[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.
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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
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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.
____________________