 8, 2019), https://www.whitehouse.gov/wp-content/
uploads/2019/10/PAC-Letter-10.08.2019.pdf.
       89. Id.
       90. Id. at 4.
       91. HPSCI Report, supra note 33, at 180.
       92. Id.
       93. Id.
       94. U.S. Const. art. I, Sec. 2, cl. 5.
       95. H.R. Res. 755, 116th Cong. art. I (2019).
       96. See supra text accompanying notes 58-60.
       97. HPSCI Report, supra note 33, at 57.
       98. Id. at 60-62.
       99. Id. at 39.
       100. Id. at 87-90.
       101. Id. at 82.
       102. Id. at 16.
       103. Trial Memorandum of President Donald J. Trump at 10, 
     In Re Impeachment of President Donald J. Trump (Jan. 20, 
     2020).
       104. Id. at 2.
       105. Id. at 10.
       106. See supra text accompanying notes 36-40.
       107. Evidentiary Record, vol. IV, supra note 49, at 7639.
       108. Allan Smith, Giuliani Says State Dept. Aided His 
     Effort to Press Ukraine on Trump Opponents, NBC News (Aug. 
     22, 2019), https://www.nbcnews.com/politics/donald-trump/
giuliani-says-state-dept-aided-his-effort-press-ukraine-
trump-n1045171.
       109. Statement of Material Facts: Attachment to the Trial 
     Memorandum of the United States House of Representatives at 
     14, In Re Impeachment of President Donald J. Trump (Jan. 18, 
     2020) [hereinafter House Manager's Statement of Material 
     Facts].
       110. HPSCI Report, supra note 33, at 42-43.
       111. Id.
       112. Id. at 43.
       113. Id. at 108-09.
       114. House Manager's Statement of Material Facts, supra 
     note 109, at 20.
       115. HPSCI Report, supra note 33, at 88.
       116. Id. at 29.
       117. Id. at 88.
       118. Id. at 89.
       119. H.R. Res. 755, 116th Cong. art. II (2019) (quoting 
     U.S. Const. art. I, Sec. 2, cl. 5).
       120. HPSCI Report, supra note 33, at 175
       121. Id. at 180.
       122. Id.
       123. Id. at 179.
       124. Id.
       125. 2 Max Farrand, ed., The Records of the Federal 
     Convention of 1787, 64 (1911) (Madison).
       126. Id. at 69 (Madison).
       127. Id. at 550 (Madison). See also U.S. Const. art. II, 
     Sec. 4 (``The President, Vice President and all civil 
     Officers of the United States, shall be removed from Office 
     on Impeachment for, and Conviction of, Treason, Bribery, or 
     other high Crimes and Misdemeanors.'').
       128. See Charles L. Black, Jr. & Philip Bobbitt, 
     Impeachment: A Handbook, New Edition 43 (2018) (``The phrase 
     `high Crimes and Misdemeanors' comes to us out of English law 
     and practice, starting (as far as we know) in 1386.'').
       129. The Federalist No. 65 (Alexander Hamilton).
       130. Ron Chernow, Hamilton Pushed For Impeachment Powers. 
     Trump Is What He Had In Mind., Wash. Post (Oct. 18, 2019), 
     https://www.washingtonpost.com/outlook/2019/10/18/hamilton-
pushed-impeachment-powers-trump-is-what-he-had-mind/
?arc404=true.
       131. H.R. Rept. No. 101-36, at 5 (1989).
       132. 166 Cong. Rec. S611 (daily ed. Jan. 27, 2020) 
     (statement of Counsel Dershowitz explaining that ``[p]urely 
     non-criminal conduct, including abuse of power and 
     obstruction of Congress, are outside the range of impeachable 
     offenses'').
       133. See e.g., S. Misc. Doc. No. 40-42, at 8 (1868) 
     (impeaching President Johnson for bringing ``the high office 
     of the President of the United States into contempt, ridicule 
     and disgrace''); H.R. Rept. No. 93-1305, at 2 (1974) 
     (recommending Articles of Impeachment against President Nixon 
     because he ``prevented, obstructed, and impeded the 
     administration of justice''); H.R. Res. 601, 105th Cong. art. 
     IV (1998) (impeaching President Clinton for an ``abuse of 
     high office'').
       134. I Mueller Report, supra note 15, at 5.
       135. See supra text accompanying note 31-33.
       136. Philip Rucker et al., Trump's Ukraine Call Reveals a 
     President Convinced of His Own Invincibility, Wash. Post 
     (Sept. 21, 2019), https://www.washingtonpost.com/politics/
trumps-ukraine-call-reveals-a-president-convinced-of-his-own-
invincibility/2019/09/21/1a56466c-dc6a-11e9-ac63-
3016711543fe_story.html.
       137. See II Mueller Report, supra note 15, at 3-4 
     (summarizing the ten incidents).

  Mr. CRAMER. Mr. President, I seek recognition today regarding the 
recent impeachment trial of President Donald Trump. This was a rare 
moment in our young Nation's history. We had little to guide us other 
than the Founding Fathers' collective wisdom and sparse precedent.
  The process may seem daunting, and the debate over even the most 
basic mechanics of the trial could leave the future Members of this 
body susceptible to deception or misinformation. I therefore want to 
offer my thoughts for future Senators when this issue inevitably rises 
again.
  The impeachment trial proceedings are unique. It is an inherently 
political process analogous to a legal trial. There is a prosecution, 
represented by the House managers, as well as a defense, representing 
the President. There is also a presiding judge, the Chief Justice of 
the Supreme Court.
  As in a courtroom, the prosecution and defense take opposite sides of 
the judge as they make their arguments. The burden of proof is on the 
prosecutors, who must present their evidence, and it is the job of the 
defense to refute the arguments.

[[Page S1211]]

  There is also a jury, the U.S. Senate. Like a courtroom jury, we sit 
in silence throughout the trial listening to the arguments of both 
sides and are asked to render a verdict at the conclusion. However, 
unlike a courtroom but as instructed by the Constitution, we are not 
jurors subject to peremptory challenge; we are elected officials 
instructed to offer impartial justice based on the evidence presented 
to us.
  We are not expected to check our knowledge or our existing 
relationships at the door. If this were a true trial, all Senators 
would have to recuse themselves for the inherent bias connected to the 
election certificate they earned. As Alexander Hamilton wrote in 
Federalist Paper 65, ``In many cases, it [impeachment] will connect 
itself with the pre-existing factions, and will enlist all their 
animosities, partialities, influence, and interest on one side or on 
the other.'' Rather, we are asked to follow our conscience, to hear the 
arguments of both sides with an open mind and deliver a verdict. We 
also differ from courtroom jurors in that we establish the rules for 
the proceedings. This is done through organizing resolutions we debate 
and pass.
  Before considering the merits of this particular case, it is 
important to discuss the idea of impeachment itself in light of the 
present context. During President Trump's hearing, the President's 
legal team alluded to the idea that a President can do essentially 
whatever he or she wants, and it will not be considered an impeachable 
offense as long as that President's interests in doing so align with 
the interests of the United States.
  ``If a President does something which he believes will help him get 
elected in the public interest, that cannot be the kind of quid pro quo 
that results in impeachment,'' said Alan Dershowitz, a member of the 
President's legal team, during the trial.
  I feel that particular statement is wrong. The Constitution grants no 
President absolute power. There is a threshold that can be reached. 
Thankfully, this was later clarified by Mr. Dershowitz in an opinion 
piece he wrote for The Hill entitled ``I never said the President could 
do anything to get re-elected.'' In it, he said:

       Any action by a politician motivated in part by a desire to 
     be reelected was, by its nature, corrupt. Moving to my 
     response, I listed three broad categories of relevant 
     motives, which are pure national interest to help the 
     military, pure corrupt motive to obtain a kickback, and 
     mixed-motive to help the national interest in a way that can 
     also help a reelection effort. I said the third motive was 
     often the reality of politics, and helping your own 
     reelection effort cannot by itself necessarily be deemed 
     corrupt.

  In the end, it is the duty of every Senator to determine whether the 
President acted in a purely self-interested manner without any regard 
for the national interest. Given the full context of his actions, it is 
clear President Trump did not act in a purely selfish, boundless 
manner.
  While the question of whether a President can commit a crime and 
therefore be impeached is firmly settled, there arises another question 
this impeachment trial did not sufficiently answer but must be 
addressed in the future.
  The Constitution says it is the job of the House of Representatives 
to impeach a President whose trial is held before the Senate. According 
to current Senate rules, our body must move forward with impeachment 
proceedings, but is that according to the Constitution?
  Article I, section 3 of the Constitution states:

       The Senate shall have the sole Power to try all 
     Impeachments. When sitting for that Purpose, they shall be on 
     Oath or Affirmation. When the President of the United States 
     is tried, the Chief Justice shall preside: And no Person 
     shall be convicted without the Concurrence of two-thirds of 
     the Members present.

  With this impeachment behind us, now is the time we as a body need to 
evaluate the constitutionality and wisdom of our rules requiring the 
Senate to move forward with any impeachment articles. We must reaffirm 
our right to dictate what is considered on the Senate floor and when it 
is considered, which is not without precedent.
  Article II, section 2 of the Constitution says:

       He [the President] shall nominate, and by and with the 
     Advice and Consent of the Senate, shall appoint Ambassadors, 
     other public Ministers and Consuls, Judges of the Supreme 
     Court, and all other Officers of the United States.

  In 2016, after the passing of Supreme Court Justice Antonin Scalia, 
President Barack Obama appointed a Supreme Court nominee to replace 
him. However, with the election of a new President just months away, 
the Senate declared it would not consider this particular nominee and 
would instead let the people decide whom they would like to nominate a 
Supreme Court Justice.
  The Senate was well within its right to decide the timing and 
consideration, or lack thereof, of this constitutional obligation to 
consider judicial nominations, and the same should be true of 
impeachment trials.
  This is a question in need of an answer for future impeachment 
proceedings because impeachment articles brought by the House 
completely derail Senate legislative activity. We are unable to 
consider legislation, nominations, or conduct any floor activity.
  While I agree such an enormous responsibility should elicit our 
undivided attention, it seems illogical to automatically grant primacy 
to impeachment articles, especially those as flawed as the ones 
presented by House Democrats.
  The House's impeachment process was entirely partisan. Since the 
moment he was sworn in, Democrats schemed to remove Donald Trump from 
office. By May of 2017, 26 Democratic Members of Congress had called 
for the impeachment of President Trump. Speaker Pelosi herself said 
impeachment was 2\1/2\ years in the making.
  When House Democrats finally agreed on a reason to impeach the 
President, their vote to begin the process received no Republican 
votes, and multiple Democrats voted against it. It does not seem 
unreasonable to me that a vote to begin an impeachment inquiry which 
has only partisan support and bipartisan opposition--as this one did--
is not what the Founders had in mind and is what they firmly rejected 
and cautioned us against.
  ``Complaints are everywhere heard from our most considerate and 
virtuous citizens, equally the friends of public and private faith, and 
of public and personal liberty, that our governments are too unstable, 
that the public good is disregarded in the conflicts of rival parties, 
and that measures are too often decided, not according to the rules of 
justice and the rights of the minor party, but by the superior force of 
an interested and overbearing majority,'' Founding Father James Madison 
wrote in Federalist Paper 10. ``However anxiously we may wish that 
these complaints had no foundation, the evidence, of known facts will 
not permit us to deny that they are in some degree true.''
  When it came time for the House to vote on impeaching the President, 
the same ``overbearing majority'' outcome occurred. No minds were 
changed, but the country was further torn apart and the process strayed 
beyond the original intent of the Founding Fathers. The two Articles of 
Impeachment before this body were, in my view, without merit. They were 
an affront to this institution and to our Constitution, representing 
the very same partisan derangement that worried our Founding Fathers so 
much that they made the threshold for impeachment so high.
  I think it would be universally agreeable that Impeachment Articles 
passed by a majority of one party and opposed by members of both 
parties at the very least fail the spirit of the Constitution. To this 
point, detractors could say the partisan nature of this impeachment 
proceeding is the fault of Republicans who blindly follow President 
Trump, rather than Democrats whose hatred for this President compels 
them to act more than the facts in front of them.
  Such an argument quickly falls apart when you read the statements of 
Republicans who found the President's actions inappropriate but did not 
believe they rose to the level of impeachment. That argument further 
corrodes when you consider the content of the Impeachment Articles and 
the partisan and secretive process House Democrats followed in writing 
them.
  Fundamentally, the Articles of Impeachment were incomplete. Democrats 
did not complete their own investigation before drafting and ultimately 
passing the articles, which is why Senate Democrats spent most of their 
time demanding witnesses and more documents. The House also did not 
provide

[[Page S1212]]

due process to the President, nor to the minority during the House 
investigation. In October of 2019, as the House began formally 
considering impeachment in earnest, Senator Lindsey Graham led several 
Senators in introducing S. Res. 378. It laid out specific issues we had 
with the House process in hopes it would remedy the situation before 
sending the articles to the Senate.
  In it, we mentioned five rights President Trump was being denied, 
although the House had provided similar due process to Presidents Nixon 
and Clinton during their impeachments. The denied rights included 
allowing the President to be represented by counsel, permitting the 
President's counsel to be present at all hearings and depositions, 
permitting the President's counsel to present evidence and object to 
the admission of evidence, allowing the President's counsel to call and 
cross-examine witnesses; and giving the President's counsel access to 
and the ability to respond to the evidence offered by the Committee.
  The impeachment process against President Trump had been nothing more 
than secretive hearings and selective leaks designed to sway public 
opinion and hurt the President politically. It was a hyper-partisan 
process completely void of due process, and that never changed until it 
reached the Senate. In our resolution, we also highlighted the fact 
that ``the main allegations against President Trump are based on 
assertions and testimony from witnesses whom he is unable to confront, 
as part of a process in which he is not able to offer witnesses in his 
defense or have a basic understanding of the allegations lodged against 
him.''
  The issue of evidence, both its origin and the lack of compelling 
proof from the House managers, became the foundation of this 
impeachment. This investigation began because an anonymous national 
security official approached Democratic chairman Adam Schiff with a 
secondhand claim that President Trump sought to withhold aid to a 
foreign country to force it to announce it would launch an 
investigation into one of the President's political rivals.
  President Trump was quick to offer the transcript of the phone call 
where this allegedly occurred. He did, and it showed there was, in 
fact, no quid pro quo, and House Democrats in their investigation were 
never able to produce a firsthand witness to testify otherwise.
  Future Senators should be sure to note the eagerness or reluctance of 
an accused President to share clarifying information. President Trump 
took unprecedented action to release the transcript of the conversation 
Democrats called into question--an action he was not legally required 
to take and most of his predecessors have never done. Contrast that 
with President Nixon, who fought until the end to hide his recorded 
conversations because he knew the contents were damning. Contrast 
President Trump's actions even further with the House Democrats who 
pursued a secretive, one-sided process to craft the narrative they 
wanted.
  Despite several pieces of information demonstrating the President's 
innocence and none to the contrary, House Democrats continued this 
crusade. Their fixation on his removal was a conclusion in search of a 
justification.
  They manufactured criminality from a simple phone conversation 
between world leaders, leaked by one of the many career bureaucrats who 
seem to have forgotten they work for the elected leaders in this 
country, not the other way around. Motives matter. In the future, 
Senators should be vigilant in figuring out an accuser's intention.
  There is a common narrative that career bureaucrats are simply 
righteous, opinion-less civil servants. This impeachment and the 
actions leading up to it prove the exact opposite. By no means are all 
of them evil or ill-willed, but this proceeding showed they are far 
from unbiased, and they are capable of weaponizing the tools and access 
they are given.
  Unsurprisingly, this led to two Impeachment Articles being sent to 
the Senate on a party-line vote that were without merit. They were an 
affront to this institution and to our Constitution, representing the 
very same partisan derangement that worried our Founding Fathers so 
much they made the threshold for impeachment this high.
  The Founders created the Senate for moments just like this. When 
Impeachment Articles are sent to the Senate, it is not our job to fix 
the mistakes made by the House, and it is not our job to finish an 
investigation it admittedly did not complete. It is the Senate's solemn 
duty to set aside the heat of the moment, prevent short-term stress 
from leading to long-term decay, and deliver impartial justice.
  As James Madison said at the Constitutional Convention, ``The Senate 
is to consist in its proceeding with more coolness, with more system, 
and with more wisdom, than the popular branch.'' That is why, even 
under the cloud of purely partisan politics of the House of 
Representatives, the Senate conducted a complete, comprehensive trial. 
The obvious result of which was the conclusion that the Democratic-led 
House of Representatives failed to meet the most basic standards of 
proof and dramatically lowered the bar for impeachment in the future to 
unacceptable levels.
  With all of this established, we as a Congress and as a nation must 
unite around some commonsense changes, both to institutional rules and 
to our understanding of the impeachment process. Lowering the bar for 
impeachment undermines our shared democratic principles.
  Impeachment must be a tool employed only when the evidence is 
overwhelming and well-founded. We must discourage future House actions 
like what we just witnessed from ever occurring again.
  We must also find ways to take on a bureaucracy run rampant. 
President Trump was impeached because an unelected bureaucrat provided 
falsehoods to an overly receptive Democratic House chairman's office 
with a directive to remove President Trump. The opinion of Federal 
career staff is not sacrosanct. Without further action, these 
impeachment proceedings will be interpreted as empowering to them, 
rather than a reminder of who holds constitutional power.
  Finally, as we seek to apply the lessons learned from this historic 
time, I was reminded of the words Chaplain Black offered to us during 
his daily opening prayer. ``We must pray for God's will to be done.'' 
There is a higher power than any of us, and our country would benefit 
from remembering that more often.

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