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116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-346
_______________________________________________________________________
IMPEACHMENT OF DONALD J. TRUMP
PRESIDENT OF THE UNITED STATES
----------
R E P O R T
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
together with
DISSENTING VIEWS
TO ACCOMPANY
H. Res. 755
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 15, 2019.--Referred to the House Calendar and ordered to be
printed
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-346
_______________________________________________________________________
IMPEACHMENT OF DONALD J. TRUMP
PRESIDENT OF THE UNITED STATES
__________
R E P O R T
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
together with
DISSENTING VIEWS
to accompany
H. Res. 755
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 15, 2019.--Referred to the House Calendar and ordered to be
printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
* 38-640 WASHINGTON : 2019
COMMITTEE ON THE JUDICIARY
Jerrold Nadler, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, JR.
HENRY C. ``HANK'' JOHNSON, JR., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM MCCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Majority Staff
Amy Rutkin, Chief of Staff
Perry Apelbaum, Staff Director and Chief Counsel
John Doty, Senior Advisor
Aaron Hiller, Deputy Chief Counsel and Chief Oversight Counsel
Shadawn Reddick-Smith, Communications Director
Daniel Schwarz, Director of Strategic Communications
Moh Sharma, Director of Member Services and Outreach and Policy Advisor
David Greengrass, Senior Counsel
John Williams, Parliamentarian and Senior Counsel
Arya Hariharan, Deputy Chief Oversight Counsel
Barry Berke, Special Counsel
Norman Eisen, Special Counsel
Ted Kalo, Special Counsel
James Park, Chief Counsel of Constitution Subcommittee
Sophia Brill, Counsel
Milagros Cisneros, Counsel
Charles Gayle, Counsel
Maggie Goodlander, Counsel
Benjamin Hernandez-Stern, Counsel
Sarah Istel, Counsel
Danielle Johnson, Counsel
Joshua Matz, Counsel
Matthew Morgan, Counsel
Matthew N. Robinson, Counsel
Kerry Tirrell, Counsel
Madeline Strasser, Chief Clerk
Rachel Calanni, Professional Staff
Jordan Dashow, Professional Staff
William S. Emmons, Professional Staff
Julian Gerson, Professional Staff
Priyanka Mara, Professional Staff
Jessica Presley, Director of Digital Strategy
Kayla Hamedi, Deputy Press Secretary
Minority Staff
Brendan Belair, Staff Director, Counsel
Bobby Parmiter, Deputy Staff Director, Chief Counsel
Ashley Callen, Chief Oversight Counsel
Danny Johnson, Oversight Counsel
Jake Greenberg, Oversight Counsel
Paul Taylor, Chief Counsel, Constitution Subcommittee
Daniel Flores, Counsel
Ryan Breitenbach, Counsel
Jon Ferro, Parliamentarian, Counsel
Erica Barker, Deputy Parliamentarian
Ella Yates, Member Services Director
Andrea Woodard, Professional Staff Member
Jess Andrews, Communications Director
Amy Hasenberg, Press Secretary
Annie Richardson, Digital Director
C O N T E N T S
----------
Page
Introduction..................................................... 3
The Impeachment Inquiry.......................................... 6
Constitutional Grounds for Presidential Impeachment.............. 28
Article I: Abuse of Power........................................ 75
Article II: Obstruction of Congress.............................. 132
Hearings......................................................... 162
Committee Consideration.......................................... 162
Committee Votes.................................................. 162
Committee Oversight Findings..................................... 179
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 179
Duplication of Federal Programs.................................. 179
Performance Goals and Objectives................................. 179
Advisory on Earmarks............................................. 179
Dissenting Views................................................. 181
Appendix......................................................... 631
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-346
======================================================================
IMPEACHMENT OF DONALD JOHN TRUMP, PRESIDENT OF THE UNITED STATES
_______
December 15, 2019.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H. Res. 755]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 755) impeaching Donald John Trump,
President of the United States, for high crimes and
misdemeanors, having considered the same, report favorably
thereon pursuant to H. Res. 660 with an amendment and recommend
that the resolution as amended be agreed to.
The amendment is as follows:
Strike all that follows after the resolving clause and insert
the following:
That Donald John Trump, President of the United States, is impeached
for high crimes and misdemeanors and that the following articles of
impeachment be exhibited to the United States Senate:
Articles of impeachment exhibited by the House of Representatives of
the United States of America in the name of itself and of the people of
the United States of America, against Donald John Trump, President of
the United States of America, in maintenance and support of its
impeachment against him for high crimes and misdemeanors.
article i: abuse of power
The Constitution provides that the House of Representatives ``shall
have the sole Power of Impeachment'' and that the President ``shall be
removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors''. In his conduct of the
office of President of the United States--and in violation of his
constitutional oath faithfully to execute the office of President of
the United States and, to the best of his ability, preserve, protect,
and defend the Constitution of the United States, and in violation of
his constitutional duty to take care that the laws be faithfully
executed--Donald J. Trump has abused the powers of the Presidency, in
that:
Using the powers of his high office, President Trump solicited the
interference of a foreign government, Ukraine, in the 2020 United
States Presidential election. He did so through a scheme or course of
conduct that included soliciting the Government of Ukraine to publicly
announce investigations that would benefit his reelection, harm the
election prospects of a political opponent, and influence the 2020
United States Presidential election to his advantage. President Trump
also sought to pressure the Government of Ukraine to take these steps
by conditioning official United States Government acts of significant
value to Ukraine on its public announcement of the investigations.
President Trump engaged in this scheme or course of conduct for corrupt
purposes in pursuit of personal political benefit. In so doing,
President Trump used the powers of the Presidency in a manner that
compromised the national security of the United States and undermined
the integrity of the United States democratic process. He thus ignored
and injured the interests of the Nation.
President Trump engaged in this scheme or course of conduct through
the following means:
(1) President Trump--acting both directly and through his
agents within and outside the United States Government--
corruptly solicited the Government of Ukraine to publicly
announce investigations into--
(A) a political opponent, former Vice President
Joseph R. Biden, Jr.; and
(B) a discredited theory promoted by Russia alleging
that Ukraine--rather than Russia--interfered in the
2016 United States Presidential election.
(2) With the same corrupt motives, President Trump--acting
both directly and through his agents within and outside the
United States Government--conditioned two official acts on the
public announcements that he had requested--
(A) the release of $391 million of United States
taxpayer funds that Congress had appropriated on a
bipartisan basis for the purpose of providing vital
military and security assistance to Ukraine to oppose
Russian aggression and which President Trump had
ordered suspended; and
(B) a head of state meeting at the White House, which
the President of Ukraine sought to demonstrate
continued United States support for the Government of
Ukraine in the face of Russian aggression.
(3) Faced with the public revelation of his actions,
President Trump ultimately released the military and security
assistance to the Government of Ukraine, but has persisted in
openly and corruptly urging and soliciting Ukraine to undertake
investigations for his personal political benefit.
These actions were consistent with President Trump's previous
invitations of foreign interference in United States elections.
In all of this, President Trump abused the powers of the Presidency
by ignoring and injuring national security and other vital national
interests to obtain an improper personal political benefit. He has also
betrayed the Nation by abusing his high office to enlist a foreign
power in corrupting democratic elections.
Wherefore President Trump, by such conduct, has demonstrated that he
will remain a threat to national security and the Constitution if
allowed to remain in office, and has acted in a manner grossly
incompatible with self-governance and the rule of law. President Trump
thus warrants impeachment and trial, removal from office, and
disqualification to hold and enjoy any office of honor, trust, or
profit under the United States.
article ii: obstruction of congress
The Constitution provides that the House of Representatives ``shall
have the sole Power of Impeachment'' and that the President ``shall be
removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors''. In his conduct of the
office of President of the United States--and in violation of his
constitutional oath faithfully to execute the office of President of
the United States and, to the best of his ability, preserve, protect,
and defend the Constitution of the United States, and in violation of
his constitutional duty to take care that the laws be faithfully
executed--Donald J. Trump has directed the unprecedented, categorical,
and indiscriminate defiance of subpoenas issued by the House of
Representatives pursuant to its ``sole Power of Impeachment''.
President Trump has abused the powers of the Presidency in a manner
offensive to, and subversive of, the Constitution, in that:
The House of Representatives has engaged in an impeachment inquiry
focused on President Trump's corrupt solicitation of the Government of
Ukraine to interfere in the 2020 United States Presidential election.
As part of this impeachment inquiry, the Committees undertaking the
investigation served subpoenas seeking documents and testimony deemed
vital to the inquiry from various Executive Branch agencies and
offices, and current and former officials.
In response, without lawful cause or excuse, President Trump directed
Executive Branch agencies, offices, and officials not to comply with
those subpoenas. President Trump thus interposed the powers of the
Presidency against the lawful subpoenas of the House of
Representatives, and assumed to himself functions and judgments
necessary to the exercise of the ``sole Power of Impeachment'' vested
by the Constitution in the House of Representatives.
President Trump abused the powers of his high office through the
following means:
(1) Directing the White House to defy a lawful subpoena by
withholding the production of documents sought therein by the
Committees.
(2) Directing other Executive Branch agencies and offices to
defy lawful subpoenas and withhold the production of documents
and records from the Committees--in response to which the
Department of State, Office of Management and Budget,
Department of Energy, and Department of Defense refused to
produce a single document or record.
(3) Directing current and former Executive Branch officials
not to cooperate with the Committees--in response to which nine
Administration officials defied subpoenas for testimony, namely
John Michael ``Mick'' Mulvaney, Robert B. Blair, John A.
Eisenberg, Michael Ellis, Preston Wells Griffith, Russell T.
Vought, Michael Duffey, Brian McCormack, and T. Ulrich
Brechbuhl.
These actions were consistent with President Trump's previous efforts
to undermine United States Government investigations into foreign
interference in United States elections.
Through these actions, President Trump sought to arrogate to himself
the right to determine the propriety, scope, and nature of an
impeachment inquiry into his own conduct, as well as the unilateral
prerogative to deny any and all information to the House of
Representatives in the exercise of its ``sole Power of Impeachment''.
In the history of the Republic, no President has ever ordered the
complete defiance of an impeachment inquiry or sought to obstruct and
impede so comprehensively the ability of the House of Representatives
to investigate ``high Crimes and Misdemeanors''. This abuse of office
served to cover up the President's own repeated misconduct and to seize
and control the power of impeachment--and thus to nullify a vital
constitutional safeguard vested solely in the House of Representatives.
In all of this, President Trump has acted in a manner contrary to his
trust as President and subversive of constitutional government, to the
great prejudice of the cause of law and justice, and to the manifest
injury of the people of the United States.
Wherefore, President Trump, by such conduct, has demonstrated that he
will remain a threat to the Constitution if allowed to remain in
office, and has acted in a manner grossly incompatible with self-
governance and the rule of law. President Trump thus warrants
impeachment and trial, removal from office, and disqualification to
hold and enjoy any office of honor, trust, or profit under the United
States.
Introduction
The House Committee on the Judiciary has completed the
consideration of two articles of impeachment against President
Donald J. Trump. The first article charges that the President
used the powers of his office to solicit and pressure a foreign
government, Ukraine, to investigate his domestic political
rival and interfere in the upcoming United States Presidential
elections. The second article charges that the President
categorically obstructed the Congressional impeachment inquiry
into his conduct. Taken together, the articles charge that
President Trump has placed his personal, political interests
above our national security, our free and fair elections, and
our system of checks and balances. He has engaged in a pattern
of misconduct that will continue if left unchecked.
Accordingly, President Trump should be impeached and removed
from office.
This report proceeds in four parts.
First, it describes the process by which the Committee came
to recommend that the House impeach the President of the United
States. From start to finish, the House conducted its inquiry
with a commitment to transparency, efficiency, and fairness.
The Minority was present and able to participate at every
stage. From September to November of this year, the House
Permanent Select Committee on Intelligence, in coordination
with the Committee on Oversight and Reform and the Committee on
Foreign Affairs, collected evidence related to the charges
against President Trump. The House Permanent Select Committee
on Intelligence held public hearings to develop the evidence
and share it with the American people. The committees then
transmitted their evidence to the Judiciary Committee, together
with a nearly 300-page public report and 123 pages of Minority
views.
Consistent with House precedent, after the evidence arrived
at the Judiciary Committee, the Committee invited President
Trump and his counsel to participate in the process. Notably,
and unlike past Presidents, President Trump declined to attend
any hearings, question any witnesses, or recommend that the
Committee call additional witnesses in his defense.
Second, the report discusses the standard for impeachment
under the Constitution. The Framers were careful students of
history and knew that threats to democracy could take many
forms. Therefore, they adopted a standard for impeachment that
captured a range of misconduct: ``Treason, Bribery, or other
high Crimes and Misdemeanors.'' A clear theme unified these
constitutional wrongs: officials who abused, abandoned, or
sought personal benefit from their public trust--and who
threatened the rule of law if left in power--faced impeachment
and removal. The Framers principally intended ``other high
Crimes and Misdemeanors'' to include three forms of
Presidential wrongdoing: (1) abuse of power, (2) betrayal of
the national interest through foreign entanglements, and (3)
corruption of office and elections. Any one of these violations
of the public trust justifies impeachment. When combined in a
single course of conduct, as is the case here, they state a
powerful case for impeachment and removal from office.
Third, the report examines the facts underlying the first
charge against President Trump: abuse of power. On July 25,
2019, when he spoke by telephone to President Zelensky of
Ukraine, President Trump had the upper hand. President Zelensky
had been recently elected. Ukraine was locked in an existential
battle with Russia, which had invaded and illegally occupied
eastern Ukraine more than five years earlier. The conflict was
continuing and Ukraine needed our help--both in the form of
vital military aid, which had already been appropriated by
Congress because of our security interests in the region, and
also in the form of an Oval Office meeting, to show the world
that the United States continues to stand with our ally in
resisting the aggression of our adversary.
On that July 25 call, President Zelensky expressed
gratitude for past American defense support and indicated that
he was ready to buy more anti-tank weapons from the United
States. In response, President Trump immediately asked
President Zelensky to ``do us a favor, though.'' He asked
Ukraine to announce two bogus investigations: one into former
Vice President Joseph R. Biden, Jr., then his leading opponent
in the 2020 election, and another to advance a conspiracy
theory that Ukraine, not Russia, attacked our elections in
2016. One investigation was designed to help him gain an
advantage in the 2020 election. The other was intended to help
President Trump conceal the truth about the 2016 election.
Neither investigation was supported by the evidence or premised
on any legitimate national security or foreign policy interest.
After the call with President Zelensky, President Trump
ratcheted up the pressure. He continued to dangle the offer of
the Oval Office meeting and to withhold the $391 million in
military aid. The evidence shows that, on the same day that the
call took place, Ukrainian officials became aware that funding
had been withheld. The President also deployed his private
attorney and other agents, some acting outside the official and
regular channels of diplomacy, to make his desires known.
These facts establish impeachable abuse of power. To the
founding generation, abuse of power was a specific, well-
defined offense. It occurs when a President exercises the
powers of his office to obtain an improper personal benefit
while injuring and ignoring the national interest. The evidence
shows that President Trump leveraged his office to solicit and
pressure Ukraine for a personal favor.
This unquestionably constitutes an impeachable offense, but
the first article of impeachment also identifies two
aggravating factors. When President Trump asked President
Zelensky for a favor, he did so at the expense of both our
national security and the integrity of our elections. As to the
first, America has a vital national security interest in
countering Russian aggression, and our strategic partner
Ukraine is quite literally at the front line of resisting that
aggression. When the President weakens a partner who advances
American security interests, the President weakens America. As
to election integrity, American democracy above all rests upon
elections that are free and fair. When the President demands
that a foreign government announce investigations targeting his
domestic political rival, he corrupts our elections. To the
Founders, this kind of corruption was especially pernicious,
and plainly merited impeachment. American elections should be
for Americans only.
Fourth and finally, the report describes the second charge
against President Trump: obstruction of Congress. President
Trump did everything in his power to obstruct the House's
impeachment inquiry. Following his direction not to cooperate
with the inquiry, the White House and other agencies refused to
produce a single document in response to Congressional
subpoenas. President Trump also attempted to muzzle witnesses,
threatening to damage their careers if they agreed to testify,
and even attacked one witness during her live testimony before
Congress. To their great credit, many witnesses from across
government--including from the National Security Council, the
Department of State, and the Department of Defense--ignored the
President's unlawful orders and cooperated with the inquiry. In
the end, however, nine senior officials followed President
Trump's direction and continue to defy duly authorized
Congressional subpoenas. Other Presidents have recognized their
obligation to provide information to Congress under these
circumstances. President Trump's stonewall, by contrast, was
categorical, indiscriminate, and without precedent in American
history.
The Constitution grants the ``sole Power of Impeachment''
to the House of Representatives. Within our system of checks
and balances, the President may not decide what constitutes a
valid impeachment inquiry. Nor may he ignore lawful subpoenas
for evidence and testimony or direct others to do so. If a
President had such authority, he could block Congress from
learning facts bearing upon impeachment in the House or trial
in the Senate and could thus control a power that exists to
restrain his own abuses. The evidence shows clearly that
President Trump has assumed this power for himself and, left
unchecked, the President will continue to obstruct Congress
through unlawful means.
Although the 2020 election is less than a year away,
Congress cannot wait for the next election to address the
President's misconduct. President Trump has fallen into a
pattern of behavior: this is not the first time he has
solicited foreign interference in an election, been exposed,
and attempted to obstruct the resulting investigation. He will
almost certainly continue on this course. Indeed, in the same
week that the Committee considered these articles of
impeachment, the President's private attorney was back in
Ukraine to promote the same sham investigations into the
President's political rivals and, upon returning to the United
States, rapidly made his way to the White House. We cannot rely
on the next election as a remedy for presidential misconduct
when the President is seeking to threaten the very integrity of
that election. We must act immediately.
The Committee now transmits these articles of impeachment
to the full House. By his actions, President Trump betrayed his
office. His high crimes and misdemeanors undermine the
Constitution. His conduct continues to jeopardize our national
security and the integrity of our elections, presenting great
urgency for the House to act. His actions warrant his
impeachment and trial, his removal from office, and his
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States.
The Impeachment Inquiry
I. Introduction
The House of Representatives conducted a fair, thorough,
and transparent impeachment inquiry under extraordinary
circumstances. For the first time in modern history, committees
of the House acted as original factfinders in a Presidential
impeachment. Unlike in the previous impeachment inquiries into
Presidents Richard M. Nixon and William J. Clinton, the House
did not significantly rely on evidence obtained from other
investigative bodies. Rather, committees of the House gathered
evidence themselves. They did so fairly and efficiently,
despite President Trump's concerted efforts to obstruct their
work.
From September through November of this year, the House
Permanent Select Committee on Intelligence (HPSCI), together
with the Committees on Oversight and Reform and Foreign Affairs
(collectively, ``the Investigating Committees''), collected
evidence that President Trump abused his office in soliciting
and inducing foreign interference in the 2020 United States
Presidential election. Despite the President's efforts to
obstruct the Congressional investigation that followed, the
Investigating Committees questioned seventeen current and
former Trump Administration officials. In addition, although
Executive Branch agencies, offices, and officials continue to
defy subpoenas for documents at President Trump's direction,
the Investigating Committees obtained from certain witnesses
hundreds of text messages in their personal possession that
corroborated their testimony, as well as reproductions of
contemporaneous emails exchanged as the President's offenses
were unfolding. Minority Members and their counsel participated
equally in witness questioning, and the Investigating
Committees released public transcripts of every deposition and
interview, as well as significant documentary evidence upon
which they relied. HPSCI then transmitted that evidence to the
Judiciary Committee, together with a nearly 300-page public
report documenting the Investigating Committees' findings, and
a 123-page report containing the Minority's views.
The Judiciary Committee, consistent with House precedent,
afforded ample opportunities for President Trump and his
attorneys to participate as it considered articles of
impeachment. Those opportunities were offered not as a matter
of right, but as privileges typically afforded to Presidents
pursuant to House practice. Article I of the Constitution vests
the House with full discretion to structure impeachment
proceedings, assigning to it both the ``sole Power of
Impeachment'' and the authority to ``determine the Rules of its
Proceedings.''\1\ The purpose of such proceedings is not to
conduct a full trial of offenses; it is ``to gather evidence to
determine whether the president may have committed an
impeachable offense'' and whether he ought to stand trial for
that offense in the Senate.\2\ In accordance with that purpose
and House practice, President Trump was offered procedural
privileges that were equivalent to or exceeded those afforded
to Presidents Nixon and Clinton.
---------------------------------------------------------------------------
\1\U.S. Const. art. I, Sec. 2, cl. 5; Sec. 5, cl. 2.
\2\Directing Certain Committees to Continue Their Ongoing
Investigations as Part of the Existing House of Representatives Inquiry
Into Whether Sufficient Grounds Exist for the House of Representatives
to Exercise its Constitutional Power to Impeach Donald John Trump,
President of the United States of America, and for Other Purposes, H.
Rep. No. 116-266 at 4 (2019) (hereinafter ``Rules Committee Report'');
see also Staff of H. Comm. on the Judiciary, 116th Cong.,
Constitutional Grounds for Presidential Impeachment 39 (Comm. Print
2019) (hereinafter ``Constitutional Grounds for Impeachment (2019)'').
---------------------------------------------------------------------------
II. Background: Conduct of the House's Inquiry and Privileges Afforded
to President Trump
A. PROCEEDINGS LEADING TO ADOPTION OF HOUSE RESOLUTION 660
In early 2019, the Judiciary Committee began investigating
potential abuses of office by President Trump, including
obstruction of law enforcement investigations relating to
Russia's interference in the 2016 United States Presidential
election.\3\ That investigation, which came to include
consideration of whether to recommend articles of impeachment,
was conducted in full public view and through public hearings.
To the extent the Committee reviewed or obtained materials that
it did not make available to the public, it did so in order to
accommodate specific requests by the Executive Branch. The
Committee also obtained responses to written questions from one
fact witness and made those responses available to the
public;\4\ and it conducted one closed-door transcribed
interview of a fact witness during which White House attorneys
were present, then released a transcript of the interview the
following day.\5\ During this period, HPSCI also continued to
investigate foreign intelligence and counterintelligence risks
arising from efforts by Russia and other foreign powers to
influence the United States political process during and since
the 2016 election.\6\
---------------------------------------------------------------------------
\3\See, e.g., Resolution Recommending that the House of
Representatives Find William P. Barr, Attorney General, U.S. Department
of Justice, in Contempt of Congress for Refusal to Comply with a
Subpoena Duly Issued by the Committee on the Judiciary, H. Rep. No.
116-105, at 13 (June 6, 2019).
\4\See Responses by Ann Donaldson to Questions from the Committee
on the Judiciary of the U.S. House of Representatives (July 5, 2019).
\5\See Interview of Hope Hicks Before the H. Comm. on the
Judiciary, 116th Cong. (June 19, 2019).
\6\See App. of the Comm. on the Judiciary at 14 n.8, In re App. of
the Comm. on the Judiciary, U.S. House of Reps., for an Order
Authorizing the Release of Certain Grand Jury Materials,--F. Supp. 3d--
, 2019 WL 5485221 (D.D.C. Oct. 25, 2019) (hereinafter ``In re Rule 6(e)
Application''), appeal pending, No. 19-5288 (D.C. Cir.). In addition,
in August 2019, Chairman Nadler requested that the chairs of five other
committees investigating potential misconduct by President Trump share
any materials with the Judiciary Committee that would be relevant to
its consideration of impeachment. Letter from Jerrold Nadler, Chairman,
H. Comm. on the Judiciary, to Adam Schiff, Chairman, H. Perm. Select
Comm. on Intelligence, Maxine Waters, Chairwoman, H. Comm. on Financial
Services, Elijah E. Cummings, Chairman, H. Comm. on Oversight and
Reform, and Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs (Aug.
22, 2019).
---------------------------------------------------------------------------
Beginning in the spring and summer of 2019, evidence came
to light that President Trump and his associates might have
been seeking the assistance of another foreign government,
Ukraine, to influence the upcoming 2020 election.\7\ On
September 9, 2019, the Investigating Committees announced they
were launching a joint investigation and requested documents
and records from the White House and the Department of State.
In parallel, evidence emerged that the President may have
attempted to cover up his actions and prevent the transmission
of information to which HPSCI was entitled by law.\8\ Given the
gravity of these allegations and the immediacy of the threat to
the next Presidential election, Speaker Nancy P. Pelosi
announced on September 24, 2019 that the House would proceed
with ``an official impeachment inquiry,'' under which the
Investigating Committees, the Judiciary Committee, and the
Committees on Financial Services and Ways and Means would
continue their investigations of Presidential misconduct.\9\
---------------------------------------------------------------------------
\7\See Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push
for Inquiries That Could Help Trump, N.Y. Times, May 9, 2019.
\8\See, e.g., Letter from Adam B. Schiff, Chairman, H. Perm. Select
Comm. on Intelligence, to Joseph Maguire, Acting Dir. of Nat'l
Intelligence (Sept. 10, 2019).
\9\Press Release, Pelosi Remarks Announcing Impeachment Inquiry
(Sept. 24, 2019).
---------------------------------------------------------------------------
Following that announcement, the Investigating Committees
issued additional requests and subpoenas for witness interviews
and depositions and for documents in the possession of the
Executive Branch.\10\ The three committees ``made clear that
this information would be `collected as part of the House's
impeachment inquiry and shared among the Committees, as well as
with the Committee on the Judiciary as appropriate.'''\11\
However, as detailed further in the portion of this Report
discussing obstruction of Congress, White House Counsel Pat A.
Cipollone sent a letter on October 8, 2019 to Speaker Pelosi
and Chairmen Adam B. Schiff, Eliot L. Engel, and Elijah E.
Cummings stating that ``President Trump and his Administration
cannot participate in your partisan and unconstitutional
inquiry.''\12\ As a result, the Administration refused--and
continues to refuse--to produce any documents subpoenaed by the
Investigating Committees as part of the impeachment inquiry,
and nine current or former Administration officials remain in
defiance of subpoenas for their testimony.\13\
---------------------------------------------------------------------------
\10\See The Trump-Ukraine Impeachment Inquiry Report: Report for
the H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in
Consultation with the H. Comm. on Oversight and Reform and the H. Comm.
on Foreign Affairs at 208, 116th Cong. (2019) (hereinafter ``Ukraine
Report'').
\11\Id. (quoting Letter from Chairman Elijah E. Cummings, Chairman,
H. Comm. on Oversight and Reform, Adam B. Schiff, Chairman, H. Perm.
Select Comm. on Intelligence, and Eliot L. Engel, H. Comm. on Foreign
Affairs, to Mick Mulvaney, Acting Chief of Staff, The White House (Oct.
4, 2019)).
\12\Letter from Pat A. Cipollone, Counsel to the President, to
Nancy Pelosi, Speaker of the House, Adam B. Schiff, Chairman, H. Perm.
Select Comm. on Intelligence, Eliot L. Engel, Chairman, H. Comm. on
Foreign Affairs, and Elijah E. Cummings, Chairman, H. Comm. on
Oversight and Reform (Oct. 8, 2019) (hereinafter ``Oct. 8 Cipollone
Letter'').
\13\Ukraine Report at 30-31. Ten witnesses defied subpoenas for
testimony, but the Investigating Committees subsequently withdrew their
subpoena to one of the officials. Id. at 236.
---------------------------------------------------------------------------
Nevertheless, many other current and former officials
complied with their legal obligations to appear for testimony,
and the Investigating Committees conducted depositions or
transcribed interviews of seventeen witnesses.\14\ These
depositions and interviews were conducted consistent with the
Rules of the House and with longstanding procedures governing
investigations by HPSCI and the other committees.\15\ Members
of the Minority previously advocated expanding these
authorities, explaining that ``[t]he ability to interview
witnesses in private allows committees to gather information
confidentially and in more depth than is possible under the
five-minute rule governing committee hearings. This ability is
often critical to conducting an effective and thorough
investigation.''\16\
---------------------------------------------------------------------------
\14\Depositions of four of the witnesses postdated the House's
approval of H. Res. 660 on October 31.
\15\Rules governing the use of deposition authorities were issued
at the beginning of the current Congress, just as they have been during
previous Congresses. See H. Res. 6 Sec. 103(a), 116th Cong. (2019)
(providing authority for chairs of standing committees and chair of
HPSCI to order the taking of depositions); Regulations for Use of
Deposition Authority, 165 Cong. Rec. H1216-17 (daily ed. Jan. 25, 2019)
(setting forth regulations pursuant to this provision).
\16\Final Report of the H. Select Comm. on the Events Surrounding
the 2012 Terrorist Attack in Benghazi, H. Rep. No. 114-848 at 404-05
(2016) (footnote omitted).
---------------------------------------------------------------------------
All Members of the Investigating Committees were permitted
to attend these depositions and interviews, along with Majority
and Minority staff. Members and counsel for both the Majority
and Minority were permitted equal time for questioning
witnesses. Transcripts of all depositions and interviews were
publicly released and made available through HPSCI's website on
a rolling basis, subject to minimal redactions to protect
classified or sensitive information.
B. HOUSE RESOLUTION 660 AND SUBSEQUENT PROCEEDINGS
On October 31, 2019, the House voted to approve H. Res.
660, which directed the Judiciary Committee as well as HPSCI
and the Committees on Oversight and Reform, Foreign Affairs,
Financial Services, and Ways and Means to ``continue their
ongoing investigations as part of the existing . . . inquiry
into whether sufficient grounds exist for the House of
Representatives to exercise its Constitutional power to impeach
Donald John Trump.''\17\ As the accompanying report by the
Committee on Rules explained, HPSCI, in coordination with the
Committees on Oversight and Reform and Foreign Affairs, was
conducting an investigation that focused on three interrelated
questions:
---------------------------------------------------------------------------
\17\H. Res. 660, 116th Cong. (2019).
1. Did the President request that a foreign leader
and government initiate investigations to benefit the
President's personal political interests in the United
States, including an investigation related to the
President's political rival and potential opponent in
the 2020 U.S. presidential election?
2. Did the President--directly or through agents--
seek to use the power of the Office of the President
and other instruments of the federal government in
other ways to apply pressure on the head of state and
government of Ukraine to advance the President's
personal political interests, including by leveraging
an Oval Office meeting desired by the President of
Ukraine or by withholding U.S. military assistance to
Ukraine?
3. Did the President and his Administration seek to
obstruct, suppress or cover up information to conceal
from the Congress and the American people evidence
about the President's actions and conduct?\18\
---------------------------------------------------------------------------
\18\Rules Committee Report at 2.
The report explained that although a full House vote was by
no means legally necessary, H. Res. 660 ``provides a further
framework for the House's ongoing impeachment inquiry.''\19\
That framework would be ``commensurate with the inquiry process
followed in the cases of President Nixon and President
Clinton''--during which the House undertook various
investigatory steps before voting to authorize and structure
proceedings for an impeachment inquiry.\20\
---------------------------------------------------------------------------
\19\Id. at 7.
\20\Id.
---------------------------------------------------------------------------
One significant difference, however, was that in this
instance the House was conducting and would continue to conduct
its own factfinding and collection of evidence through its
investigative committees. As HPSCI has explained, ``[u]nlike in
the cases of Presidents Nixon and Clinton, the House conducted
a significant portion of the factual investigation itself
because no independent prosecutor was appointed to investigate
President Trump's conduct.''\21\ Nevertheless, H. Res. 660 set
forth detailed procedures that resulted in maximal transparency
during the ongoing factfinding stage of the investigation and
provided numerous privileges for President Trump and his
counsel. The procedures entailed two stages for the public-
facing phase of the impeachment inquiry: the first before HPSCI
and the second before the Judiciary Committee.
---------------------------------------------------------------------------
\21\Ukraine Report at 212-13.
---------------------------------------------------------------------------
First, HPSCI was authorized to conduct open hearings during
which the Chairman and Ranking Member had extended equal time
to question witnesses or permit their counsels to do so.\22\
The Ranking Member was also permitted to identify and request
witnesses and to issue subpoenas for documents and witness
testimony with the concurrence of the Chairman, with the option
to refer subpoena requests for a vote before the full Committee
if the Chairman declined to concur.\23\ H. Res. 660 further
directed HPSCI to issue a report describing its findings and to
make that report available to the public, and to transmit that
report along with any supplemental materials and Minority views
to the Judiciary Committee.\24\
---------------------------------------------------------------------------
\22\H. Res. 660 Sec. 2(2).
\23\Id. Sec. 2(4). In addition, the House's standing rules entitle
committees of the House to issue subpoenas and to delegate subpoena
authority to Committee chairs. See House Rule XI.2(m).
\24\H. Res. 660 Sec. 2(6).
---------------------------------------------------------------------------
Pursuant to H. Res. 660, HPSCI held five days of public
hearings during which twelve current or former Trump
Administration officials testified. These witnesses spoke in
extensive detail about President Trump's repeated and prolonged
efforts to pressure Ukraine into announcing and conducting
baseless investigations into the President's political rival
and into a discredited conspiracy theory that Ukraine, not
Russia, interfered in the 2016 election. They also testified
regarding United States policy interests regarding Ukraine, the
value and strategic importance of the military and security
assistance and the diplomatic visit to the White House that the
President withheld from Ukraine, and the actions taken by
individuals on the President's behalf in aid of his misconduct.
In addition, the Investigating Committees received from certain
witnesses hundreds of text messages as well as contemporaneous
emails corroborating their testimony. The majority of witnesses
maintained, however, that because they were government
employees their documents and communications remained the
property of Executive Branch offices and agencies. These
offices and agencies, based on the President's direction,
instructed officials not to provide any materials pursuant to
the Investigating Committees' subpoenas.
Three of the witnesses who testified during the public
hearings--Ambassador Kurt D. Volker, Undersecretary of State
David M. Hale, and former National Security Council official
Timothy A. Morrison--did so at the request of the Minority. As
Chairman Schiff explained, however, the impeachment inquiry
would not be permitted to serve as a means for conducting ``the
same sham investigations . . . that President Trump pressed
Ukraine to conduct for his personal political benefit.''\25\
Chairman Schiff likewise made clear that he would not
``facilitate efforts by President Trump and his allies in
Congress to threaten, intimidate, and retaliate against the
whistleblower who courageously raised the initial alarm.''\26\
---------------------------------------------------------------------------
\25\Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, to Devin Nunes, Ranking Member, H. Perm. Select Comm. on
Intelligence (Nov. 9, 2019).
\26\Id.
---------------------------------------------------------------------------
HPSCI's public hearings concluded on November 21, 2019. On
December 3, 2019, in consultation with the Committees on
Oversight and Reform and Foreign Affairs, HPSCI released and
voted to adopt a report of nearly 300 pages detailing its
extensive findings about the President's abuse of his office
and obstruction of Congress. Chairman Schiff noted that
although the investigation would continue, ``[t]he evidence of
the President's misconduct is overwhelming,'' and the need to
submit an impeachment referral was too urgent to delay.\27\ On
December 6, 2019, and pursuant to H. Res. 660, the
Investigating Committees transmitted a final version of that
report, together with a report documenting the Minority's views
and evidence upon which the report relied, to the Judiciary
Committee.\28\ The Committees on the Budget and Foreign Affairs
transmitted certain materials to the Judiciary Committee as
well.\29\ In addition, HPSCI subsequently made a classified
supplemental submission provided by one of its witnesses
available for Judiciary Committee Members to review in a secure
facility.\30\
---------------------------------------------------------------------------
\27\Ukraine Report at 9 (preface from Chairman Schiff).
\28\Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, Carolyn B. Maloney, Chairwoman, H. Comm. on Oversight and
Reform, and Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs, to
Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019); see
H. Res. 660 Sec. Sec. 2(6), 3.
\29\Letter from John Yarmuth, Chairman, H. Comm. on the Budget, to
Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019);
Letter from Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs, to
Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019).
\30\See Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm.
on Intelligence, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary
(Dec. 11, 2019).
---------------------------------------------------------------------------
With respect to proceedings before the Judiciary Committee,
pursuant to H. Res. 660, the Rules Committee established
``Impeachment Inquiry Procedures in the Committee on the
Judiciary'' that provided a host of procedural privileges for
President Trump.\31\ Those procedures required that President
Trump's counsel be furnished with copies of all materials
transferred to the Judiciary Committee by HPSCI and the other
committees investigating the President's misconduct.\32\ They
afforded President Trump numerous opportunities to participate
in the Judiciary Committee's proceedings through counsel. Those
opportunities included the ability to present evidence orally
or in writing; to question committee counsels presenting
evidence; to attend all hearings of the Judiciary Committee,
including those held in executive session; to raise objections
during examinations of witnesses; to cross-examine any witness
called before the Committee; and to request that additional
witnesses be called.\33\ In addition, as was the case for
HPSCI, H. Res. 660 permitted the Ranking Member of the
Judiciary Committee to issue subpoenas for documents and
witness testimony with the concurrence of the Chairman, or to
refer any such decision for a vote by the full Committee.\34\
---------------------------------------------------------------------------
\31\Impeachment Inquiry Procedures in the Committee on the
Judiciary, submitted for printing in the Congressional Record, 165
Cong. Rec. E1357 (daily ed. October 29, 2019) (hereinafter
``Impeachment Inquiry Procedures'').
\32\Accordingly, after receiving these materials from the
Investigating Committees, the Judiciary Committee transmitted them to
the President on December 8, 2019, with limited exceptions for
materials containing sensitive information. The Committee has made the
materials containing sensitive information available for the
President's counsel's review in a secure facility. See Letter from
Jerrold Nadler, Chairman, H. Comm. on the Judiciary, to Pat A.
Cipollone, Counsel to the President (Dec. 8, 2019).
\33\Impeachment Inquiry Procedures at (A)(3), (B)(2)-(3), (C)(1)-
(2), (4).
\34\H. Res. 660 Sec. 4(c)(2).
---------------------------------------------------------------------------
On November 26, 2019, Chairman Nadler wrote to President
Trump informing him of these procedures and the Committee's
intention to hold a hearing the following week, on December 4,
regarding constitutional grounds for impeachment. Chairman
Nadler explained the purpose of the hearing and requested that
President Trump indicate whether he and his counsel wished to
participate and question the witness panel.\35\ On November 29,
2019, Chairman Nadler wrote to President Trump further
requesting that his counsel indicate whether he planned to
participate in any of the Committee's upcoming proceedings and,
if so, which privileges his counsel would seek to exercise.\36\
On December 1, 2019, Mr. Cipollone responded that counsel for
the President would not participate in the December 4 hearing,
characterizing that process as ``an after-the-fact
constitutional law seminar.''\37\ On December 6, 2019, Mr.
Cipollone sent Chairman Nadler another letter indicating the
President would not avail himself of any other opportunities to
participate in the Committee's proceedings, urging the
Committee to ``end this inquiry now and not waste even more
time with additional hearings.''\38\ Mr. Cipollone quoted
President Trump's recent statement that ``if you are going to
impeach me, do it now, fast, so we can have a fair trial in the
Senate.''\39\
---------------------------------------------------------------------------
\35\Letter from Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, to Donald J. Trump, President of the United States (Nov. 26,
2019).
\36\Letter from Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, to Donald J. Trump, President of the United States (Nov. 29,
2019).
\37\Letter from Pat A. Cipollone, Counsel to the President, to
Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 1, 2019).
\38\Letter from Pat A. Cipollone, Counsel to the President, to
Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019).
\39\Id.
---------------------------------------------------------------------------
On December 4, 2019, the Judiciary Committee held its
public hearing on Constitutional Grounds for Presidential
Impeachment and heard testimony from four constitutional
experts, including one called by the Minority.\40\ Consistent
with the Judiciary Committee's proceedings during the
impeachment of President Clinton, these experts discussed the
kinds of conduct that amounts to ``high Crimes and
Misdemeanors''' under the Constitution and whether the
President's conduct met that standard.\41\ The Chairman and
Ranking Member were allotted equal periods of extended time for
questioning, along with Majority and Minority counsel. On
December 7, 2019, the Committee Majority staff released its
report on this topic, outlining the grounds for impeachment as
contemplated by the Founders and addressing certain arguments
raised by the President.\42\ The Minority staff published its
own views as well, including the written testimony of its
witness during the December 4 hearing.\43\
---------------------------------------------------------------------------
\40\The Impeachment Inquiry Into President Donald J. Trump:
Constitutional Grounds for Presidential Impeachment Before the H. Comm.
on the Judiciary, 116th Cong. (Dec. 4, 2019) (hereafter
``Constitutional Grounds Hearing (2019)''). This ratio of one Minority
witness for every three Majority witnesses is consistent with other
hearings conducted in the Judiciary Committee and in other committees.
\41\Cf. Background and History of Impeachment: Hearing Before the
Subcomm. on the Constitution, H. Comm. on the Judiciary, 105th Cong.
(1998).
\42\See Constitutional Grounds for Impeachment (2019).
\43\See id. at 53 (Minority Views).
---------------------------------------------------------------------------
On December 9, 2019, in accordance with the ``Impeachment
Inquiry Procedures''' promulgated pursuant to H. Res. 660, the
Judiciary Committee conducted another public hearing to
evaluate the evidence gathered by HPSCI.\44\ Majority and
Minority counsel for the Judiciary Committee presented opening
statements, followed by presentations of the evidence from
Majority and Minority counsel for HPSCI. The Chairman and
Ranking Member were again allotted equal periods of extended
time for questioning, with the ability to yield time for
questioning by Majority and Minority counsels. The Majority
counsel for HPSCI presented HPSCI's findings in detail and was
subject to extensive questioning throughout the hearing's nine-
hour duration. Minority counsel for HPSCI presented the
Minority's views and was subject to questioning as well.
---------------------------------------------------------------------------
\44\The Impeachment Inquiry Into President Donald J. Trump:
Presentations from H. Perm. Select Comm. on Intelligence and H. Comm.
on the Judiciary, 116th Cong. (Dec. 9, 2019) (hereinafter
``Presentation of Evidence Hearing (2019)'').
---------------------------------------------------------------------------
On December 10, 2019, Chairman Nadler introduced a
resolution containing two articles of impeachment against
President Trump for abuse of office and obstruction of
Congress.\45\ The Committee began debate the following evening
and resumed debate throughout the day of December 12. On
December 13, 2019, the Committee voted to report both articles
of impeachment favorably to the House.
---------------------------------------------------------------------------
\45\H. Res. 755, 116th Cong. (2019).
---------------------------------------------------------------------------
III. The House's Inquiry Was Fully Authorized by House Rules and
Precedent
The House's conduct of its impeachment inquiry--through
which Committees of the House began investigating facts prior
to a formal vote by the House--was fully consistent with the
Constitution, the Rules of the House, and House precedent. The
House's autonomy to structure its own proceedings for an
impeachment inquiry is rooted in two provisions of Article I of
the Constitution. First, Article I vests the House with the
``sole Power of Impeachment.''\46\ It contains no other
requirements as to how the House must carry out that
responsibility. Second, Article I further states that the House
is empowered to ``determine the Rules of its Proceedings.''\47\
Taken together, these provisions give the House sole discretion
to determine the manner in which it will investigate,
deliberate, and vote upon grounds for impeachment.
---------------------------------------------------------------------------
\46\U.S. Const. art I, Sec. 2, cl. 5.
\47\U.S. Const. art. I, Sec. 5, cl. 2.
---------------------------------------------------------------------------
The Rules of the House do not prescribe any particular
manner in which the House or any of its committees must conduct
impeachment inquiries. Although the Judiciary Committee has
traditionally been ``responsible for considering and
potentially recommending articles of impeachment to the full
House,''\48\ it is not the exclusive factfinding body through
which all evidence bearing on impeachment must be collected. To
the contrary, as discussed further below, in the last two
modern Presidential impeachments the Judiciary Committee relied
on evidence obtained through prosecutors, grand juries, and (in
the case of President Nixon) a committee of the Senate. In
addition, the House Rules provide HPSCI and the standing
committees with robust investigative authorities, including the
power to issue subpoenas and take depositions.\49\ Each of the
three committees indisputably has oversight jurisdiction to
investigate these matters.\50\
---------------------------------------------------------------------------
\48\Rules Committee Report at 7.
\49\House Rule XI.2(m); H. Res. 6 Sec. 102(a).
\50\See House Rule X.1(i)(1), (10) (Committee on Foreign Affairs
has jurisdiction regarding ``[r]elations of the United States with
foreign nations generally'' and ``[d]iplomatic service''); House Rule
X.3(i), X.4(c)(2) (Committee on Oversight and Reform ``shall review and
study on a continuing basis the operation of Government activities at
all levels, including the Executive Office of the President,'' and
``may at any time conduct investigations of any matter'' before other
committees of the House); House Rule X.11(b)(1)(B) (HPSCI has
jurisdiction regarding ``[i]ntelligence and intelligence-related
activities'' of all ``departments and agencies of the government'').
---------------------------------------------------------------------------
Throughout 2019, HPSCI continued to investigate Russia's
interference in the 2016 election as well as ongoing efforts by
Russia and other adversaries to interfere in upcoming
elections. As allegations emerged that President Trump and his
personal attorney, Rudolph Giuliani, were acting to solicit and
pressure Ukraine to launch politically motivated
investigations, the Investigating Committees announced publicly
on September 9, 2019, that they were conducting a joint
investigation of the President's conduct toward Ukraine.\51\
---------------------------------------------------------------------------
\51\Press Release, Three House Committees Launch Wide-Ranging
Investigations into Trump-Giuliani Ukraine Scheme (Sept. 9, 2019).
---------------------------------------------------------------------------
The principal objection by the President has consisted of a
claim that no committee of the House was permitted to
investigate Presidential misconduct for impeachment purposes
unless or until the House enacted a resolution fully
``authorizing'' the impeachment inquiry.\52\ That claim has no
basis in the Constitution, any statutes, the House Rules, or
House precedent. As already noted, the Constitution says
nothing whatsoever about any processes or prerequisites
governing the House's exercise of its ``sole Power of
Impeachment.'' To the contrary, the Constitution's Impeachment
and Rulemaking Clauses indicate that it is only for the House
itself to structure its impeachment investigations and
proceedings. Yet the House Rules do not preclude committees
from inquiring into potential grounds for impeachment. As a
federal district court recently confirmed, the notion that a
full House vote is required to authorize an impeachment inquiry
``has no textual support in the U.S. Constitution [or] the
governing rules of the House.''\53\
---------------------------------------------------------------------------
\52\See Oct. 8 Cipollone Letter.
\53\In re Rule 6(e) Application, 2019 WL 5485221, at *26.
---------------------------------------------------------------------------
Furthermore, House precedent makes manifestly clear that
the House need not adopt a resolution authorizing or
structuring an impeachment inquiry before such an inquiry can
proceed. As Jefferson's Manual notes, ``[i]n the House various
events have been credited with setting an impeachment in
motion,'' including charges made on the floor, resolutions
introduced by members, or ``facts developed and reported by an
investigating committee of the House.''\54\ As Chief Judge
Howell explained, the House has ``[i]ndisputably initiated
impeachment inquiries of federal judges without a House
resolution `authorizing' the inquiry.''\55\ One such inquiry
involved a lengthy investigation of a sitting Supreme Court
Justice.\56\ Indeed, several ``federal judges have been
impeached by the House without a House resolution `authorizing'
an inquiry.''\57\ For example, the Judiciary Committee
investigated grounds for the impeachment of Judge Walter Nixon
following a referral by the United States Judicial Conference
and the introduction of a resolution for his impeachment.\58\
The Committee--without any direct authorization or instruction
from the full House--subsequently adopted articles of
impeachment, which were approved by a vote of the full House.
The Senate later voted to convict Judge Nixon and remove him
from office.\59\ Similar proceedings occurred in impeachments
of two other judges.\60\ Indeed, as recently as the 114th
Congress, the Judiciary Committee considered impeachment of the
Commissioner of the Internal Revenue Service following a
referral from another committee and absent a full vote of the
House for an impeachment inquiry.\61\
---------------------------------------------------------------------------
\54\Constitution, Jefferson's Manual, Rules of the House of
Representatives of the United States, H. Doc. No. 115-177 Sec. 603
(2019 ed.) (hereinafter ``Jefferson's Manual'').
\55\In re Rule 6(e) Application, 2019 WL 5485221 at *26 (providing
four examples).
\56\Id. (citing 3 Deschler's Precedents of the United States House
of Representatives ch. 14 Sec. 5 (1994) (hereinafter ``Deschler'').
\57\In re Rule 6(e) Application, 2019 WL 5485221 at *26 (emphasis
in original).
\58\Report of the Committee on the Judiciary, Impeachment of Walter
L. Nixon, Jr., H. Rep. No. 101-36, at 13-16 (1989).
\59\See Nixon v. United States, 506 U.S. 224, 227-28 (1993).
\60\See In re Rule 6(e) Application, 2019 WL 5485221 at *26.
\61\See Examining the Allegations of Misconduct Against IRS
Commissioner John Koskinen (Part I): Hearing Before the H. Comm. on the
Judiciary, 114th Cong. 3 (2016) (statement by Rep. Darrell Issa
describing the hearing as ``an inquiry into the recommendation of
impeachment'' made by another committee).
---------------------------------------------------------------------------
In addition, in many prior instances in which the full
House adopted resolutions authorizing and directing the
Judiciary Committee to undertake impeachment inquiries, the
resolutions served in part to provide the Committee with
authorities it did not already have. For example, the 1974
resolution authorizing and directing the impeachment inquiry
into President Nixon served to clarify the scope of the
Committee's subpoena authority and authorized the Committee and
its counsel to take depositions.\62\ Today, the House Rules for
standing committees and for HPSCI already provide these
authorities.\63\ Thus, as a practical matter, a full vote of
the House is no longer needed to provide investigating
committees with the kinds of authorities needed to conduct
their investigations. Here, of course, the House did ultimately
adopt H. Res. 660, which explicitly directed HPSCI and the
Committees on the Judiciary, Oversight and Reform, Foreign
Affairs, Financial Services, and Ways and Means to ``continue
their ongoing investigations''' as part of the House's
``existing'' impeachment inquiry. Although the House was not
obligated to enact such a resolution, H. Res. 660 affirmed the
authority of the House and these committees to continue their
investigations and provided further structure to govern the
inquiry moving forward.
---------------------------------------------------------------------------
\62\H. Res. 803 Sec. 2(a)(1); see 3 Deschler ch. 14 Sec. 6.2.
\63\See H. Res 6, 116th Cong. Sec. 103(a), (2019); Jefferson's
Manual Sec. 805 (describing gradual expansion of these authorities).
---------------------------------------------------------------------------
This sequence of events in the House's impeachment inquiry
into President Trump bears substantial resemblance to the
development of the House's impeachment inquiry into President
Nixon. The Judiciary Committee's consideration of impeachment
resolutions against President Nixon began in October 1973, when
various resolutions calling for President Nixon's impeachment
were introduced in the House and referred to the Judiciary
Committee.\64\ Over the next several months, the Committee
investigated the Watergate break-in and coverup (among other
matters) using its existing investigatory authorities.\65\ The
Committee also hired a special counsel and other attorneys to
assist in these efforts, and the House adopted a resolution in
November 1973 to fund the Committee's investigations.\66\ As
the Committee explained in a February 1974 staff report, its
work up through that time included forming multiple task forces
within the staff to gather evidence organized around various
subjects of interest.\67\ All of this occurred before the House
approved a resolution directing the Judiciary Committee to
investigate whether sufficient grounds existed to impeach
President Nixon.\68\
---------------------------------------------------------------------------
\64\3 Deschler ch. 14 Sec. 15.1.
\65\See id. ch. 14 Sec. 15.2 (Parliamentarian's Note); Report of
the H. Comm. on the Judiciary, Impeachment of Richard M. Nixon,
President of the United States, H. Rep. No. 93-1305 at 6 (1974)
(hereinafter ``Committee Report on Nixon Articles of Impeachment
(1974)'').
\66\Committee Report on Nixon Articles of Impeachment (1974) at 6.
\67\Work of the Impeachment Inquiry Staff As of February 5, 1974:
Report by the Staff of the H. Comm. on the Judiciary at 2-3, 93d Cong.
(1974) (hereinafter ``February 5, 1974 Progress Report'').
\68\H. Res. 803 Sec. 1, 93d Cong. (1974).
---------------------------------------------------------------------------
So too here, committees of the House began investigating
allegations of misconduct by President Trump before the House
voted to approve H. Res. 660. That course of events is
consistent not only with the House's impeachment inquiry
against President Nixon but with common sense. After all,
before voting to conduct an impeachment inquiry, the House must
have some means of ascertaining the nature and seriousness of
the allegations and the scope of the inquiry that may follow.
It defies logic to suggest that House committees have no
authority to begin examining the President's potentially
impeachable misconduct unless or until the full House votes to
conduct an impeachment inquiry.
IV. President Trump Received Ample Procedural Protections
A. GENERAL PRINCIPLES
As Chairman Rodino observed during this Committee's
impeachment proceedings against President Nixon, ``it is not a
right but a privilege or a courtesy'' for the President to
participate through counsel in House impeachment
proceedings.\69\ An impeachment inquiry is not a trial; rather,
it entails a collection and evaluation of facts before a trial
occurs in the Senate. In that respect, the House acts
analogously to a grand jury or prosecutor, investigating and
considering the evidence to determine whether charges are
warranted. Federal grand juries and prosecutors, of course,
conduct their investigations in secret and afford little or no
procedural rights to targets of investigations.\70\ This type
of confidentiality is necessary to (among other things) ensure
freedom in deliberations, ``prevent subornation of perjury or
tampering with the witnesses who may testify,'' and ``encourage
free and untrammeled disclosures by persons who have [relevant]
information.''\71\
---------------------------------------------------------------------------
\69\Impeachment Inquiry: Hearings Before the H. Comm. on the
Judiciary, 93d Cong. 497 (1974) (hereinafter ``Nixon Impeachment
Hearings'').
\70\See Fed. R. Crim. P. 6(e).
\71\United States v. Procter & Gamble Co., 356 U.S. 677, 681 n.6
(1958).
---------------------------------------------------------------------------
Nonetheless, in light of the gravity of the decision to
impeach the President and the ramifications that such a
decision has for the Nation as a whole, the House has typically
provided a level of transparency in impeachment inquiries and
has afforded the President certain procedural privileges.
Although President Trump has at times invoked the notion of
``due process,'' ``an impeachment inquiry is not a criminal
trial and should not be confused with one.''\72\ Rather, the
task of the House--as part of the responsible exercise of its
``sole Power of Impeachment''--is to adopt procedures that
balance the need to protect the integrity of its
investigations, the public interest in a full and fair inquiry,
and the President's interest in telling his side of the story.
---------------------------------------------------------------------------
\72\Rules Committee Report at 8.
---------------------------------------------------------------------------
As discussed below, in past impeachment inquiries this has
typically meant that the principal evidence relied upon by the
Judiciary Committee is disclosed to the President and to the
public--though some evidence in past proceedings has remained
confidential. The President has also typically been afforded an
opportunity to participate in the proceedings at a stage when
evidence has been fully gathered and is presented to the
Judiciary Committee. In addition, the President has been
entitled to present his own evidence and to request that
witnesses be called. He has not, however, been entitled to have
counsel present during all interviews of witnesses. The
procedures employed by the House here were tailored to these
considerations and provided ample protections for President
Trump.
B. PROCESSES USED IN MODERN PRESIDENTIAL IMPEACHMENTS
The processes used in the House's impeachment inquiries
into Presidents Nixon and Clinton shared certain common
features that informed the House's consideration of how to
structure its proceedings with respect to President Trump. In
both the Nixon and Clinton impeachments, the House relied
substantially on factual evidence collected through prior
investigations. These prior investigations did not afford the
President any particular procedural rights, such as the
opportunity to cross-examine witnesses, and many portions were
conducted outside public view. At a later stage, when evidence
was formally presented to the Judiciary Committee, the
President's counsel was permitted to attend, present evidence
and call witnesses, and cross-examine witnesses before the
Committee.
1. President Nixon
Impeachment proceedings in the House against President
Nixon were conducted almost entirely behind closed doors, with
the President's counsel afforded certain procedural privileges
in later stages of the inquiry. As noted above, the Judiciary
Committee began considering impeachment resolutions against
President Nixon in October 1973, including by examining
evidence in the public domain obtained from other
investigations.\73\ On February 6, 1974, the House adopted H.
Res. 803, which authorized and directed the Committee to
investigate ``whether sufficient grounds exist for the House of
Representatives to exercise its constitutional power to impeach
Richard M. Nixon.''\74\ H. Res. 803 gave the Committee
authority to subpoena documents and witnesses, to take
depositions, and to issue interrogatories. This authority could
be exercised by the Chairman or the Ranking Member, with each
having the right to refer disagreements to the full
Committee.\75\ The Committee subsequently adopted procedures
imposing tight restrictions on access to materials gathered
during the course of its investigation, restricting access to
the Chairman, the Ranking Member, and authorized staff.\76\ In
February and March 1974, the Committee met three times in
closed executive sessions--without President Nixon's counsel in
attendance--to hear updates from Committee staff.\77\ In
addition to reviewing information produced in other
investigations, Committee staff conducted private interviews of
fact witnesses.\78\
---------------------------------------------------------------------------
\73\February 5, 1974 Progress Report at 2.
\74\H. Res. 803 Sec. 1, 93d Cong. (1974).
\75\Id. Sec. 2(b)(1).
\76\Procedures for Handling Impeachment Inquiry Material: H. Comm.
on the Judiciary, 93d Cong. (Comm. Print 1974); see Committee Report on
Nixon Articles of Impeachment (1974) at 8.
\77\Nixon Impeachment Hearings at 53-78 (Feb. 5, 1974 briefing by
staff); id. at 79-100 (Feb. 14, 1974 briefing by staff); id. at 131-59
(Mar. 5, 1974 briefing by staff).
\78\See id. at 96, 105, 206.
---------------------------------------------------------------------------
Much of the evidence relied upon by the Committee and
gathered by staff was obtained through other investigations,
including the investigation by the Senate Select Committee on
Presidential Campaign Activities. Indeed, the Senate Select
Committee's televised hearings are what typically come to mind
when one thinks of Congress's investigation of Watergate. The
Senate, of course, does not conduct impeachment inquiries; its
constitutional function is ``to try all Impeachments'' if an
officer of the United States is impeached by the House.\79\ The
Senate Select Committee was instead established pursuant to the
Senate's general oversight and legislative authorities.\80\ In
the spring of 1973--before those televised hearings occurred--
Select Committee staff interviewed hundreds of witnesses in
informal private settings or closed-door executive sessions of
the Committee.\81\ The Select Committee also met in numerous
executive sessions to receive progress updates from staff.\82\
Only later, beginning in May 1973 and lasting through the
summer, did the Select Committee call witnesses to testify in
public hearings.\83\ Those hearings were not impeachment
proceedings, President Nixon was not afforded any procedural
privileges, such as the right to have counsel present and to
question witnesses.
---------------------------------------------------------------------------
\79\U.S. Const. art. I, Sec. 3, cl. 6.
\80\See Final Report of the S. Select Comm. on Presidential
Campaign Activities, S. Rep. No. 93-981, xxiii-xxiv (1974) (hereinafter
``Senate Select Committee Report'').
\81\Id. at xxx.
\82\Id. at xviii.
\83\Id. at xxix.
---------------------------------------------------------------------------
On February 7, 1974--the day after the House adopted its
resolution directing an impeachment inquiry--the Senate Select
Committee voted to transmit all of its files, including
voluminous non-public files, to the House Judiciary
Committee.\84\ The Judiciary Committee relied on those non-
public materials as it gathered evidence. For example, a March
1, 1974 progress report by Judiciary Committee staff noted that
its ``basic sources'' included ``the closed files of the
[Senate Select Committee], including executive session
testimony.''\85\ In March 1974, the Judiciary Committee also
famously received the Watergate grand jury's ``roadmap''
describing evidence of potential offenses committed by
President Nixon.\86\ That report--which was not disclosed to
the public until nearly 45 years later--described and appended
evidence gathered through months of secret grand jury
proceedings, during which counsel for defendants were not
permitted to appear or question witnesses.
---------------------------------------------------------------------------
\84\Nixon Impeachment Hearings at 95; see also Senate Select
Committee Report at xxx.
\85\Work of the Impeachment Inquiry Staff as of March 1, 1974 at 4,
93d Cong. (Comm. Print 1974).
\86\See Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974).
---------------------------------------------------------------------------
In the course of the Judiciary Committee's investigation,
Committee staff also conducted interviews of witnesses in
private settings in which no counsel for President Nixon was
present. During a closed-door briefing in February 1974,
Special Counsel John A. Doar made clear to members that counsel
for the Minority would not necessarily be present for all
interviews either, depending upon the circumstances.\87\ In an
effort to develop appropriate procedures governing the inquiry,
Committee staff reviewed in detail the proceedings used in
prior impeachment inquiries dating back to the eighteenth
century. In a memorandum describing their findings, Committee
staff noted they had found ``[n]o record . . . of any
impeachment inquiry in which the official under investigation
participated in the investigation stage preceding commencement
of Committee hearings.''\88\ Nor had Committee staff found any
instance in which ``the official underinvestigation . . . was
granted access to the Committee's evidence before it was
offered at a hearing.''\89\
---------------------------------------------------------------------------
\87\Nixon Impeachment Hearings at 96.
\88\Impeachment Inquiry Staff, H. Comm. on the Judiciary,
Memorandum: Presentation Procedures for the Impeachment Inquiry at 11,
93d Cong. (Apr. 3, 1974).
\89\Id. at 18.
---------------------------------------------------------------------------
Later in the spring and early summer of 1974, the Committee
held a series of closed-door meetings for formal presentations
of evidence by Committee counsel. As relevant here, the
procedures it adopted for those presentations allowed the
President's counsel to attend strictly as an observer, to be
provided with evidence as it was presented, and to present
evidence orally or in writing afterward.\90\ It was only in the
final stages of the Judiciary Committee's inquiry--in late June
and July 1974--that President Nixon's counsel was permitted to
present evidence and to call and question witnesses.\91\ These
proceedings also occurred in closed executive sessions of the
Committee, as did the questioning of additional witnesses
called by the Committee.\92\ In total, the Committee heard
testimony from nine witnesses in these closed-door hearings,
with the transcripts made available to the public
afterward.\93\ The sole public portions of the Committee's
proceedings in which it considered the evidence were several
days of debate between members about whether to recommend
articles of impeachment.\94\ The Committee ultimately voted on
July 27, July 29, and July 30, 1974 to adopt three articles of
impeachment,\95\ and President Nixon resigned from office
shortly afterward.
---------------------------------------------------------------------------
\90\See Nixon Impeachment Hearings App. VI, ``Impeachment Inquiry
Procedures''; e.g., id. at 1189 (Chairman prohibited President Nixon's
counsel from introducing a response to Committee's presentations at
this stage).
\91\Committee Report on Nixon Articles of Impeachment (1974) at 9.
\92\See Nixon Impeachment Hearings at 1719-1866 (presentations by
President Nixon's counsel); id. at 1867-79 (voting to conduct witness
testimony in executive session).
\93\See generally Testimony of Witnesses: Hearings Before the H.
Comm. on the Judiciary, 93d Cong. (1974).
\94\Committee Report on Nixon Articles of Impeachment (1974) at 9-
10.
\95\Id. at 10.
---------------------------------------------------------------------------
2. President Clinton
The Judiciary Committee's impeachment inquiry concerning
President Clinton occurred over a relatively brief period in
late 1998 and relied almost entirely upon evidence collected by
Independent Counsel Kenneth W. Starr. On September 9, 1998,
Independent Counsel Starr notified the Speaker and Minority
Leader of the House that his office had transmitted an
impeachment referral and 36 sealed boxes of evidence to the
Sergeant-at-Arms.\96\ Two days later, the House approved H.
Res. 525, requiring the Committee to review these materials and
determine whether to recommend that the House proceed with an
impeachment inquiry.\97\ H. Res. 525 further directed that
Independent Counsel Starr's report be published as a House
document and called for all supporting documents and evidence
to be released in the coming weeks, unless determined otherwise
by the Committee.\98\ Many of those materials, including grand
jury materials, were released publicly on September 18 and 28,
1998; some, however, were withheld from the public and the
President.\99\
---------------------------------------------------------------------------
\96\See Impeachment of William J. Clinton, President of the United
States: Report of the H. Comm. on the Judiciary, H. Rep. No. 105-830,
at 123 (hereinafter ``Committee Report on Clinton Articles of
Impeachment (1998)''). Independent Counsel Starr submitted this
referral pursuant to 28 U.S.C. Sec. 595(c), a provision of the now-
expired Independent Counsel Act that required independent counsels to
``advise the House of Representatives of any substantial and credible
information . . . that may constitute grounds for an impeachment.'' See
id. at 123-24.
\97\Committee Report on Clinton Articles of Impeachment (1998) at
125; see H. Res. 525, 105th Cong. (1998).
\98\H. Res. 525 Sec. 2, 105th Cong. (1998).
\99\Committee Report on Clinton Articles of Impeachment (1998) at
125-26.
---------------------------------------------------------------------------
On October 8, 1998, the House adopted H. Res. 581, which
authorized and directed the Judiciary Committee to investigate
``whether sufficient grounds exist for the House of
Representatives to exercise its constitutional power to impeach
William Jefferson Clinton.''\100\ H. Res. 581 contained express
authorization for the Committee to subpoena documents and
witnesses and to issue interrogatories. As with the resolution
governing the Nixon impeachment inquiry, H. Res. 581 specified
that this authority could be exercised by the Chairman or
Ranking Member, with each having the right to refer
disagreements to the full Committee.\101\
---------------------------------------------------------------------------
\100\H. Res. 581, 105th Cong. (1974).
\101\Id. Sec. Sec. 2(b).
---------------------------------------------------------------------------
The Committee's proceedings unfolded rapidly afterward. As
in the Nixon impeachment proceedings, the Committee relied
substantially during its investigation of President Clinton on
evidence gathered from a prior investigation--that conducted by
Independent Counsel Starr. Committee staff also conducted a
limited number of depositions during which counsel for
President Clinton was not present; additionally, Committee
Majority staff conducted interviews which neither Minority
staff nor counsel for the President attended. On two occasions
in October and November 1998, White House attorneys wrote to
Chairman Hyde and Committee Majority counsel expressing concern
about their lack of an opportunity to participate in these
depositions and interviews.\102\ Majority counsel for the
Committee responded by pointing to the Nixon-era staff
memorandum as proof that counsel for the President has no right
to attend depositions or interviews of witnesses. The
President's contrary view, Committee counsel stated, was ``on
the wrong side of history.''\103\
---------------------------------------------------------------------------
\102\Letter from Charles F.C. Ruff, Counsel to the President,
Gregory B. Craig, Special Counsel to the President, and David E.
Kendall, Special Counsel to the President, to Henry Hyde, Chairman, H.
Comm. on the Judiciary (Oct. 23, 1998); Letter from Charles F.C. Ruff,
Counsel to the President, to Thomas E. Mooney, Chief of Staff--General
Counsel, H. Comm. on the Judiciary, and David P. Schippers, Chief
Investigative Counsel, H. Comm. on the Judiciary (Nov. 20, 1998).
\103\Letter from Thomas E. Mooney, Chief of Staff--General Counsel,
H. Comm. on the Judiciary, and David P. Schippers, Chief Investigative
Counsel, H. Comm. on the Judiciary, to Charles F.C. Ruff, Counsel to
the President, Gregory B. Craig, Special Counsel to the President, and
David E. Kendall, Special Counsel to the President, at 2-3 (Nov. 9,
1998) (hereinafter ``Mooney Letter'').
---------------------------------------------------------------------------
On November 19, 1998, Independent Counsel Starr testified
in a public hearing before the Committee. He was the sole
witness who presented factual evidence before the Committee,
and his testimony consisted primarily of descriptions of
evidence his office had gathered in the course of its
investigation.\104\ That evidence included tens of thousands of
pages of grand jury testimony,\105\ which by definition was
taken in secret and without the opportunity for adversarial
questioning. In addition, in November and December 1998, the
Subcommittee on the Constitution and the full Committee,
respectively, held open hearings on the background and history
of impeachment and on the offense of perjury.\106\ Finally, on
December 8 and 9, 1998, President Clinton's legal counsel
called multiple panels of outside legal experts and elicited
testimony primarily on whether the President's alleged conduct
rose to the level of impeachable offenses.\107\
---------------------------------------------------------------------------
\104\See generally Impeachment Inquiry: William Jefferson Clinton,
President of the United States: Hearing Before the H. Comm. on the
Judiciary, 105th Cong. (Nov. 19, 1998) (hereinafter ``Starr Hearing'').
President Clinton's counsel was permitted to question Independent
Counsel Starr following questioning by Committee counsel and Members.
Id. at 170-89.
\105\See Committee Report on Clinton Articles of Impeachment (1998)
at 200 (Minority Views); see also Starr Hearing at 170.
\106\See Background and History of Impeachment: Hearing Before the
H. Comm. on the Judiciary, Subcomm. on the Constitution, 105th Cong.
(Nov. 9, 1998); The Consequences of Perjury and Related Crimes: Hearing
Before the H. Comm. on the Judiciary, 105th Cong. (Dec. 1, 1998).
\107\Impeachment Inquiry: William Jefferson Clinton, President of
the United States: Presentation on Behalf of the President: Hearing
Before the H. Comm. on the Judiciary, 105th Cong. (1998). President
Clinton's counsel also called White House Counsel Charles F.C. Ruff to
testify. Id. at 405-58.
---------------------------------------------------------------------------
Between December 10 to 12, 1998, the Committee debated and
voted to adopt four articles of impeachment.\108\ The following
week, the articles were debated on the floor of the House over
the course of two days. On December 19, 1998, the House voted
to approve two of the articles and voted against two
others.\109\ Shortly after that vote, Ranking Member Conyers
wrote to Chairman Hyde expressing concerns that Majority staff
had conducted witness interviews without informing the Minority
and provided summaries of those interviews to certain members
while withholding them from the Minority. Chairman Conyers also
raised concerns that members of the Majority had encouraged
Members whose votes were still undecided to review certain
evidence that had been withheld from the President and the
public in an effort to sway those Members' decision-
making.\110\
---------------------------------------------------------------------------
\108\Committee Report on Clinton Articles of Impeachment (1998) at
128.
\109\144 Cong. Rec. 28, 110-12 (1998).
\110\Letter from John Conyers, Jr., Ranking Member, H. Comm. on the
Judiciary, to Henry J. Hyde, Chairman, H. Comm. on the Judiciary (Dec.
22, 1998).
---------------------------------------------------------------------------
C. THE PROCEDURAL PROTECTIONS AFFORDED TO PRESIDENT TRUMP MET OR
EXCEEDED THOSE AFFORDED IN PAST PRESIDENTIAL IMPEACHMENT INQUIRIES
The House's impeachment inquiry provided President Trump
procedural protections that were consistent with or in some
instances exceeded those afforded to Presidents Nixon and
Clinton. The House's inquiry was conducted with maximal
transparency: transcripts of all interviews and depositions
were made public, and HPSCI and the Judiciary Committee held
seven days of public hearings. All documentary evidence relied
on in HPSCI's report has been made available to President
Trump, and much of it has been made public. Furthermore, during
proceedings before the Judiciary Committee, President Trump was
offered numerous opportunities to have his counsel participate,
including by cross-examining witnesses and presenting evidence.
The President's decision to reject these opportunities to
participate affirms that his principal objective was to
obstruct the House's inquiry rather than assist in its full
consideration of all relevant evidence.
1. The House's Inquiry Was Conducted With Maximal Transparency
The House's impeachment inquiry against President Trump was
unique in its lack of reliance on the work of another
investigative body. Instead, the Investigating Committees
performed their own extensive investigative work--and they did
so with abundant transparency. Twelve key witnesses critical to
the Committees' investigation testified in publicly televised
hearings. All transcripts for each of the seventeen witnesses
interviewed or deposed have been made public and posted on
HPSCI's website, subject to minimal redactions to protect
classified or sensitive information. All documentary evidence
relied on in HPSCI's report has been made available to the
President and to the Judiciary Committee, and significant
portions have been released to the public as well.
Those facts alone render this inquiry more transparent than
those against Presidents Nixon and Clinton. As noted
previously, during the House's impeachment inquiry into
President Nixon, not a single evidentiary hearing took place in
public. And although transcripts of closed-door witness
hearings were subsequently released, notes or transcripts from
private witness interviews were not. In addition, the Judiciary
Committee relied on voluminous evidence that was obtained
through other investigations, including investigations by
prosecutors, a grand jury, and the Senate Select Committee. The
Judiciary Committee amassed a collection of files from those
investigations and maintained them under strict confidentiality
procedures. With respect to President Clinton, the Judiciary
Committee's impeachment inquiry was based almost solely upon
evidence transmitted by Independent Counsel Starr. That
evidence was collected in secret grand jury proceedings or
through other law enforcement mechanisms. Even after the
evidence was transmitted to the Judiciary Committee, not all of
it was disclosed publicly. Furthermore, Committee staff
conducted non-public depositions and interviews.
As the Majority counsel for HPSCI explained in his
presentation to the Judiciary Committee, conducting witness
interviews in a manner that does not allow witnesses to ``line
up their stories''' is a ``[b]est investigative
practice.''\111\ Closed-door depositions in the present inquiry
were necessary during earlier stages of the investigation to
prevent witnesses from reviewing one another's testimony and
tailoring their statements accordingly.\112\ Indeed, the
Judiciary Committee is unaware of any factfinding process--
whether in criminal investigations or administrative
proceedings--in which all witnesses are interviewed in full
view of each other and of the person under investigation.
Nevertheless, HPSCI released transcripts of the depositions it
conducted on a rolling basis within weeks of their occurrence.
In addition, the Judiciary Committee's proceedings were
conducted in full public view.
---------------------------------------------------------------------------
\111\The Impeachment Inquiry into President Donald J. Trump:
Presentations from the House Permanent Select Committee on Intelligence
and House Judiciary Committee: Hearing Before the H. Comm. on the
Judiciary, 116th Cong. (2019) (testimony by Daniel Goldman).
\112\Id.
---------------------------------------------------------------------------
2. The President Was Afforded Meaningful Opportunities to Participate
At the investigative stage before HPSCI and the Committees
on Oversight and Reform and Foreign Affairs, President Trump
made concerted efforts to ensure that his closest advisors
would not be heard from, including by ordering an across-the-
board blockade of the House's inquiry and by directing multiple
White House and other Executive Branch officials not to appear.
Nonetheless, President Trump was offered--but declined--
numerous opportunities to participate in the House's
proceedings when they reached the Judiciary Committee.
Pursuant to the ``Impeachment Inquiry Procedures in the
Committee on the Judiciary'' described above, the President was
given the opportunity to: have counsel attend any presentations
of evidence before the Committee; have counsel ask questions
during those presentations; respond orally or in writing to any
evidence presented; request that additional witnesses be
called; have counsel attend all other hearings in which
witnesses were called; have counsel raise objections during
those hearings; have counsel question any such witnesses; and
have counsel provide a concluding presentation. For example,
President Trump's counsel could have questioned counsel for
HPSCI during his detailed presentation of evidence at the
Committee's December 9 hearing. The President's counsel could
also have questioned any of the four legal scholars who
appeared during the Committee's December 4 hearing. The
President could have submitted a statement in writing
explaining his account of events--or he could have had his
counsel make a presentation of evidence or request that other
witnesses be called. President Trump did none of those things.
These privileges were equivalent to or exceeded those
afforded to Presidents Nixon and Clinton. As noted previously,
the Judiciary Committee conducted numerous closed-door
briefings and took substantial investigative steps before
affording any opportunities for President Nixon's counsel to
participate, including conducting private interviews of
witnesses. In addition, when President Nixon's counsel was
later granted permission to attend closed-door presentations of
evidence by Committee counsel, he could do so only as a passive
observer. President Trump, by contrast, could have had his
attorney cross-examine HPSCI's counsel during his presentation
of evidence. That opportunity was also equivalent to the
opportunity afforded to President Clinton to have his counsel
cross-examine Independent Counsel Starr--which he did, at
length.\113\
---------------------------------------------------------------------------
\113\Starr Hearing at 170-89.
---------------------------------------------------------------------------
Furthermore, although President Trump has complained that
his counsel was not afforded the opportunity to participate
during HPSCI's proceedings, the proceedings against Presidents
Nixon and Clinton demonstrate that in neither case was the
President permitted to have counsel participate in the initial
fact-gathering stages of the impeachment inquiry. As Committee
staff explained during the Nixon impeachment inquiry--and then
reiterated during the Clinton impeachment inquiry--there were
no records from any prior impeachment inquiry of an ``official
under investigation participat[ing] in the investigation stage
preceding commencement of committee hearings''' or being
offered access to Committee evidence ``before it was offered at
a hearing.''\114\ That is doubly true for the investigative
proceedings that took place before the House began its
impeachment inquiries against Presidents Nixon and Clinton.
President Nixon certainly had no attorney present when
prosecutors and grand juries began collecting evidence about
Watergate and related matters, nor did he have an attorney
present when the Senate Select Committee began interviewing
witnesses and holding public hearings. Nor did President
Clinton have an attorney present when prosecutors from the
Office of Independent Counsel Kenneth Starr deposed witnesses
and elicited their testimony before a grand jury.
---------------------------------------------------------------------------
\114\Mooney Letter at 3 (quoting Memorandum from Impeachment
Inquiry Staff at 11, H. Comm. on the Judiciary (Apr. 3, 1974));
Memorandum from Impeachment Inquiry Staff, H. Comm. on the Judiciary at
18 (Apr. 3, 1974).
---------------------------------------------------------------------------
Indeed, the proceedings before the Investigating Committees
can be most closely analogized to the Senate Select Committee
proceedings during Watergate. In both instances, Congressional
bodies other than the House Judiciary Committee engaged in
fact-finding investigations of grave Presidential misconduct.
Those investigations included private interviews and
depositions followed by public hearings--after which all
investigative files were provided to the House Judiciary
Committee. The only difference is that in this case,
transcripts of all interviews and depositions have been made
public; all documentary evidence relied on by HPSCI in its
report has been made available to the President; and the
President's counsel could have participated and raised
questions during presentations of evidence but chose not to.
3. The President Was Not Entitled to Additional Procedural Rights
White House Counsel Pat A. Cipollone suggested in his
October 8 letter on behalf of President Trump that the
President was entitled to a host of additional due process
rights during the House's impeachment inquiry, 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.''\115\ He also indicated
that the President was entitled to review all favorable
evidence and all evidence bearing on the credibility of
witnesses.\116\
---------------------------------------------------------------------------
\115\Oct. 8 Cipollone Letter.
\116\Id.
---------------------------------------------------------------------------
These are the types of procedural protections, however,
typically afforded in criminal trials--not during preliminary
investigative stages.\117\ As HPSCI explained in its report,
``there is no requirement that the House provide these
procedures during an impeachment inquiry.''\118\ Rather, as
Chairman Rodino stated during the Nixon impeachment inquiry,
the President's participation ``is not a right but a privilege
or a courtesy.''\119\
---------------------------------------------------------------------------
\117\Cf., e.g., United States v. Calandra, 414 U.S. 338, 350 (1974)
(rejecting procedural protections that would ``saddle a grand jury with
minitrials and . . . assuredly impede its investigation'').
\118\Ukraine Report at 212.
\119\Nixon Impeachment Hearings at 497.
---------------------------------------------------------------------------
In any event, the core privileges described in Mr.
Cipollone's letter were in fact offered to President Trump as
courtesies during the Judiciary Committee's proceedings. The
President was able to review ``all evidence'' relied on by the
Investigating Committees, including evidence that the
Minority's public report identified as favorable to him. During
the Judiciary Committee's proceedings, the President had
opportunities to present evidence, call witnesses, have counsel
present to raise objections and cross-examine witnesses, and
respond to the evidence raised against him. As the Rules
Committee report accompanying H. Res. 660 noted, these
privileges are ``commensurate with the inquiry process followed
in the cases of President Nixon and President Clinton.''\120\
President Trump simply chose not to avail himself of the
procedural opportunities afforded to him.
---------------------------------------------------------------------------
\120\Rules Committee Report at 7.
---------------------------------------------------------------------------
D. THE MINORITY WAS AFFORDED FULL AND ADEQUATE PROCEDURAL RIGHTS
Members of the Minority have also contended that they were
not afforded the full procedural rights provided to the
Minority in prior impeachment inquiries and have raised a host
of related objections to the proceedings. These claims lack
merit.
First, the Minority has contended that it was deprived of
the ability to subpoena witnesses and documentary evidence.
However, the rules governing both the Nixon and Clinton
impeachment inquiries rendered the Minority's subpoena
authority equally contingent on the Majority. Under H. Res. 803
(governing the Nixon proceedings) and H. Res. 581 (governing
the Clinton proceedings), the Chairman could refer a subpoena
request by the Ranking Member for a vote by the full Committee
if the Chairman disagreed with such a request.\121\ So too
here, H. Res. 660 authorized the Ranking Member to issue
subpoenas with the Chairman's concurrence, or to refer such
requests for a vote by the full Committee if the Chairman
declined to concur.\122\
---------------------------------------------------------------------------
\121\H. Res. 803 Sec. 2(b), 93d Cong. (1974); H. Res. 581
Sec. 2(b), 105th Cong. (1998).
\122\H. Res. 660 Sec. 4(c). The only distinction is that H. Res.
660 did not reciprocally allow the Ranking Member to refer subpoena
requests by the Chairman for a full Committee vote. But that is because
contemporary House Rules already permit the Judiciary Committee and
other committees to delegate their subpoena authority to their chairs.
House Rule XI.2(m)(3)(A)(i). It makes little sense to suggest that the
subpoena authority of the Chairman of the Judiciary Committee should be
reduced during an impeachment inquiry.
---------------------------------------------------------------------------
Second, the Minority has contended that the Committee
should have heard testimony from additional witnesses they
requested, including the whistleblower, various individuals
with whom the whistleblower spoke, and even Chairman
Schiff.\123\ As an initial matter, during HPSCI's proceedings,
the Minority called three witnesses of its choosing--Ambassador
Volker, Undersecretary Hale, and Mr. Morrison. Ambassador
Volker and Mr. Morrison testified on their own panel at length;
and their testimony only served to corroborate other witnesses'
accounts of the President's misconduct.\124\ As to proceedings
before the Judiciary Committee, the Minority called a witness
of its choosing to present views during the Committee's
December 4 hearing on Constitutional Grounds for Presidential
Impeachment. Furthermore, Minority counsel had equal time to
present arguments and evidence during the Committee's December
9 hearing. However, as Chairman Schiff stated and as Chairman
Nadler reiterated, Congress has an imperative interest in
protecting whistleblowers. And in this particular instance,
Congress has an especially critical need to prevent the House's
impeachment inquiry from being used to ``facilitate the
President's effort to threaten, intimidate, and retaliate
against the whistleblower,'' which placed his or her personal
safety at grave risk.\125\ Furthermore, the whistleblower's
allegations were not relied upon by HPSCI or the Judiciary
Committee in reaching their conclusions, making his or her
testimony ``redundant and unnecessary.''\126\ Rather, HPSCI
adduced independent and more direct evidence.\127\
---------------------------------------------------------------------------
\123\See Letter from Doug Collins, Ranking Member, H. Comm. on the
Judiciary, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec.
6, 2019).
\124\Impeachment Inquiry: Ambassador Kurt Volker and Timothy
Morrison: Hearing Before the H. Perm. Select Comm. on Intelligence,
116th Cong. (2019); see, e.g., Ukraine Report at 123 (Ambassador Volker
testified that Department of Justice did not make an official request
for Ukraine's assistance in law enforcement investigations).
\125\Letter from Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, to Doug Collins, Ranking Member, H. Comm. on the Judiciary
(Dec. 9, 2019).
\126\Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, to Devin Nunes, Ranking Member, H. Perm. Select Comm. on
Intelligence (Nov. 9, 2019).
\127\Id.
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In addition, the Ranking Member and all other Committee
Members had the full opportunity to question HPSCI's lead
investigative counsel during the Committee's December 9
hearing. Presentation of evidence by Committee counsel is
consistent with the procedures followed during the Nixon
impeachment inquiry--and in no impeachment inquiry has the
House relied upon evidentiary presentations from another
Member. Finally, the Ranking Member's request to hear testimony
from other witnesses such as Hunter Biden was well outside the
scope of the impeachment inquiry and would have allowed the
President and his allies in Congress to propagate exactly the
same kinds of misinformation that President Trump corruptly
pressured Ukraine to propagate for his own political benefit.
Such witnesses were entirely irrelevant to the question of
whether President Trump abused his power for his personal gain.
Third, the Minority requested that it be entitled to a day
of hearings pursuant to House Rule XI.2(j)(1), which entitles
the Minority, upon request, to call witnesses to testify
regarding any ``measure or matter'' considered in a committee
hearing ``during at least one day of hearing thereon.'' The
Minority requested a hearing day on the subject of
constitutional grounds for impeachment, as discussed at the
Committee's December 4 hearing. However, as Chairman Nadler
explained in ruling against the Ranking Member's point of
order, this Rule does not require the Chairman ``to schedule a
hearing on a particular day,'' nor is the Chairman required
``to schedule the hearing as a condition precedent to taking
any specific legislative action.''\128\ Indeed, a report
accompanying this provision when it was first promulgated
stated that its purpose was not ``an authorization for delaying
tactics.''\129\ Chairman Nadler further explained that the
Minority had been afforded the opportunity to have its views
represented through its witness during the December 4 hearing,
who testified at length. Additionally, the Chairman said he was
willing to work with the Minority to schedule a Minority day
for a hearing at an appropriate time.\130\
---------------------------------------------------------------------------
\128\H. Res. 755, Articles of Impeachment Against President Donald
J. Trump: Markup Before H. Comm. on the Judiciary, 116th Cong. (Dec.
11, 2019) (ruling on point of order by Chairman Nadler) (hereinafter
``H. Res. 755 Markup'').
\129\Legislative Reorganization Act of 1970, H. Rep. No. 91-1215,
at 6 (1970).
\130\H. Res. 755 Markup (ruling on point of order by Chairman
Nadler).
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Fourth, the Minority has contended that the proceedings
before the Judiciary Committee were inadequate because the
Committee did not hear from ``fact witnesses.'' The evidence in
the House's impeachment inquiry consists of more than one
hundred hours of deposition or interview testimony by seventeen
witnesses, followed by five days of live televised hearings
with twelve fact witnesses.\131\ At bottom, the Minority's
objection instead amounts to a claim that fact hearings do not
count unless they occur before this Committee. That notion is
inconsistent with both the Nixon and Clinton impeachment
inquiries, in which the Judiciary Committee relied on, inter
alia, public and private testimony before the Senate Select
Committee in the case of President Nixon, and transcripts of
grand jury proceedings in the case of President Clinton. In
this instance, HPSCI and the Committees on Oversight and Reform
and Foreign Affairs conducted their witness examinations ably
and transparently, working within their subject matter areas of
expertise. Furthermore, to the extent Judiciary Committee
members wished to probe the evidentiary record, they had
opportunities to do so when HPSCI's Majority and Minority
counsels presented evidence before the Committee.
---------------------------------------------------------------------------
\131\Ukraine Report at 7.
---------------------------------------------------------------------------
Finally, the Minority has repeatedly suggested that the
House's impeachment inquiry has been rushed. The House's
investigation of the President's conduct regarding Ukraine
began in early September and has proceeded for more than three
months. In addition, that investigation followed extensive
investigations into the President's having welcomed foreign
assistance from Russia during the 2016 United States
Presidential election and then obstructing the law enforcement
investigation that ensued. President Trump's efforts to enlist
the assistance of another foreign government for the 2020
United States Presidential election therefore raised immediate
alarm and required prompt action. As HPSCI's report states,
``[w]ith this backdrop, the solicitation of new foreign
intervention was the act of a president unbound.''\132\
---------------------------------------------------------------------------
\132\Id. at 10.
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The House's investigation of President Trump's misconduct--
which occupied a time frame commensurate with that for the
impeachment inquiry against President Clinton--was fair and
thorough. The Investigating Committees assembled a
comprehensive record that was more than sufficient to provide
them with a thorough picture of the facts. To the extent gaps
remained, they resulted from President Trump's obstruction of
Congress. The urgency posed by the President's abuse of his
office, his invitation of foreign interference in the 2020
United States Presidential election, and his disregard for any
mechanisms of accountability required concerted action by the
House, not further delay.
V. Conclusion
The House conducted a thorough and fair inquiry regarding
President Trump's misconduct, notwithstanding the unique and
extraordinary challenges posed by the President's obstruction.
The Investigating Committees amassed thorough and irrefutable
evidence that the President abused his office by pressuring a
foreign government to interfere in the next election. When
committees of the House--rather than a grand jury, a Senate
committee, or an Independent Counsel--must serve as primary
investigators in an impeachment inquiry, they have an
obligation to balance investigative needs and best practices
for collecting evidence with the President's interest in
telling his story and the public interest in transparency. But
that does not entitle the President to inject himself at each
and every stage of the proceedings, thus confounding the
House's inquiry.
Here, consistent with historical practice, the House
divided its impeachment inquiry into two phases, first
collecting evidence and then bringing that evidence before the
Judiciary Committee for its consideration of articles of
impeachment. The Judiciary Committee then evaluated the
evidence in a process that afforded President Trump the same or
more privileges of his predecessors who have faced impeachment
inquiries. The President's refusal to comply with or
participate in these proceedings only confirmed his intent to
obstruct Congress in the performance of its essential
constitutional functions.
Constitutional Grounds for Presidential Impeachment
I. Introduction
Our President holds the ultimate public trust. He is vested
with powers so great that they frightened the Framers of our
Constitution; in exchange, he swears an oath to faithfully
execute the laws that hold those powers in check. This oath is
no formality. The Framers foresaw that a faithless President
could destroy their experiment in democracy. As George Mason
warned at the Constitutional Convention, held in Philadelphia
in 1787, ``if we do not provide against corruption, our
government will soon be at an end.''\133\ Mason evoked a well-
known historical truth: when corrupt motives take root, they
drive an endless thirst for power and contempt for checks and
balances. It is then only the smallest of steps toward acts of
oppression and assaults on free and fair elections. A President
faithful only to himself--who will sell out democracy and
national security for his own personal advantage--is a danger
to every American. Indeed, he threatens America itself.
---------------------------------------------------------------------------
\133\1 Max Farrand, ed., The Records of the Federal Convention of
1787, 392 (1911) (hereinafter, ``Records of the Federal Convention'').
---------------------------------------------------------------------------
Impeachment is the Constitution's final answer to a
President who mistakes himself for a monarch. Aware that power
corrupts, our Framers built other guardrails against that
error. The Constitution thus separates governmental powers,
imposes an oath of faithful execution, prohibits profiting from
office, and guarantees accountability through regular
elections. But the Framers were not naa ve. They knew, and
feared, that someday a corrupt executive might claim he could
do anything he wanted as President. Determined to protect our
democracy, the Framers built a safety valve into the
Constitution: A President can be removed from office if the
House of Representatives approves articles of impeachment
charging him with ``Treason, Bribery, or other high Crimes and
Misdemeanors,'' and if two-thirds of the Senate votes to find
the President guilty of such misconduct after a trial.\134\
---------------------------------------------------------------------------
\134\U.S. Const. art. II, Sec. 4; id. art. I, Sec. 5, cl. 5; id.
art. I, Sec. 3, cl. 6.
---------------------------------------------------------------------------
As Justice Joseph Story recognized, ``the power of
impeachment is not one expected in any government to be in
constant or frequent exercise.''\135\ When faced with credible
evidence of extraordinary wrongdoing, however, it is incumbent
on the House to investigate and determine whether impeachment
is warranted. On October 31, 2019, the House approved H. Res.
660, which, among other things, confirmed the preexisting
inquiry ``into whether sufficient grounds exist for the House
of Representatives to exercise its Constitutional power to
impeach Donald John Trump, President of the United States of
America.''\136\
---------------------------------------------------------------------------
\135\2 Joseph Story, Commentaries on the Constitution of the United
States, 221 (1833).
\136\H. Res. 660, 116th Cong. (2019).
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The Judiciary Committee now faces questions of
extraordinary importance. In prior impeachment inquiries
addressing allegations of Presidential misconduct, the staff of
the Judiciary Committee has prepared reports addressing
relevant principles of constitutional law.\137\ Consistent with
that practice, and to assist the Committee and the House in
working toward a resolution of the questions before them, the
majority staff prepared the following report to explore the
meaning of the words in the Constitution's Impeachment Clause:
``Treason, Bribery, or other high Crimes and Misdemeanors.''
The report also describes the impeachment process and addresses
several mistaken claims about impeachment that have recently
drawn public notice.
---------------------------------------------------------------------------
\137\Staff of H. Comm. on the Judiciary, Constitutional Grounds for
Presidential Impeachment 93d Cong.,4 (Comm. Print 1974) (hereinafter
``Staff Report on Constitutional Grounds for Presidential Impeachment
(1974)''); Staff of H. Comm. on the Judiciary, Constitutional Grounds
for Presidential Impeachment: Modern Precedents, 105th Cong. (Comm.
Print 1998) (hereinafter ``Staff Report on Constitutional Grounds for
Presidential Impeachment: Modern Precedents (1998)'').
---------------------------------------------------------------------------
II. Summary of Principal Conclusions
Our principal conclusions are as follows.
The purpose of impeachment. As the Framers deliberated in
Philadelphia, Mason posed a profound question: ``Shall any man
be above justice?''\138\ By authorizing Congress to remove
Presidents for egregious misconduct, the Framers offered a
resounding answer. As Mason elaborated, ``some mode of
displacing an unfit magistrate is rendered indispensable by the
fallibility of those who choose, as well as by the
corruptibility of the man chosen.''\139\ Unlike Britain's
monarch, the President would answer personally--to Congress and
thus to the Nation--if he engaged in serious wrongdoing.
Alexander Hamilton explained that the President would have no
more resemblance to the British king than to ``the Grand
Seignior, to the khan of Tartary, [or] to the Man of the Seven
Mountains.''\140\ Whereas ``the person of the king of Great
Britain is sacred and inviolable,'' the President of the United
States could be ``impeached, tried, and upon conviction . . .
removed from office.''\141\ Critically, though, impeachment
goes no further. It results only in loss of political power.
This speaks to the nature of impeachment: it exists not to
inflict punishment for past wrongdoing, but rather to save the
Nation from misconduct that endangers democracy and the rule of
law. Thus, the ultimate question in an impeachment is whether
leaving the President in our highest office imperils the
Constitution.\142\
---------------------------------------------------------------------------
\138\2 Farrand, Records of the Federal Convention at 65.
\139\1 Farrand, Records of the Federal Convention at 86.
\140\Alexander Hamilton, Federalist No. 69, 444 (Benjamin Fletcher
Wright ed., 2004).
\141\Id.
\142\See Laurence H. Tribe, American Constitutional Law 155 (3d ed.
2000).
---------------------------------------------------------------------------
Impeachable offenses. The Framers were careful students of
history and knew that threats to democracy can take many forms.
They feared would-be monarchs, but also warned against fake
populists, charismatic demagogues, and corrupt kleptocrats. The
Framers thus intended impeachment to reach the full spectrum of
Presidential misconduct that menaced the Constitution. Because
they could not anticipate and prohibit every threat a President
might someday pose, the Framers adopted a standard sufficiently
general and flexible to meet unknown future circumstances:
``Treason, Bribery, or other high Crimes and Misdemeanors.''
This standard was proposed by Mason and was meant, in his
words, to capture all manner of ``great and dangerous
offenses'' against the Constitution.\143\
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\143\2 Farrand, Records of the Federal Convention at 550.
---------------------------------------------------------------------------
Treason and bribery. Applying traditional tools of
interpretation puts a sharper point on this definition of
``high Crimes and Misdemeanors.'' For starters, it is useful to
consider the two impeachable offenses that the Framers
identified for us. ``Treason'' is an unforgiveable betrayal of
the Nation and its security. A President who levies war against
the government, or lends aid and comfort to our enemies, cannot
persist in office; a President who betrays the Nation once will
most certainly do so again. ``Bribery,'' in turn, sounds in
abuse of power. Impeachable bribery occurs when the President
offers, solicits, or accepts something of personal value to
influence his own official actions. By rendering such bribery
impeachable, the Framers sought to ensure that the Nation could
expel a leader who would sell out the interests of ``We the
People'' for his own personal gain.
In identifying ``other high Crimes and Misdemeanors,'' we
are guided by the text and structure of the Constitution, the
records of the Constitutional Convention and state ratifying
debates, and the history of impeachment practice. These sources
demonstrate that the Framers principally intended impeachment
for three overlapping forms of Presidential wrongdoing: (1)
abuse of power, (2) betrayal of the nation through foreign
entanglements, and (3) corruption of office and elections. Any
one of these violations of the public trust justifies
impeachment; when combined in a single course of conduct, they
state the strongest possible case for impeachment and removal
from office.
Abuse of power. There are at least as many ways to abuse
power as there are powers vested in the President. It would
thus be an exercise in futility to attempt a list of every
abuse of power constituting ``high Crimes and Misdemeanors.''
That said, impeachable abuse of power can be roughly divided
into two categories: engaging in official acts forbidden by law
and engaging in official action with motives forbidden by law.
As James Iredell explained, ``the president would be liable to
impeachments [if] he . . . had acted from some corrupt motive
or other.''\144\ This warning echoed Edmund Randolph's teaching
that impeachment must be allowed because ``the Executive will
have great opportunitys of abusing his power.''\145\ President
Richard Nixon's conduct has come to exemplify impeachable abuse
of power: he acted with corrupt motives in obstructing justice
and using official power to target his political opponents, and
his decision to unlawfully defy subpoenas issued by the House
impeachment inquiry was unconstitutional on its face.
---------------------------------------------------------------------------
\144\Quoted in Background and History of Impeachment: Hearing
before the Subcomm. On the Constitution of the H. Comm on the
Judiciary, 105th Cong. 49 (1999) (hereinafter ``1998 Background and
History of Impeachment Hearing'').
\145\2 Farrand, Records of the Federal Convention at 67.
---------------------------------------------------------------------------
Betrayal involving foreign powers. As much as the Framers
feared abuse, they feared betrayal still more. That anxiety is
shot through their discussion of impeachment--and explains why
``Treason'' heads the Constitution's list of impeachable
offenses. James Madison put it simply: the President ``might
betray his trust to foreign powers.''\146\ Although the Framers
did not intend impeachment for good faith disagreements on
matters of diplomacy, they were explicit that betrayal of the
Nation through schemes with foreign powers justified that
remedy. Indeed, foreign interference in the American political
system was among the gravest dangers feared by the Founders of
our Nation and the Framers of our Constitution. In his farewell
address, George Washington thus warned Americans ``to be
constantly awake, since history and experience prove that
foreign influence is one of the most baneful foes of republican
government.''\147\ And in a letter to Thomas Jefferson, John
Adams wrote: ``You are apprehensive of foreign Interference,
Intrigue, Influence. So am I.--But, as often as Elections
happen, the danger of foreign Influence recurs.''\148\
---------------------------------------------------------------------------
\146\Id. at 65-66.
\147\George Washington Farewell Address (1796), George Washington
Papers, Series 2, Letterbooks 1754-1799: Letterbook 24, April 3, 1793--
March 3, 1797, Library of Congress.
\148\To Thomas Jefferson from John Adams, 6 December 1787, Founders
Online, National Archives.
---------------------------------------------------------------------------
Corruption. Lurking beneath the Framers' discussion of
impeachment was the most ancient and implacable foe of
democracy: corruption. The Framers saw no shortage of threats
to the Republic, and sought to guard against them, ``but the
big fear underlying all the small fears was whether they'd be
able to control corruption.''\149\ As Madison put it,
corruption ``might be fatal to the Republic.''\150\ This was
not just a matter of thwarting bribes; it was a far more
expansive challenge. The Framers celebrated civic virtue and
love of country; they wrote rules to ensure officials would not
use public power for private gain.
---------------------------------------------------------------------------
\149\Zephyr Teachout, Corruption in America: From Benjamin
Franklin's Snuff Box to Citizens United 57 (2014).
\150\2 Farrand, Records of the Federal Convention at 66.
---------------------------------------------------------------------------
Impeachment was seen as especially necessary for
Presidential conduct corrupting our system of political self-
government. That concern arose in multiple contexts as the
Framers debated the Constitution. The most important was the
risk that Presidents would place their personal interest in re-
election above our bedrock national commitment to democracy.
The Framers knew that corrupt leaders concentrate power by
manipulating elections and undercutting adversaries. They
despised King George III, who ``resorted to influencing the
electoral process and the representatives in Parliament in
order to gain [his] treacherous ends.''\151\ That is why the
Framers deemed electoral treachery a central ground for
impeachment. The very premise of the Constitution is that the
American people govern themselves, and choose their leaders,
through free and fair elections. When the President concludes
that elections might threaten his grasp on power and abuses his
office to sabotage opponents or invite inference, he rejects
democracy itself and must be removed.
---------------------------------------------------------------------------
\151\Gordon S. Wood, The Creation of the American Republic, 1776-
1787 33 (1998).
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Conclusions regarding the nature of impeachable offenses.
In sum, history teaches that ``high Crimes and Misdemeanors'''
referred mainly to acts committed by public officials, using
their power or privileges, that inflicted grave harm on our
political order. Such great and dangerous offenses included
treason, bribery, serious abuse of power, betrayal of the
national interest through foreign entanglements, and corruption
of office and elections. They were unified by a clear theme:
officials who abused, abandoned, or sought personal benefit
from their public trust--and who threatened the rule of law if
left in power--faced impeachment. Each of these acts, moreover,
should be plainly wrong to reasonable officials and persons of
honor. When a political official uses political power in ways
that substantially harm our political system, Congress can
strip them of that power.
Within these parameters, and guided by fidelity to the
Constitution, the House must judge whether the President's
misconduct is grave enough to require impeachment. That step
must never be taken lightly. It is a momentous act, justified
only when the President's full course of conduct, assessed
without favor or prejudice, is ``seriously incompatible with
either the constitutional form and principles of our government
or the proper performance of constitutional duties of the
presidential office.''\152\ But when that high standard is met,
the Constitution calls the House to action--and the House, in
turn, must rise to the occasion. In such cases, a decision not
to impeach can harm democracy and set an ominous precedent.
---------------------------------------------------------------------------
\152\Report of the Committee on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, H.. Rep. No. 93-1305
8 (1974) (hereinafter ``Committee Report on Nixon Articles of
Impeachment (1974)'').
---------------------------------------------------------------------------
The criminality issue. It is occasionally suggested that
Presidents can be impeached only if they have committed crimes.
That position was rejected in President Nixon's case, and then
rejected again in President Clinton's, and should be rejected
once more. Offenses against the Constitution are different than
offenses against the criminal code. Some crimes, like
jaywalking, are not impeachable. And some forms of misconduct
may offend both the Constitution and the criminal law.
Impeachment and criminality must therefore be assessed
separately--even though the President's commission of
indictable crimes may further support a case for impeachment
and removal. Ultimately, the House must judge whether a
President's conduct offends and endangers the Constitution
itself.
Fallacies about impeachment. In the final section, we
briefly address six falsehoods about impeachment that have
recently drawn public notice.
First, contrary to mistaken claims otherwise, we
demonstrate that the current impeachment inquiry has complied
in every respect with the Constitution, the Rules of the House,
and historic practice and precedent of the House.
Second, we address several evidentiary matters. The House
impeachment inquiry has compiled substantial direct and
circumstantial evidence bearing on the issues at hand.
Nonetheless, President Trump has objected that some of the
evidence gathered by the House comes from witnesses lacking
first-hand knowledge of his conduct. But in the same breath, he
has unlawfully ordered many witnesses with first-hand knowledge
to defy House subpoenas. As we show, President Trump's
assertions regarding the evidence before the House are
misplaced as a matter of constitutional law and common sense.
Third, we consider President Trump's claim that his actions
are protected because of his right under Article II of the
Constitution ``to do whatever I want as president.''\153\ This
claim is wrong, and profoundly so, because our Constitution
rejects pretensions to monarchy and binds Presidents with law.
That is true even of powers vested exclusively in the chief
executive. If those powers are invoked for corrupt reasons, or
wielded in an abusive manner harming the constitutional system,
the President is subject to impeachment for ``high Crimes and
Misdemeanors.'' This is a core premise of the impeachment
power.
---------------------------------------------------------------------------
\153\Remarks by President Trump at Turning Point USA's Teen Student
Action Summit 2019, July 23, 2019, The White House.
---------------------------------------------------------------------------
Fourth, we address whether the House must accept at face
value President Trump's claim that his motives were not
corrupt. In short, no. When the House probes a President's
state of mind, its mandate is to find the facts. That means
evaluating the President's account of his motives to see if it
rings true. The question is not whether the President's conduct
could have resulted from permissible motives. It is whether the
President's real reasons, the ones in his mind at the time,
were legitimate. Where the House discovers persuasive evidence
of corrupt wrongdoing, it is entitled to rely upon that
evidence to impeach.
Fifth, we explain that attempted Presidential wrongdoing is
impeachable. Mason himself said so at the Constitutional
Convention, where he described ``attempts to subvert the
Constitution'' as a core example of ``great and dangerous
offenses.''\154\ Moreover, the Judiciary Committee reached the
same conclusion in President Nixon's case. Historical precedent
thus confirms that ineptitude and insubordination do not afford
the President a defense to impeachment. A President cannot
escape impeachment just because his scheme to abuse power,
betray the nation, or corrupt elections was discovered and
abandoned.
---------------------------------------------------------------------------
\154\Cass R. Sunstein, Impeachment: A Citizen's Guide 47 (2017).
---------------------------------------------------------------------------
Finally, we consider whether impeachment ``nullifies'' the
last election or denies voters their voice in the next one. The
Framers themselves weighed this question. They considered
relying solely on elections--rather than impeachment--to remove
wayward Presidents. That position was firmly rejected. No
President is entitled to persist in office after committing
``high Crimes and Misdemeanors,'' and no one who voted for him
in the last election is entitled to expect he will do so. Where
the President's misconduct is aimed at corrupting elections,
relying on elections to solve the problem is no safeguard at
all.
III. The Purpose of Impeachment
Freedom must not be taken for granted. It demands constant
protection from leaders whose taste of power sparks a voracious
need for more. Time and again, republics have fallen to
officials who care little for the law and use the public trust
for private gain.
The Framers of the Constitution knew this well. They saw
corruption erode the British constitution from within. They
heard kings boast of their own excellence while conspiring with
foreign powers and consorting with shady figures. As talk of
revolution spread, they objected as King George III used favors
and party politics to control Parliament, aided by men who sold
their souls and welcomed oppression.
The Framers risked their freedom, and their lives, to
escape that monarchy. So did their families and many of their
friends. Together, they resolved to build a nation committed to
democracy and the rule of law--a beacon to the world in an age
of aristocracy. In the United States of America, ``We the
People'' would be sovereign. We would choose our own leaders
and hold them accountable for how they exercised power.
As they designed our government at the Constitutional
Convention, however, the Framers faced a dilemma. On the one
hand, many of them embraced the need for a powerful chief
executive. This had been cast into stark relief by the failure
of the Nation's very first constitution, the Articles of
Confederation, which put Congress in charge at the federal
level. The ensuing discord led James Madison to warn, ``it is
not possible that a government can last long under these
circumstances.''\155\ The Framers therefore created the
Presidency. A single official could lead the Nation with
integrity, energy, and dispatch--and would be held personally
responsible for honoring that immense public trust.
---------------------------------------------------------------------------
\155\Quoted in id. at 27.
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Power, though, is a double-edged sword. ``The power to do
good meant also the power to do harm, the power to serve the
republic also meant the power to demean and defile it.''\156\
The President would be vested with breathtaking authority. If
corrupt motives took root in his mind, displacing civic virtue
and love of country, he could sabotage the Constitution. That
was clear to the Framers, who saw corruption as ``the great
force that had undermined republics throughout history.''\157\
Obsessed with the fall of Rome, they knew that corruption
marked a leader's path to abuse and betrayal. Mason thus
emphasized, ``if we do not provide against corruption, our
government will soon be at an end.'' This warning against
corruption--echoed no fewer than 54 times by 15 delegates at
the Convention--extended far beyond bribes and presents. To the
Framers, corruption was fundamentally about the misuse of a
position of public trust for any improper private benefit. It
thus went to the heart of their conception of public service.
As a leading historian recounts, ``a corrupt political actor
would either purposely ignore or forget the public good as he
used the reins of power.''\158\ Because men and women are not
angels, corruption could not be fully eradicated, even in
virtuous officials, but ``its power can be subdued with the
right combination of culture and political rules.''\159\
---------------------------------------------------------------------------
\156\Arthur M. Schlesinger, Jr., The Imperial Presidency 415
(1973).
\157\Elizabeth B. Wydra & Brianne J. Gorod, The First Magistrate in
Foreign Pay, The New Republic, Nov. 11, 2019.
\158\Teachout, Corruption in America at 48.
\159\Id. at 47.
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The Framers therefore erected safeguards against
Presidential abuse. Most famously, they divided power among
three branches of government that had the means and motive to
balance each other. ``Ambition,'' Madison reasoned, ``must be
made to counteract ambition.''\160\ In addition, the Framers
subjected the President to election every four years and
established the Electoral College (which, they hoped, would
select virtuous, capable leaders and refuse to re-elect corrupt
or unpopular ones). Finally, the Framers imposed on the
President a duty to faithfully execute the laws--and required
him to accept that duty in a solemn oath.\161\ To the Framers,
the concept of faithful execution was profoundly important. It
prohibited the President from taking official acts in bad faith
or with corrupt intent, as well as acts beyond what the law
authorized.\162\
---------------------------------------------------------------------------
\160\James Madison, Federalist No. 51 at 356.
\161\U.S. Const. art. II, Sec. 1, cl. 8.
\162\See Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman,
Faithful Execution and Article II, 132 Harv. L. Rev. 2111-2121 (2019).
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A few Framers would have stopped there. This minority
feared vesting any branch of government with the power to end a
Presidency; as they saw it, even extreme Presidential
wrongdoing could be managed in the normal course (mainly by
periodic elections).
That view was decisively rejected. As Professor Raoul
Berger writes, ``the Framers were steeped in English history;
the shades of despotic kings and conniving ministers marched
before them.''\163\ Haunted by those lessons, and convening in
the shadow of revolution, the Framers would not deny the Nation
an escape from Presidents who deemed themselves above the law.
So they turned to a mighty constitutional power, one that
offered a peaceful and politically accountable method for
ending an oppressive Presidency.
---------------------------------------------------------------------------
\163\Raoul Berger, Impeachment: The Constitutional Problems 4
(1974).
---------------------------------------------------------------------------
This was impeachment, a legal relic from the British past
that over the preceding century had found a new lease on life
in the North American colonies. First deployed in 1376--and
wielded in fits and starts over the following 400 years--
impeachment allowed Parliament to charge royal ministers with
abuse, remove them from office, and imprison them. Over time,
impeachment helped Parliament shift power away from royal
absolutism and encouraged more politically accountable
administration. In 1679, it was thus proclaimed in the House of
Commons that impeachment was ``the chief institution for the
preservation of government.''\164\ That sentiment was echoed in
the New World. Even as Parliamentary impeachment fell into
disuse by the early 1700s, colonists in Maryland, Pennsylvania,
and Massachusetts laid claim to this prerogative as part of
their English birthright. During the revolution, ten states
ratified constitutions allowing the impeachment of executive
officials--and put that power to use in cases of corruption and
abuse of power.\165\ Unlike in Britain, though, American
impeachment did not result in fines or jailtime. It simply
removed officials from political power when their conduct
required it.
---------------------------------------------------------------------------
\164\Id. at 1 n.2.
\165\Frank O. Bowman, III, High Crimes and Misdemeanors: A History
of Impeachment for the Age of Trump 72 (2019).
---------------------------------------------------------------------------
Familiar with the use of impeachment to address lawless
officials, the Framers offered a clear answer to Mason's
question at the Constitutional Convention, ``Shall any man be
above justice''?\166\ As Mason himself explained, ``some mode
of displacing an unfit magistrate is rendered indispensable by
the fallibility of those who choose, as well as by the
corruptibility of the man chosen.''\167\ Future Vice President
Elbridge Gerry agreed, adding that impeachment repudiates the
fallacy that our ``chief magistrate could do no wrong.''\168\
Benjamin Franklin, in turn, made the case that impeachment is
``the best way'' to assess claims of serious wrongdoing by a
President; without it, those accusations would fester
unresolved and invite enduring conflict over Presidential
malfeasance.\169\
---------------------------------------------------------------------------
\166\2 Farrand, Records of the Federal Convention at 65-67.
\167\1 Farrand, Records of the Federal Convention at 66.
\168\2 Farrand, Records of the Federal Convention at 66.
\169\James Madison, Notes on Debates in the Federal Convention of
1787 332 (1987).
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Unlike in Britain, the President would answer personally--
to Congress and thus to the Nation--for any serious wrongdoing.
For that reason, as Hamilton later explained, the President
would have no more resemblance to the British king than to
``the Grand Seignior, to the khan of Tartary, [or] to the Man
of the Seven Mountains.''\170\ Whereas ``the person of the king
of Great Britain is sacred and inviolable,'' the President
could be ``impeached, tried, and upon conviction . . . removed
from office.''\171\
---------------------------------------------------------------------------
\170\Alexander Hamilton, Federalist No. 69 at 444.
\171\Id.
---------------------------------------------------------------------------
Of course, the decision to subject the President to
impeachment was not the end of the story. The Framers also had
to specify how this would work in practice. After long and
searching debate they made three crucial decisions, each of
which sheds light on their understanding of impeachment's
proper role in our constitutional system.
First, they limited the consequences of impeachment to
``removal from Office'' and ``disqualification'' from future
officeholding.\172\ To the extent the President's wrongful
conduct also breaks the law, the Constitution expressly
reserves criminal punishment for the ordinary processes of
criminal law. In that respect, ``the consequences of
impeachment and conviction go just far enough, and no further
than, to remove the threat posed to the Republic by an unfit
official.''\173\ This speaks to the very nature of impeachment:
it exists not to inflict personal punishment for past
wrongdoing, but rather to protect against future Presidential
misconduct that would endanger democracy and the rule of
law.\174\
---------------------------------------------------------------------------
\172\U.S. Const. art. I, Sec. 43, cl. 7.
\173\John O. McGinnis, Impeachment: The Structural Understanding,
67 Geo. Wash. L. Rev. 650, 650 (1999).
\174\See Tribe, American Constitutional Law at 155.
---------------------------------------------------------------------------
Second, the Framers vested the House with ``the sole Power
of Impeachment.''\175\ The House thus serves in a role
analogous to a grand jury and prosecutor: it investigates the
President's misconduct and decides whether to formally accuse
him of impeachable acts. As James Iredell explained during
debates over whether to ratify the Constitution, ``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.''\176\ The Senate, in turn,
holds ``the sole Power to try all Impeachments.''\177\ When the
Senate sits as a court of impeachment for the President, each
Senator must swear a special oath, the Chief Justice of the
United States presides, and conviction requires ``the
concurrence of two thirds of the Members present.''\178\ By
designating Congress to accuse the President and conduct his
trial, the Framers confirmed--in Hamilton's words--that
impeachment concerns an ``abuse or violation of some public
trust'' with ``injuries done immediately to the society
itself.''\179\ Impeachment is reserved for offenses against our
political system. It is therefore prosecuted and judged by
Congress, speaking for the Nation.
---------------------------------------------------------------------------
\175\U.S. Const. tart. I, Sec. 2, cl. 5.
\176\4 Jonathan Elliot, ed., The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 113 (1861)
(hereinafter ``Debates in the Several State Conventions'').
\177\U.S. Const. art. I, Sec. 3, cl. 6.
\178\Id.
\179\Alexander Hamilton, Federalist No. 65 at 426.
---------------------------------------------------------------------------
Last, but not least, the Framers imposed a rule of
wrongdoing. The President cannot be removed based on poor
management, general incompetence, or unpopular policies.
Instead, the question in any impeachment inquiry is whether the
President has engaged in misconduct justifying an early end to
his term in office: ``Treason, Bribery, or other high Crimes
and Misdemeanors.''\180\ This phrase had a particular legal
meaning to the Framers. It is to that understanding, and to its
application in prior Presidential impeachments, that we now
turn.
---------------------------------------------------------------------------
\180\U.S. Const. art. II, Sec. 4.
---------------------------------------------------------------------------
IV. Impeachable Offenses
As careful students of history, the Framers knew that
threats to democracy can take many forms. They feared would-be
monarchs, but also warned against fake populists, charismatic
demagogues, and corrupt kleptocrats. In describing the kind of
leader who might menace the Nation, Hamilton offered an
especially striking portrait:
When a man unprincipled in private life[,] desperate in his
fortune, bold in his temper . . . known to have scoffed in
private at the principles of liberty--when such a man is seen
to mount the hobby horse of popularity--to join in the cry of
danger to liberty--to take every opportunity of embarrassing
the General Government & bringing it under suspicion--to
flatter and fall in with all the non sense [sic] of the zealots
of the day--It may justly be suspected that his object is to
throw things into confusion that he may ride the storm and
direct the whirlwind.\181\
---------------------------------------------------------------------------
\181\Alexander Hamilton, ``Objections and Answers respecting the
Administration of the Government,'' Founders Online, National Archives.
This prophesy echoed Hamilton's warning, in Federalist No.
1, that ``of those men who have overturned the liberties of
republics, the greatest number have begun their career by
paying an obsequious court to the people; commencing
demagogues, and ending tyrants.''\182\
---------------------------------------------------------------------------
\182\Alexander Hamilton, Federalist No. 1 at 91.
---------------------------------------------------------------------------
The Framers thus intended impeachment to reach the full
spectrum of Presidential misconduct that threatened the
Constitution. They also intended our Constitution to endure for
the ages. Because they could not anticipate and specifically
prohibit every threat a President might someday pose, the
Framers adopted a standard sufficiently general and flexible to
meet unknown future circumstances. This standard was meant--as
Mason put it--to capture all manner of ``great and dangerous
offenses'' incompatible with the Constitution. When the
President uses the powers of his high office to benefit
himself, while injuring or ignoring the American people he is
oath-bound to serve, he has committed an impeachable offense.
Applying the tools of legal interpretation, as we do below,
puts a sharper point on this definition of ``high Crimes and
Misdemeanors.'' It also confirms that the Framers principally
aimed the impeachment power at a few core evils, each grounded
in a unifying fear that a President might abandon his duty to
faithfully execute the laws. Where the President engages in
serious abuse of power, betrays the national interest through
foreign entanglements, or corrupts his office or elections, he
has undoubtedly committed ``high Crimes and Misdemeanors'' as
understood by the Framers. Any one of these violations of the
public trust is impeachable. When combined in a scheme to
advance the President's personal interests while ignoring or
injuring the Constitution, they state the strongest possible
case for impeachment and removal from office.
A. LESSONS FROM BRITISH AND EARLY AMERICAN HISTORY
As Hamilton recounted, Britain afforded ``[t]he model from
which the idea of [impeachment] has been borrowed.''\183\ That
was manifestly true of the phrase ``high Crimes and
Misdemeanors.'' The Framers could have authorized impeachment
for ``crimes'' or ``serious crimes.'' Or they could have
followed the practice of many American state constitutions and
permitted impeachment for ``maladministration'' or
``malpractice.''\184\ But they instead selected a ``unique
phrase used for centuries in English parliamentary
impeachments.''\185\ To understand their choice requires a
quick tour through history.
---------------------------------------------------------------------------
\183\Alexander Hamilton, Federalist No. 65 at 427.
\184\Bowman, High Crimes and Misdemeanors at 65-72.
\185\Constitutional Grounds for Presidential Impeachment (1974) at
4.
---------------------------------------------------------------------------
That tour offers two lessons. The first is that the phrase
``high Crimes and Misdemeanors'' was used only for
parliamentary impeachments; it was never used in the ordinary
criminal law.\186\ Moreover, in the 400-year history of British
impeachments, the House of Commons impeached many officials on
grounds that did not involve any discernibly criminal conduct.
Indeed, the House of Commons did so yet again just as the
Framers gathered in Philadelphia. That same month, Edmund
Burke--the celebrated champion of American liberty--brought
twenty-two articles of impeachment against Warren Hastings, the
Governor General of India. Burke charged Hastings with offenses
including abuse of power, corruption, disregarding treaty
obligations, and misconduct of local wars. Historians have
confirmed that ``none of the charges could fairly be classed as
criminal conduct in any technical sense.''\187\ Aware of that
fact, Burke accused Hastings of ``[c]rimes, not against forms,
but against those eternal laws of justice, which are our rule
and our birthright: his offenses are not in formal, technical
language, but in reality, in substance and effect, High Crimes
and High Misdemeanors.''\188\
---------------------------------------------------------------------------
\186\See id.
\187\Bowman, High Crimes and Misdemeanors at 41.
\188\Id.
---------------------------------------------------------------------------
Burke's denunciation of Hastings points to the second
lesson from British history: ``high Crimes and Misdemeanors''
were understood as offenses against the constitutional system
itself. This is confirmed by use of the word ``high,'' as well
as Parliamentary practice. From 1376 to 1787, the House of
Commons impeached officials on seven general grounds: (1) abuse
of power; (2) betrayal of the nation's security and foreign
policy; (3) corruption; (4) armed rebellion [a.k.a. treason];
(5) bribery; (6) neglect of duty; and (7) violating
Parliament's constitutional prerogatives.\189\ To the Framers
and their contemporaries learned in the law, the phrase ``high
Crimes and Misdemeanors'' would have called to mind these
offenses against the body politic.
---------------------------------------------------------------------------
\189\Id. at 46; Berger, Impeachment at 70.
---------------------------------------------------------------------------
The same understanding prevailed on this side of the
Atlantic. In the colonial period and under newly-ratified state
constitutions, most impeachments targeted abuse of power,
betrayal of the revolutionary cause, corruption, treason, and
bribery.\190\ Many Framers at the Constitutional Convention had
participated in drafting their state constitutions, or in
colonial and state removal proceedings, and were steeped in
this outlook on impeachment. Further, the Framers knew well the
Declaration of Independence, ``whose bill of particulars
against King George III modeled what [we would] now view as
articles of impeachment.''\191\ That bill of particulars did
not dwell on technicalities of criminal law, but rather charged
the king with a ``long train of abuses and usurpations,''
including misuse of power, efforts to obstruct and undermine
elections, and violating individual rights.\192\
---------------------------------------------------------------------------
\190\See Peter Charles Hoffer & N. E. H. Hull, Impeachment in
America, 1635-1805 1-106 (1984).
\191\Laurence H. Tribe & Joshua Matz, To End a Presidency: The
Power of Impeachment 7 (2018).
\192\The Declaration of Independence, Thomas Jefferson, et al, July
4, 1776, Copy of Declaration of Independence, Library of Congress.
---------------------------------------------------------------------------
History thus teaches that ``high Crimes and Misdemeanors''
referred mainly to acts committed by public officials, using
their power or privileges, that inflicted grave harm on society
itself. Such great and dangerous offenses included treason,
bribery, abuse of power, betrayal of the nation, and corruption
of office. They were unified by a clear theme: officials who
abused, abandoned, or sought personal benefit from their public
trust--and who threatened the rule of law if left in power--
faced impeachment and removal.
B. TREASON AND BRIBERY
For the briefest of moments at the Constitutional
Convention, it appeared as though Presidential impeachment
might be restricted to ``treason, or bribery.''\193\ But when
this suggestion reached the floor, Mason revolted. With
undisguised alarm, he warned that such limited grounds for
impeachment would miss ``attempts to subvert the
Constitution,'' as well as ``many great and dangerous
offenses.''\194\ Here he invoked the charges pending in
Parliament against Hastings as a case warranting impeachment
for reasons other than treason. To ``extend the power of
impeachments,'' Mason initially suggested adding ``or
maladministration'' after ``treason, or bribery.''\195\
Madison, however, objected that ``so vague a term will be
equivalent to a tenure during the pleasure of the
Senate.''\196\ In response, Mason substituted ``other high
Crimes and Misdemeanors.''\197\ Apparently pleased with Mason's
compromise, the Convention accepted his proposal and moved on.
---------------------------------------------------------------------------
\193\2 Farrand, Records of the Federal Convention at 550.
\194\Id.
\195\Id.
\196\Id.
\197\Id.
---------------------------------------------------------------------------
This discussion confirms that Presidential impeachment is
warranted for all manner of great and dangerous offenses that
subvert the Constitution. It also sheds helpful light on the
nature of impeachable offenses: in identifying ``other high
Crimes and Misdemeanors,'' we can start with two that the
Framers identified for us, ``Treason'' and ``Bribery.''
1. Impeachable Treason
Under Article III of the Constitution, ``treason against
the United States, shall consist only in levying War against
them, or in adhering to their Enemies, giving them Aid and
Comfort.''\198\ In other words, a person commits treason if he
uses armed force in an attempt to overthrow the government, or
if he knowingly gives aid and comfort to nations (or
organizations) with which the United States is in a state of
declared or open war. At the very heart of ``Treason'' is
deliberate betrayal of the nation and its security. Such
betrayal would not only be unforgivable, but would also confirm
that the President remains a threat if allowed to remain in
office. A President who has knowingly betrayed national
security is a President who will do so again. He endangers our
lives and those of our allies.
---------------------------------------------------------------------------
\198\U.S. Const. art. III, Sec. 3, cl. 1.
---------------------------------------------------------------------------
2. Impeachable Bribery
The essence of impeachable bribery is a government
official's exploitation of his or her public duties for
personal gain. To the Framers, it was received wisdom that
nothing can be ``a greater Temptation to Officers [than] to
abuse their Power by Bribery and Extortion.''\199\ To guard
against that risk, the Framers authorized the impeachment of a
President who offers, solicits, or accepts something of
personal value to influence his own official actions. By
rendering such ``Bribery'' impeachable, the Framers sought to
ensure that the Nation could expel a leader who would sell out
the interests of ``We the People'' to achieve his own personal
gain.
---------------------------------------------------------------------------
\199\William Hawkins, A Treatise of Pleas to the Crown, ch. 67,
Sec. 3 (1716).
---------------------------------------------------------------------------
Unlike ``Treason,'' which is defined in Article III,
``Bribery'' is not given an express definition in the
Constitution. But as Justice Joseph Story explained, a ``proper
exposition of the nature and limits of this offense'' can be
found in the Anglo-American common law tradition known well to
our Framers.\200\ That understanding, in turn, can be refined
by reference to the Constitution's text and the records of the
Constitutional Convention.\201\
---------------------------------------------------------------------------
\200\2 Story, Commentaries at 263; see also H. Rep. No. 946 at 19
(1912).
\201\For example, while the English common law tradition
principally addressed itself to judicial bribery, the Framers
repeatedly made clear at the Constitutional Convention that they
intended to subject the President to impeachment for bribery. They
confirmed this intention in the Impeachment Clause, which authorizes
the impeachment of ``[t]he President, Vice President and all civil
Officers of the United States'' for ``Treason, Bribery, or other high
Crimes and Misdemeanors.'' U.S. Const., art. 2, Sec. 4. It is therefore
proper to draw upon common law principles and to apply them to the
office of the Presidency.
---------------------------------------------------------------------------
To start with common law: At the time of the Constitutional
Convention, bribery was well understood in Anglo-American law
to encompass offering, soliciting, or accepting bribes. In
1716, for example, William Hawkins defined bribery in an
influential treatise as ``the receiving or offering of any
undue reward, by or to any person whatsoever . . . in order to
incline him to do a thing against the known rules of honesty
and integrity.''\202\ This description of the offense was
echoed many times over the following decades. In a renowned
bribery case involving the alleged solicitation of bribes, Lord
Mansfield agreed that ``[w]herever it is a crime to take, it is
a crime to give: they are reciprocal.''\203\ Two years later,
William Blackstone confirmed that ``taking bribes is
punished,'' just as bribery is punishable for ``those who offer
a bribe, though not taken.''\204\ Soliciting a bribe--even if
it is not accepted--thus qualified as bribery at common law.
Indeed, it was clear under the common law that ``the attempt is
a crime; it is complete on his side who offers it.''\205\
---------------------------------------------------------------------------
\202\Hawkins, A Treatise of Pleas to the Crown, ch. 67, Sec. 2
(1716).
\203\Rex v. Vaughan, 98 Eng. Rep. 308, 311 (K.B. 1769).
\204\William Blackstone, Commentaries on the Laws of England, Vol.
2, Book 4, Ch. 10, Sec. 17 (1771).
\205\Rex v. Vaughan, 98 Eng. Rep. 308, 311 (K.B. 1769). American
courts have subsequently repeated this precise formulation. See, e.g.,
State v. Ellis, 33 N.J.L. 102, 104 (N.J. Sup. Ct. 1868) (``The offence
is complete when an offer or reward is made to influence the vote or
action of the official.''); see also William O. Russell, A Treatise on
Crimes and Misdemeanors 239-240 (1st American Ed) (1824) (``The law
abhors the least tendency to corruption; and up on the principle which
has been already mentioned, of an attempt to commit even a misdemeanor,
being itself a misdemeanor, (f) attempts to bribe, though unsuccessful,
have in several cases been held to be criminal.'').
---------------------------------------------------------------------------
The Framers adopted that principle into the Constitution.
As Judge John Noonan explains, the drafting history of the
Impeachment Clause demonstrates that ```Bribery' was read both
actively and passively, including the chief magistrate bribing
someone and being bribed.''\206\ Many scholars of Presidential
impeachment have reached the same conclusion.\207\ Impeachable
``Bribery'' thus covers--inter alia--the offer, solicitation,
or acceptance of something of personal value by the President
to influence his own official actions.
---------------------------------------------------------------------------
\206\John T. Noonan, Jr., Bribes: The Intellectual History of a
Moral Idea 430 (1984).
\207\As Professor Bowman writes, bribery was ``a common law crime
that developed from a narrow beginning'' to reach ``giving, and
offering to give, [any] improper rewards.'' Bowman, High Crimes &
Misdemeanors at 243; see also, e.g., Tribe & Matz, To End A Presidency
at 33 (``The corrupt exercise of power in exchange for a personal
benefit defines impeachable bribery. That's self-evidently true
whenever the president receives bribes to act a certain way. But it's
also true when the president offers bribes to other officials--for
example, to a federal judge, a legislator, or a member of the Electoral
College . . . In either case, the president is fully complicit in a
grave degradation of power, and he can never again be trusted to act as
a faithful public servant.'').
---------------------------------------------------------------------------
This conclusion draws still more support from a closely
related part of the common law. In the late-17th century,
``bribery'' was a relatively new offense, and was understood as
overlapping with the more ancient common law crime of
``extortion.''\208\ ``Extortion,'' in turn, was defined as the
``abuse of public justice, which consists in any officer's
unlawfully taking, by colour of his office, from any man, any
money or thing of value, that is not due to him, or more than
is due, or before it is due.''\209\ Under this definition, both
bribery and extortion occurred when an official used his public
position to obtain private benefits to which he was not
entitled. Conduct which qualified as bribery was therefore
``routinely punished as common law extortion.''\210\ To the
Framers, who would have seen bribery and extortion as virtually
coextensive, when a President acted in his official capacity to
offer, solicit, or accept an improper personal benefit, he
committed ``Bribery.''\211\
---------------------------------------------------------------------------
\208\See James Lindgren, The Elusive Distinction Between Bribery
and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev.
815, 839 (1988).
\209\Blackstone, Commentaries, Vol. 2, Book 4, Ch. 10, Sec. 22
(1771) (citing 1 Hawk. P. C. 170); accord Giles Jacob, A New Law-
Dictionary 102 (1782) (defining ``Extortion'' as ``an unlawful taking
by an officer, &c. by colour of his office, of any money, or valuable
thing, from a person where none at all is due, or not so much is due,
or before it is due'').
\210\Lindgren, The Elusive Distinction, 35 UCLA L. Rev. at 839.
\211\For all the reasons given below in our discussion of the
criminality issue, impeachable ``Bribery'' does not refer to the
meaning of bribery under modern federal criminal statutes. See also
Bowman, High Crimes & Misdemeanors at 243-44; Tribe & Matz, To End A
Presidency at 31-33.
---------------------------------------------------------------------------
Turning to the nature of the improper personal benefit:
because officials can be corrupted in many ways, the benefit at
issue in a bribe can be anything of subjective personal value
to the President. This is not limited to money. Indeed, given
their purposes, it would have made no sense for the Framers to
confine ``Bribery'' to the offer, solicitation, or acceptance
of money, and they expressed no desire to impose that
restriction. To the contrary, in guarding against foreign
efforts to subvert American officials, they confirmed their
broad view of benefits that might cause corruption: a person
who holds ``any Office of Profit or Trust,'' such as the
President, is forbidden from accepting ``any present, Office or
Tile, of any kind whatever, from . . . a foreign State.''\212\
An equally pragmatic (and capacious) view applies to the
impeachable offense of ``Bribery.'' This view is further
anchored in the very same 17th and 18th century common law
treatises that were well known to the Framers. Those
authorities used broad language in defining what qualifies as a
``thing of value'' in the context of bribery: ``any undue
reward'' or any ``valuable consideration.''\213\
---------------------------------------------------------------------------
\212\U.S. Const, art. I, Sec. 9, cl.8.
\213\Hawkins, A Treatise of Pleas to the Crown, ch. 67, Sec. 2
(1716).
---------------------------------------------------------------------------
To summarize, impeachable ``Bribery'' occurs when a
President offers, solicits, or accepts something of personal
value to influence his own official actions. Bribery is thus an
especially egregious and specific example of a President
abusing his power for private gain. As Blackstone explained,
bribery is ``the genius of despotic countries where the true
principles of government are never understood''--and where ``it
is imagined that there is no obligation from the superior to
the inferior, no relative duty owing from the governor to the
governed.''\214\ In our democracy, the Framers understood that
there is no place for Presidents who would abuse their power
and betray the public trust through bribery.
---------------------------------------------------------------------------
\214\Blackstone, Commentaries on the Laws of England, Book 4, ch.
10 ``Of Offenses Against Public Justice'' (1765-1770).
---------------------------------------------------------------------------
Like ``Treason,'' the offense of ``Bribery'' is thus aimed
at a President who is a continuing threat to the Constitution.
Someone who would willingly assist our enemies, or trade public
power for personal favors, is the kind of person likely to
break the rules again if they remain in office. But there is
more: both ``Treason'' and ``Bribery'' are serious offenses
with the capacity to corrupt constitutional governance and harm
the Nation itself; both involve wrongdoing that reveals the
President as a continuing threat if left in power; and both
offenses are ``plainly wrong in themselves to a person of
honor, or to a good citizen, regardless of words on the statute
books.''\215\ Looking to the Constitution's text and history--
including the British, colonial, and early American traditions
discussed earlier--these characteristics also define ``other
high Crimes and Misdemeanors.''
---------------------------------------------------------------------------
\215\Charles L. Black Jr. & Philip Bobbitt, Impeachment: A
Handbook, New Edition 34 (2018).
---------------------------------------------------------------------------
C. ABUSE, BETRAYAL & CORRUPTION
With that understanding in place, the records of the
Constitutional Convention offer even greater clarity. They
demonstrate that the Framers principally intended impeachment
for three forms of Presidential wrongdoing: serious abuse of
power, betrayal of the national interest through foreign
entanglements, and corruption of office and elections. When the
President engages in such misconduct, and does so in ways that
are recognizably wrong and injurious to our political system,
impeachment is warranted. That is proven not only by debates
surrounding adoption of the Constitution, but also by the
historical practice of the House in exercising the impeachment
power.
1. Abuse of Power
As Justice Robert Jackson wisely observed, ``the purpose of
the Constitution was not only to grant power, but to keep it
from getting out of hand.''\216\ Nowhere is that truer than in
the Presidency. As the Framers created a formidable chief
executive, they made clear that impeachment is justified for
serious abuse of power. Edmund Randolph was explicit on this
point. In explaining why the Constitution must authorize
Presidential impeachment, he warned that ``the Executive will
have great opportunitys of abusing his power.''\217\ Madison,
too, stated that impeachment is necessary because the President
``might pervert his administration into a scheme of . . .
oppression.''\218\ This theme echoed through the state
ratifying conventions. Advocating that New York ratify the
Constitution, Hamilton set the standard for impeachment at an
``abuse or violation of some public trust.''\219\ In South
Carolina, Charles Pinckney agreed that Presidents must be
removed who ``behave amiss or betray their public trust.''\220\
In Massachusetts, Reverend Samuel Stillman asked, ``With such a
prospect [of impeachment], who will dare to abuse the powers
vested in him by the people.''\221\ Time and again, Americans
who wrote and ratified the Constitution confirmed that
Presidents may be impeached for abusing the power entrusted to
them.
---------------------------------------------------------------------------
\216\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640
(Jackson, J., concurring).
\217\2 Farrand, Records of the Federal Convention at 67.
\218\Id. at 65-66.
\219\Alexander Hamilton, Federalist No. 65 at 426.
\220\Berger, Impeachment at 94.
\221\2 Elliot, Debates in the Several State Conventions at 169.
---------------------------------------------------------------------------
There are at least as many ways to abuse power as there are
powers vested in the President. It would thus be an exercise in
futility to attempt a list of every conceivable abuse
constituting ``high Crimes and Misdemeanors.'' That said, abuse
of power was no vague notion to the Framers and their
contemporaries. It had a very particular meaning to them.
Impeachable abuse of power can take two basic forms: (1) the
exercise of official power in a way that, on its very face,
grossly exceeds the President's constitutional authority or
violates legal limits on that authority; and (2) the exercise
of official power to obtain an improper personal benefit, while
ignoring or injuring the national interest. In other words, the
President may commit an impeachable abuse of power in two
different ways: by engaging in forbidden acts, or by engaging
in potentially permissible acts but for forbidden reasons
(e.g., with the corrupt motive of obtaining a personal
political benefit).
The first category involves conduct that is inherently and
sharply inconsistent with the law--and that amounts to claims
of monarchical prerogative. The generation that rebelled
against King George III knew what absolute power looked like.
The Framers had other ideas when they organized our government,
and so they placed the chief executive within the bounds of
law. That means the President may exercise only the powers
expressly or impliedly vested in him by the Constitution, and
he must also respect legal limits on the exercise of those
powers (including the rights of Americans citizens). A
President who refuses to abide these restrictions, thereby
causing injury to society itself and engaging in recognizably
wrongful conduct, may be subjected to impeachment for abuse of
power.
That principle also covers conduct grossly inconsistent
with and subversive of the separation of powers. The Framers
knew that ``[t]he accumulation of all powers, legislative,
executive, and judiciary, in the same hands, . . . may justly
be pronounced the very definition of tyranny.''\222\ To protect
liberty, they wrote a Constitution that creates a system of
checks and balances within the federal government. Some of
those rules are expressly enumerated in our founding charter;
others are implied from its structure or from the history of
inter-branch relations.\223\ When a President wields executive
power in ways that usurp and destroy the prerogatives of
Congress or the Judiciary, he exceeds the scope of his
constitutional authority and violates limits on permissible
conduct. Such abuses of power are therefore impeachable. That
conclusion is further supported by the British origins of the
phrase ``high Crimes and Misdemeanors'': Parliament repeatedly
impeached ministers for ``subvert[ing] its conception of proper
constitutional order in favor of the `arbitrary and tyrannical'
government of ambitious monarchs and their grasping
minions.''\224\
---------------------------------------------------------------------------
\222\James Madison, Federalist No. 47 at 336.
\223\See generally National Labor Relations Board v. Noel Canning,
et al., 573 U.S. 513 (2014).
\224\Bowman, High Crimes and Misdemeanors at 109.
---------------------------------------------------------------------------
The Supreme Court advanced similar logic in Ex Parte
Grossman, which held the President can pardon officials who
defy judicial orders and are held in criminal contempt of
court.\225\ This holding raised an obvious concern: what if the
President used ``successive pardons''' to ``deprive a court of
power to enforce its orders''?\226\ That could fatally weaken
the Judiciary's role under Article III of the Constitution. On
behalf of a unanimous Court, Chief Justice William Howard
Taft--who had previously served as President--explained that
``exceptional cases like this would suggest a resort to
impeachment.''\227\
---------------------------------------------------------------------------
\225\Ex Parte Grossman, 267 U.S. 87 (1925).
\226\Id. at 121.
\227\Id.
---------------------------------------------------------------------------
Two impeachment inquiries have involved claims that a
President grossly violated the Constitution's separation of
powers. The first was in 1868, when the House impeached
President Andrew Johnson, who had succeeded President Abraham
Lincoln following his assassination at Ford's Theatre. There,
the articles approved by the House charged President Johnson
with conduct forbidden by law: in firing the Secretary of War,
he had allegedly violated the Tenure of Office Act, which
restricted the President's power to remove cabinet members
during the term of the President who had appointed them.\228\
President Johnson was thus accused of a facial abuse of power.
In the Senate, though, he was acquitted by a single vote--
largely because the Tenure of Office Act was viewed by many
Senators as likely unconstitutional (a conclusion later adopted
by the Supreme Court in an opinion by Chief Justice Taft, who
described the Act as ``invalid''\229\).
---------------------------------------------------------------------------
\228\Articles of Impeachment Exhibited By The House Of
Representatives Against Andrew Johnson, President of the United States,
40th Cong. (1868).
\229\Myers v. United States, 272 U.S. 52, 108 (1926).
---------------------------------------------------------------------------
Just over 100 years later, this Committee accused a second
chief executive of abusing his power. In a departure from prior
Presidential practice--and in contravention of Article I of the
Constitution--President Nixon had invoked specious claims of
executive privilege to defy Congressional subpoenas served as
part of an impeachment inquiry. His obstruction centered on
tape recordings, papers, and memoranda relating to the
Watergate break-in and its aftermath. As the House Judiciary
Committee found, he had interposed ``the powers of the
presidency against the lawful subpoenas of the House of
Representatives, thereby assuming to himself functions and
judgments necessary to exercise the sole power of impeachment
vested by the Constitution in the House of
Representatives.''\230\ Put simply, President Nixon purported
to control the exercise of powers that belonged solely to the
House and not to him--including the power of inquiry that is
vital to any Congressional judgments about impeachment. In so
doing, President Nixon injured the constitutional plan:
``Unless the defiance of the Committee's subpoenas under these
circumstances is considered grounds for impeachment, it is
difficult to conceive of any President acknowledging that he
obligated to supply the relevant evidence necessary for
Congress to exercise its constitutional responsibility in an
impeachment proceeding.''\231\ The House Judiciary Committee
therefore approved an article of impeachment against President
Nixon for abuse of power in obstructing the House impeachment
inquiry.
---------------------------------------------------------------------------
\230\Committee Report on Nixon Articles of Impeachment (1974) at
188.
\231\Id. at 213.
---------------------------------------------------------------------------
But that was only part of President Nixon's impeachable
wrongdoing. The House Judiciary Committee also approved two
additional articles of impeachment against him for abuse of
power, one for obstruction of justice and the other for using
Presidential power to target, harass, and surveil his political
opponents. These articles demonstrate the second way in which a
President can abuse power: by acting with improper motives.
This understanding of impeachable abuse of power is rooted
in the Constitution's text, which commands the President to
``faithfully execute'' the law. At minimum, that duty requires
Presidents ``to exercise their power only when it is motivated
in the public interest rather than in their private self-
interest.''\232\ A President can thus be removed for exercising
power with a corrupt purpose, even if his action would
otherwise be permissible. As Iredell explained at the North
Carolina ratifying convention, ``the president would be liable
to impeachments [if] he had . . . acted from some corrupt
motive or other,'' or if he was ``willfully abusing his
trust.''\233\ Madison made a similar point at Virginia's
ratifying convention. There, he observed that the President
could be impeached for abuse of the pardon power if there are
``grounds to believe'' he has used it to ``shelter'' persons
with whom he is connected ``in any suspicious manner.''\234\
Such a pardon would technically be within the President's
authority under Article II of the Constitution, but it would
rank as an impeachable abuse of power because it arose from the
forbidden purpose of obstructing justice. To the Framers, it
was dangerous for officials to exceed their constitutional
power, or to transgress legal limits, but it was equally
dangerous (perhaps more so) for officials to conceal corrupt or
illegitimate objectives behind superficially valid acts.
---------------------------------------------------------------------------
\232\Kent et al., Faithful Execution at 2120, 2179.
\233\1998 Background and History of Impeachment Hearing at 49.
\234\3 Elliott, Debates in the Several State Conventions at 497-98.
---------------------------------------------------------------------------
Again, President Nixon's case is instructive. After
individuals associated with his campaign committee committed
crimes to promote his reelection, he used the full powers of
his office as part of a scheme to obstruct justice. Among many
other wrongful acts, President Nixon dangled pardons to
influence key witnesses, told a senior aide to have the CIA
stop an FBI investigation into Watergate, meddled with Justice
Department immunity decisions, and conveyed secret law
enforcement information to suspects. Even if some of this
conduct was formally within the scope of President Nixon's
authority as head of the Executive Branch, it was undertaken
with illegitimate motives. The House Judiciary Committee
therefore included it within an article of impeachment charging
him with obstruction of justice. Indeed, following President
Nixon's resignation and the discovery of additional evidence
concerning obstruction, all eleven members of the Committee who
had originally voted against that article joined a statement
affirming that ``we were prepared to vote for his impeachment
on proposed Article I had he not resigned his office.''\235\ Of
course, several decades later, obstruction of justice was also
the basis for an article of impeachment against President
Clinton, though his conduct did not involve official acts.\236\
---------------------------------------------------------------------------
\235\ Committee Report on Nixon Articles of Impeachment (1974) at
361.
\236\ In President Clinton's case, the House approved the article
of impeachment for obstruction of justice. There was virtually no
disagreement in those proceedings over whether obstructing justice can
be impeachable; scholars, lawyers, and legislators on all sides of the
dispute recognized that it can be. See Daniel J. Hemel & Eric A.
Posner, Presidential Obstruction of Justice, 106 Cal. L. Rev 1277,
1305-1307 (2018). Publicly available evidence does not suggest that the
Senate's acquittal of President Clinton was based on the view that
obstruction of justice is not impeachable. Rather, Senators who voted
for acquittal appear to have concluded that some of the factual charges
were not supported and that, even if Presidential perjury and
obstruction of justice might in some cases justify removal, the nature
and circumstances of the conduct at issue (including its predominantly
private character) rendered it insufficiently grave to warrant that
remedy.
---------------------------------------------------------------------------
Yet obstruction of justice did not exhaust President
Nixon's corrupt abuse of power. He was also accused of
manipulating federal agencies to injure his opponents, aid his
friends, gain personal political benefits, and violate the
constitutional rights of American citizens. For instance,
President Nixon improperly attempted to cause income tax audits
of his perceived political adversaries; directed the FBI and
Secret Service to engage in targeted (and unlawful)
surveillance; and formed a secret investigative unit within the
White House--financed with campaign contributions--that
utilized CIA resources in its illegal covert activities. In
explaining this additional article of impeachment, the House
Judiciary Committee stated that President Nixon's conduct was
``undertaken for his personal political advantage and not in
furtherance of any valid national policy objective.''\237\ His
abuses of executive power were thus ``seriously incompatible
with our system of constitutional government'' and warranted
removal from office.\238\
---------------------------------------------------------------------------
\237\Committee Report on Nixon Articles of Impeachment (1974) at
139.
\238\Id.
---------------------------------------------------------------------------
With the benefit of hindsight, the House's decision to
impeach President Johnson is best understood in a similar
frame. Scholars now largely agree that President Johnson's
impeachment was motivated not by violations of the Tenure of
Office Act, but on his illegitimate use of power to undermine
Reconstruction and subordinate African-Americans following the
Civil War.\239\ In that period, fundamental questions about the
nature and future of the Union stood unanswered. Congress
therefore passed a series of laws to ``reconstruct the former
Confederate states into political entities in which black
Americans enjoyed constitutional protections.''\240\ This
program, however, faced an unyielding enemy in President
Johnson, who declared that ``white men alone must manage the
south.''\241\ Convinced that political control by African-
Americans would cause a ``relapse into barbarism,'' President
Johnson vetoed civil rights laws; when Congress overrode him,
he refused to enforce those laws.\242\ The results were
disastrous. As Annette Gordon-Reed writes, ``it would be
impossible to exaggerate how devastating it was to have a man
who affirmatively hated black people in charge of the program
that was designed to settle the terms of their existence in
post-Civil War America.''\243\ Congress tried to compromise
with the President, but to no avail. A majority of the House
finally determined that President Johnson posed a clear and
present danger to the Nation if allowed to remain in office.
---------------------------------------------------------------------------
\239\See generally Michael Les Benedict, The Impeachment and Trial
of Andrew Johnson (1999).
\240\Jeffrey A. Engel, Jon Meacham, Timothy Naftali, & Peter Baker,
Impeachment: An American History 48 (2018).
\241\Id. at 49.
\242\Id.
\243\See Annette Gordon-Reed, Andrew Johnson: The American
Presidents Series: the 17th President, 1865-1869 12 (2011).
---------------------------------------------------------------------------
Rather than directly target President Johnson's faithless
execution of the laws, and his illegitimate motives in wielding
power, the House resorted to charges based on the Tenure of
Office Act. But in reality, ``the shaky claims prosecuted by
[the House] obscured a far more compelling basis for removal:
that Johnson's virulent use of executive power to sabotage
Reconstruction posed a mortal threat to the nation--and to
civil and political rights--as reconstituted after the Civil
War . . . [T]he country was in the throes of a second founding.
Yet Johnson abused the powers of his office and violated the
Constitution to preserve institutions and practices that had
nearly killed the Union. He could not be allowed to salt the
earth as the Republic made itself anew.''\244\ Viewed from that
perspective, the case for impeaching President Johnson rested
on his use of power with illegitimate motives.
---------------------------------------------------------------------------
\244\Tribe & Matzo, To End a Presidency at 55.
---------------------------------------------------------------------------
Pulling this all together, the Framers repeatedly confirmed
that Presidents can be impeached for grave abuse of power.
Where the President engages in acts forbidden by law, or acts
with an improper motive, he has committed an abuse of power
under the Constitution. Where those abuses inflict substantial
harm on our political system and are recognizably wrong, they
warrant his impeachment and removal.\245\
---------------------------------------------------------------------------
\245\In President Clinton's case, it was debated whether Presidents
can be impeached for acts that do not involve their official powers.
See Staff Report on Constitutional Grounds for Presidential
Impeachment: Modern Precedents (1998) at 6-7; Minority Staff of H.
Comm. on the Judiciary, 105th Cong., Constitutional Grounds for
Presidential Impeachment: Modern Precedents Minority Views 3-4, 8-9,
13-16 (Comm. Print 1998). Many scholars have taken the view that such
private conduct may be impeachable in extraordinary circumstances, such
as where it renders the President unviable as the leader of a
democratic nation committed to the rule of law. See, e.g., Tribe &
Matzo, To End A Presidency at 10, 51; Black & Babbitt, Impeachment at
35. It also bears mention that some authority supports the view that
Presidents might be subject to impeachment not for abusing their
official powers, but by failing to use them and thus engaging in gross
dereliction of official duty. See, e.g., Tribe & Matzo, To End A
Presidency at 50; Akhil Reed Amar, America's Constitution: A Biography
200 (2006); Black & Babbitt, Impeachment at 34.
---------------------------------------------------------------------------
2. Betrayal of the National Interest Through Foreign Entanglements
It is not a coincidence that the Framers started with
``Treason'' in defining impeachable offenses. Betrayal was no
abstraction to them. They had recently waged a war for
independence in which some of their fellow citizens remained
loyal to the enemy. The infamous traitor, Benedict Arnold, had
defected to Britain less than a decade earlier. As they looked
outward, the Framers saw kings scheming for power, promising
fabulous wealth to spies and deserters. The United States could
be enmeshed in such conspiracies: ``Foreign powers,'' warned
Elbridge Gerry, ``will intermeddle in our affairs, and spare no
expense to influence them.''\246\ The young Republic might not
survive a President who schemed with other nations, entangling
himself in secret deals that harmed our democracy.
---------------------------------------------------------------------------
\246\Wydra & Gorod, The First Magistrate in Foreign Pay.
---------------------------------------------------------------------------
That reality loomed over the impeachment debate in
Philadelphia. Explaining why the Constitution required an
impeachment option, Madison argued that a President ``might
betray his trust to foreign powers.''\247\Gouverneur Morris,
who had initially opposed allowing impeachment, was convinced:
``no one would say that we ought to expose ourselves to the
danger of seeing the first Magistrate in foreign pay, without
being able to guard against it by displacing him.''\248\ In the
same vein, Franklin noted ``the case of the Prince of Orange
during the late war,'' in which a Dutch prince reneged on a
military treaty with France.\249\ Because there was no
impeachment power or other method of inquiry, the prince's
motives were secret and untested, drastically destabilizing
Dutch politics and giving ``birth to the most violent
animosities and contentions.''\250\
---------------------------------------------------------------------------
\247\2 Farrand, Records of the Federal Convention at 65.
\248\Id. at 68.
\249\Id. at 67-68.
\250\Id.
---------------------------------------------------------------------------
Impeachment for betrayal of the Nation's interest--and
especially for betrayal of national security and foreign
policy--was hardly exotic to the Framers. ``The history of
impeachment over the centuries shows an abiding awareness of
how vulnerable the practice of foreign policy is to the
misconduct of its makers.''\251\ Indeed, ``impeachments on this
ground were a constant of parliamentary practice,'' and ``a
string of British ministers and royal advisors were impeached
for using their official powers contrary to the country's vital
foreign interests.''\252\ Although the Framers did not intend
impeachment for genuine, good faith disagreements between the
President and Congress over matters of diplomacy, they were
explicit that betrayal of the Nation through plots with foreign
powers justified removal.
---------------------------------------------------------------------------
\251\Frank O. Bowman, III, Foreign Policy Has Always Been at the
Heart of Impeachment, Foreign Affairs (Nov. 2019).
\252\Bowman, High Crimes & Misdemeanors at 48, 106.
---------------------------------------------------------------------------
In particular, foreign interference in the American
political system was among the gravest dangers feared by the
Founders of our Nation and the Framers of our Constitution. For
example, in a letter to Thomas Jefferson, John Adams wrote:
``You are apprehensive of foreign Interference, Intrigue,
Influence. So am I.--But, as often as Elections happen, the
danger of foreign Influence recurs.''\253\ And in Federalist
No. 68, Hamilton cautioned that the ``most deadly adversaries
of republican government'' may come ``chiefly from the desire
in foreign powers to gain an improper ascendant in our
councils.\254\
---------------------------------------------------------------------------
\253\To Thomas Jefferson from John Adams, 6 December 1787, Founders
Online, National Archives.
\254\Alexander Hamilton, Federalist No. 68 at 441.
---------------------------------------------------------------------------
The President's important role in foreign affairs does not
disable the House from evaluating whether he committed
impeachable offenses in that field. This conclusion follows
from the Impeachment Clause itself but is also supported by the
Constitution's many grants of power to Congress addressing
foreign affairs. Congress is empowered to ``declare War,''
``regulate Commerce with foreign Nations,'' ``establish an
uniform Rule of Naturalization,'' ``define and punish Piracies
and Felonies committed on the high Seas, and Offences against
the Law of Nations,'' ``grant Letters of Marque and Reprisal,''
and ``make Rules for the Government and Regulation of the land
and naval Forces.''\255\ Congress also has the power to set
policy, define law, undertake oversight and investigations,
create executive departments, and authorize government funding
for a slew of national security matters.\256\ In addition, the
President cannot make a treaty or appoint an ambassador without
the approval of the Senate.\257\ In those respects and many
others, constitutional authority over the ``conduct of the
foreign relations of our Government'' is shared between ``the
Executive and Legislative [branches].''\258\ Stated simply,
``the Executive is not free from the ordinary controls and
checks of Congress merely because foreign affairs are at
issue.''\259\ In these realms, as in many others, the
Constitution ``enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.''\260\
---------------------------------------------------------------------------
\255\U.S. Const., art. I, Sec. 8.
\256\See Lawrence Friedman & Victor Hansen, There Is No
Constitutional Impediment to an Impeachment Inquiry that Concerns
National Security, Just Security, Oct. 1, 2019.
\257\U.S. Const., art. II, Sec. 2, cl. 2.
\258\Medellin v. Texas, 552 U.S. 491, 511 (2008).
\259\Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015).
\260\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635
(1952) (Jackson, J., concurring).
---------------------------------------------------------------------------
Accordingly, where the President uses his foreign affairs
power in ways that betray the national interest for his own
benefit, or harm national security for equally corrupt reasons,
he is subject to impeachment by the House. Any claims to the
contrary would horrify the Framers. A President who perverts
his role as chief diplomat to serve private rather than public
ends has unquestionably engaged in ``high Crimes and
Misdemeanors''--especially if he invited, rather than opposed,
foreign interference in our politics.
3. Corruption of Office or Elections
As should now be clear, the Framers feared corruption most
of all, in its many and shifting manifestations. It was
corruption that led to abuse of power and betrayal of the
Nation. It was corruption that ruined empires, debased Britain,
and menaced American freedom. The Framers saw no shortage of
threats to the Republic, and fought valiantly to guard against
them, ``but the big fear underlying all the small fears was
whether they'd be able to control corruption.''\261\ This was
not just a matter of thwarting bribes and extortion; it was a
far greater challenge. The Framers aimed to build a country in
which officials would not use public power for personal
benefits, disregarding the public good in pursuit of their own
advancement. This virtuous principle applied with special force
to the Presidency. As Madison emphasized, because the
Presidency ``was to be administered by a single man,'' his
corruption ``might be fatal to the Republic.''\262\
---------------------------------------------------------------------------
\261\Teachout, Corruption in America at 57.
\262\Jonathan Elliot ed., Debates on the Adoption of the Federal
Constitution in the Convention Held at Philadelphia, in 1787 341 (1861)
(hereinafter ``Debates on the Adoption of the Federal Constitution'').
---------------------------------------------------------------------------
The Framers therefore sought to ensure that ``corruption
was more effectually guarded against, in the manner this
government was constituted, than in any other that had ever
been formed.''\263\ Impeachment was central to that plan. At
one point the Convention even provisionally adopted ``treason,
bribery, or corruption'' as the standard for impeaching a
President. And no fewer than four delegates--Morris, Madison,
Mason, and Randolph--listed corruption as a reason why
Presidents must be subject to removal. That understanding
followed from history: ``One invariable theme in [centuries] of
Anglo-American impeachment practice has been corruption.''\264\
Treason posed a threat of swift national extinction, but the
steady rot of corruption could destroy us from within.
Presidents who succumbed to that instinct, serving themselves
at the Nation's expense, forfeited the public trust.
---------------------------------------------------------------------------
\263\4 Elliot, Debates in the Several State Conventions at 302.
\264\Bowman, High Crimes & Misdemeanors at 277.
---------------------------------------------------------------------------
Impeachment was seen as especially necessary for
Presidential conduct corrupting our system of political self-
government. That concern arose in two contexts: the risk that
Presidents would be swayed to prioritize foreign over domestic
interests, and the risk that they would place their personal
interest in re-election above our abiding commitment to
democracy. The need for impeachment peaks where both threats
converge at once.
First was the risk that foreign royals would use wealth,
power, and titles to seduce American officials. This was not a
hypothetical problem. Just a few years earlier, and consistent
with European custom, King Louis XVI of France had bestowed on
Benjamin Franklin (in his capacity as American emissary) a
snuff box decorated with 408 diamonds ``of a beautiful
water.''\265\ Magnificent gifts like this one could
unconsciously shape how American officials carried out their
duties. To guard against that peril, the Framers adopted the
Foreign Emoluments Clause, which prohibits Presidents--among
other federal officials--from accepting ``any present,
Emolument, Office, or Title, of any kind whatever, from any
King, Prince, or foreign State'' unless Congress affirmatively
consents.\266\
---------------------------------------------------------------------------
\265\Teachout, Corruption in America at 1.
\266\U.S. Const., art. I, Sec. 9, cl. 8.
---------------------------------------------------------------------------
The theory of the Foreign Emoluments Clause, based in
history and the Framers' lived experience, ``is that a federal
officeholder who receives something of value from a foreign
power can be imperceptibly induced to compromise what the
Constitution insists be his exclusive loyalty: the best
interest of the United States of America.''\267\ Rather than
scrutinize every exchange for potential bribery, the Framers
simply banned officials from receiving anything of value from
foreign powers. Although this rule sweeps broadly, the Framers
deemed it central to American self-governance. Speaking in
Philadelphia, Charles Pinckney ``urged the necessity of
preserving foreign ministers, and other officers of the United
States, independent of external influence.''\268\ At Virginia's
convention, Randolph elaborated that ``[i]t was thought proper,
in order to exclude corruption and foreign influence, to
prohibit any one in office from receiving or holding any
emoluments from foreign states.''\269\ Randolph added that if
the President violated the Clause, ``he may be
impeached.''\270\
---------------------------------------------------------------------------
\267\Norman L. Eisen, Richard Painter & Laurence H. Tribe, The
Emoluments Clause: Its Text, Meaning, And Application To Donald J.
Trump, Brookings, Dec. 16, 2016.
\268\Elliot, Debates on the Adoption of the Federal Constitution at
467.
\269\3 Elliot, Debates in the Several State Conventions at 465.
\270\Id. at 201.
---------------------------------------------------------------------------
The Framers also anticipated impeachment if a President
placed his own interest in retaining power above the national
interest in free and fair elections. Several delegates were
explicit on this point when the topic arose at the
Constitutional Convention. By then, the Framers had created the
Electoral College. They were ``satisfied with it as a tool for
picking presidents but feared that individual electors might be
intimidated or corrupted.''\271\ Impeachment was their answer.
William Davie led off the discussion, warning that a President
who abused his office might seek to escape accountability by
interfering with elections, sparing ``no efforts or means
whatever to get himself re-elected.''\272\ Rendering the
President ``impeachable whilst in office'' was thus ``an
essential security for the good behaviour of the
Executive.''\273\ The Constitution thereby ensured that corrupt
Presidents could not avoid justice by subverting elections and
remaining in office.
---------------------------------------------------------------------------
\271\Tribe & Matz, To End A Presidency at 4.
\272\2 Farrand, Records of the Federal Convention at 64.
\273\Id.
---------------------------------------------------------------------------
George Mason built on Davie's position, directing attention
to the Electoral College: ``One objection agst. Electors was
the danger of their being corrupted by the Candidates; & this
furnished a peculiar reason in favor of impeachments whilst in
office. Shall the man who has practised corruption & by that
means procured his appointment in the first instance, be
suffered to escape punishment, by repeating his guilt?''\274\
Mason's concern was straightforward. He feared that Presidents
would win election by improperly influencing members of the
Electoral College (e.g., by offering them bribes). If evidence
of such wrongdoing came to light, it would be unthinkable to
leave the President in office--especially given that he might
seek to avoid punishment by corrupting the next election. In
that circumstance, Mason concluded, the President should face
impeachment and removal under the Constitution. Notably, Mason
was not alone in this view. Speaking just a short while later,
Gouverneur Morris emphatically agreed that ``the Executive
ought therefore to be impeachable for . . . Corrupting his
electors.''\275\ Although not articulated expressly, it is
reasonable to infer that the concerns raised by Davie, Mason,
and Morris were especially salient because the Constitution--
until ratification of the Twenty-Second Amendment in 1951--did
not limit the number of terms a President could serve in
office.\276\ A President who twisted or sabotaged the electoral
process could rule for life, much like a king.
---------------------------------------------------------------------------
\274\Id. at 65.
\275\Id. at 69.
\276\U.S. Const. Amend. XXII.
---------------------------------------------------------------------------
This commitment to impeaching Presidents who corruptly
interfered with elections was anchored in lessons from British
rule. As historian Gordon Wood writes, ``[t]hroughout the
eighteenth century the Crown had slyly avoided the blunt and
clumsy instrument of prerogative, and instead had resorted to
influencing the electoral process and the representatives in
Parliament in order to gain its treacherous ends.''\277\ In his
influential Second Treatise on Civil Government, John Locke
blasted such manipulation, warning that it serves to ``cut up
the government by the roots, and poison the very fountain of
public security.''\278\ Channeling Locke, American
revolutionaries vehemently objected to King George III's
electoral shenanigans; ultimately, they listed several
election-related charges in the Declaration of Independence.
Those who wrote our Constitution knew, and feared, that the
chief executive could threaten their plan of government by
corrupting elections.
---------------------------------------------------------------------------
\277\Wood, The Creation of the American Republic at 33.
\278\John Locke, Second Treatise of Government 112 (C.B. Macpherson
ed. 1980).
---------------------------------------------------------------------------
The true nature of this threat is its rejection of
government by ``We the People,'' who would ``ordain and
establish'' the Constitution.\279\ The beating heart of the
Framers' project was a commitment to popular sovereignty. At a
time when ``democratic self-government existed almost nowhere
on earth,''\280\ the Framers imagined a society ``where the
true principles of representation are understood and practised,
and where all authority flows from, and returns at stated
periods to, the people.''\281\ That would be possible only if
``those entrusted with [power] should be kept in dependence on
the people.''\282\ This is why the President, and Members of
Congress, must stand before the public for re-election on fixed
terms. It is through free and fair elections that the American
people protect their right to self-government, a right
unforgivably denied to many as the Constitution was ratified in
1788 but now extended to all American citizens over the age of
18. When the President concludes that elections threaten his
continued grasp on power, and therefore seeks to corrupt or
interfere with them, he denies the very premise of our
constitutional system. The American people choose their
leaders; a President who wields power to destroy opponents or
manipulate elections is a President who rejects democracy
itself.
---------------------------------------------------------------------------
\279\U.S. Const. Pmbl.
\280\Amar, America's Constitution at 8.
\281\4 Elliot, Debates in the Several State Conventions at 331; see
also James Madison, Federalist No. 14.
\282\James Madison, Federalist No. 37 at 268.
---------------------------------------------------------------------------
In sum, the Framers discussed the risk that Presidents
would improperly conspire with foreign nations; they also
discussed the risk that Presidents would place their interest
in retaining power above the integrity of our elections. Both
offenses, in their view, called for impeachment. That is doubly
true where a President conspires with a foreign power to
manipulate elections to his benefit--conduct that betrays
American self-governance and joins the Framers' worst
nightmares into a single impeachable offense.\283\
---------------------------------------------------------------------------
\283\In fact, the Framers were so concerned about improper foreign
influence in the Presidency that they restricted that position to
natural born citizens. U.S. Const. art. II, Sec. 1. As one commentator
observed, ``Considering the greatness of the trust, and that this
department is the ultimately efficient power in government, these
restrictions will not appear altogether useless or unimportant. As the
President is required to be a native citizen of the United States,
ambitious foreigners cannot intrigue for the office, and the
qualification of birth cuts off all those inducements from abroad to
corruption, negotiation, and war, which have frequently and fatally
harassed the elective monarchies of Germany and Poland, as well as the
pontificate at Rome.'' 1 James Kent, Commentaries on American Law 255
(1826).
---------------------------------------------------------------------------
D. CONCLUSION
Writing in 1833, Justice Joseph Story remarked that
impeachable offenses ``are of so various and complex a
character'' that it would be ``almost absurd'' to attempt a
comprehensive list.\284\ Consistent with Justice Story's
wisdom, ``the House has never, in any impeachment inquiry or
proceeding, adopted either a comprehensive definition of `high
Crimes and Misdemeanors' or a catalog of offenses that are
impeachable.''\285\ Rather than engage in abstract, advisory or
hypothetical debates about the precise nature of conduct that
calls for the exercise of its constitutional powers, the House
has awaited a ``full development of the facts.''\286\ Only then
has it weighed articles of impeachment.
---------------------------------------------------------------------------
\284\2 Story, Commentaries at 264.
\285\1998 Background and History of Impeachment Hearing at 2.
\286\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 2.
---------------------------------------------------------------------------
In making such judgments, however, each Member of the House
has sworn an oath to follow the Constitution, which sets forth
a legal standard governing when Presidential conduct warrants
impeachment. That standard has three main parts.
First, as Mason explained just before proposing ``high
Crimes and Misdemeanors'' as the basis for impeachment, the
President's conduct must constitute a ``great and dangerous
offense'' against the Nation. The Constitution itself offers us
two examples: ``Treason'' and ``Bribery.'' In identifying
``other'' offenses of the same kind, we are guided by
Parliamentary and early American practice, records from the
Constitutional Convention and state ratifying conventions, and
insights from the Constitution's text and structure. These
sources prove that ``high Crimes and Misdemeanors'' involve
misconduct that subverts and injures constitutional governance.
Core instances of such misconduct by the President are serious
abuse of power, betrayal of the national interest through
foreign entanglements, and corruption of office and elections.
The Framers included an impeachment power in the Constitution
specifically to protect the Nation against these forms of
wrongdoing.
Past practice of the House further illuminates the idea of
a ``great and dangerous offense.'' President Nixon's case is
most helpful. There, as explained above, the House Judiciary
Committee approved articles of impeachment on three grounds:
(1) obstruction of an ongoing law enforcement investigation
into unlawful acts by his presidential re-election campaign;
(2) abuse of power in targeting his perceived political
opponents; and (3) improper obstruction of a Congressional
impeachment inquiry into his obstruction of justice and abuse
of power. These articles of impeachment, moreover, were not
confined to discrete acts. Each of them accused President Nixon
of undertaking a course of conduct or scheme, and each of them
supported that accusation with a list of discrete acts alleged
to comprise and demonstrate the overarching impeachable
offense.\287\ Thus, where a President engages in a course of
conduct involving serious abuse of power, betrayal of the
national interest through foreign entanglements, or corruption
of office and elections, impeachment is justified.
---------------------------------------------------------------------------
\287\Consistent with that understanding, one scholar remarks that
it is the ``repetition, pattern, [and] coherence'' of official
misconduct that ``tend to establish the requisite degree of seriousness
warranting the removal of a president from office.'' John Labovitz,
Presidential Impeachment 129-130 (1978); see also, e.g., McGinnis,
Impeachment at 659 (``[I]t has been well understood that the official's
course of conduct as a whole should be the subject of judgment.'');
Debate On Articles Of Impeachment: Hearing before the H. Comm. On the
Judiciary, 93rd Cong. (1974) (hereinafter ``Debate on Nixon Articles of
Impeachment (1974)'') (addressing the issue repeatedly from July 24,
1974 to July 30, 1974).
---------------------------------------------------------------------------
Second, impeachable offenses involve wrongdoing that reveal
the President as a continuing threat to the constitutional
system if he is allowed to remain in a position of political
power. As Iredell remarked, impeachment does not exist for a
``mistake.''\288\ That is why the Framers rejected
``maladministration'' as a basis for impeachment, and it is why
``high Crimes and Misdemeanors'' are not simply unwise,
unpopular, or unconsidered acts. Like ``Treason'' and
``Bribery,'' they reflect decisions by the President to embark
on a course of conduct--or to act with motives--inconsistent
with our plan of government. Where the President makes such a
decision, Congress may remove him to protect the Constitution,
especially if there is reason to think that he will commit
additional offenses if left in office (e.g., statements by the
President that he did nothing wrong and would do it all again).
This forward-looking perspective follows from the limited
consequences of impeachment. The question is not whether to
punish the President; that decision is left to the criminal
justice system. Instead, the ultimate question is whether to
bring an early end to his four-year electoral term. In his
analysis of the Constitution, Alexis de Tocqueville thus saw
impeachment as ``a preventive measure'' which exists ``to
deprive the ill-disposed citizen of an authority which he has
used amiss, and to prevent him from ever acquiring it
again.''\289\ That is particularly true when the President
injures the Nation's interests as part of a scheme to obtain
personal benefits; someone so corrupt will again act corruptly.
---------------------------------------------------------------------------
\288\Sunstein, Impeachment at 59.
\289\Alexis de Tocqueville, Democracy in America and Two Essays on
America 124-30 (2003).
---------------------------------------------------------------------------
Finally, ``high Crimes and Misdemeanors'' involve conduct
that is recognizably wrong to a reasonable person. This
principle resolves a potential tension in the Constitution. On
the one hand, the Framers adopted a standard for impeachment
that could stand the test of time. On the other hand, the
structure of the Constitution--including its prohibition on
bills of attainder and the Ex Post Facto Clause--implies that
impeachable offenses should not come as a surprise.\290\
Impeachment is aimed at Presidents who believe they are above
the law, and who believe their own interests transcend those of
the country and Constitution. Of course, as President Nixon
proved, Presidents who have committed impeachable offenses may
seek to confuse the public through manufactured ambiguity and
crafty pretexts. That does not shield their misconduct from
impeachment. The principle of a plainly wrong act is not about
academic technicalities; it simply focuses impeachment on
conduct that any person of honor would recognize as wrong under
the Constitution.
---------------------------------------------------------------------------
\290\See Black & Bobbitt, Impeachment at 29-30.
---------------------------------------------------------------------------
To summarize: Like ``Treason'' and ``Bribery,'' and
consistent with the offenses historically considered by
Parliament to warrant impeachment, ``high Crimes and
Misdemeanors'' are great and dangerous offenses that injure the
constitutional system. Such offenses are defined mainly by
abuse of power, betrayal of the national interest through
foreign entanglements, and corruption of office and elections.
In addition, impeachable offenses arise from wrongdoing that
reveals the President as a continuing threat to the
constitutional system if allowed to remain in a position of
power. Finally, they involve conduct that reasonable officials
would consider to be wrong in our democracy.
Within these parameters, and guided by fidelity to the
Constitution, the House must judge whether the President's
misconduct is grave enough to require impeachment. That step
must never be taken lightly. It is a momentous act, justified
only when the President's full course of conduct, assessed
without favor or prejudice, is ``seriously incompatible with
either the constitutional form and principles of our government
or the proper performance of constitutional duties of the
presidential office.''\291\ When that standard is met, however,
the Constitution calls the House to action. In such cases, a
decision not to impeach has grave consequences and sets an
ominous precedent. As Representative William Cohen remarked in
President Nixon's case, ``It also has been said to me that even
if Mr. Nixon did commit these offenses, every other President .
. . has engaged in some of the same conduct, at least to some
degree, but the answer I think is that democracy, that solid
rock of our system, may be eroded away by degree and its
survival will be determined by the degree to which we will
tolerate those silent and subtle subversions that absorb it
slowly into the rule of a few.''\292\
---------------------------------------------------------------------------
\291\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 27.
\292\Debate on Nixon Articles of Impeachment (1974) at 79.
---------------------------------------------------------------------------
V. The Criminality Issue
It is occasionally suggested that Presidents can be
impeached only if they have committed crimes. That position was
rejected in President Nixon's case, and then rejected again in
President Clinton's, and should be rejected once more.\293\
---------------------------------------------------------------------------
\293\Impeachment of William J. Clinton, President of the United
States: Report of the H. Comm. on the Judiciary, H. Rep. No. 105-830 at
64 (1998) (hereinafter ``Committee Report on Clinton Articles of
Impeachment (1998)'') Committee Report on Clinton Articles of
Impeachment (1998) at 64 (``Although, the actions of President Clinton
do not have to rise to the level of violating the federal statute
regarding obstruction of justice in order to justify impeachment.'');
Staff Report on Constitutional Grounds for Presidential Impeachment
(1974) at 22-26.
---------------------------------------------------------------------------
Offenses against the Constitution are different in kind
than offenses against the criminal code. Some crimes, like
jaywalking, are not impeachable. Some impeachable offenses,
like abuse of power, are not crimes. Some misconduct may offend
both the Constitution and the criminal law. Impeachment and
criminality must therefore be assessed separately--even though
the commission of crimes may strengthen a case for removal.
A ``great preponderance of authority'' confirms that
impeachable offenses are ``not confined to criminal
conduct.''\294\ This authority includes nearly every legal
scholar to have studied the issue, as well as multiple Supreme
Court justices who addressed it in public remarks.\295\ More
important, the House itself has long treated ``high Crimes and
Misdemeanors'' as distinct from crimes subject to indictment.
That understanding follows from the Constitution's history,
text, and structure, and reflects the absurdities and practical
difficulties that would result were the impeachment power
confined to indictable crimes.
---------------------------------------------------------------------------
\294\Berger, Impeachment at 58.
\295\See, e.g., Black & Bobbitt, Impeachment at 33-37, 559-565;
Bowman, High Crimes and Misdemeanors at 244-252; Tribe & Matz, To End A
Presidency at 43-53; Sunstein, Impeachment at 117-134; Amar, America's
Constitution at 200-20; Charles J. Cooper, A Perjurer in the White
House?: The Constitutional Case for Perjury and Obstruction of Justice
as High Crimes and Misdemeanors, 22 Harv. J. L. & Pub. Pol'y 619, 620
(1998-1999); Michael J. Gerhardt, The Federal Impeachment Process: A
Constitutional and Historical Analysis 105-113 (2019); Berger,
Impeachment at 58 (collecting sources); Merrill Otis, A Proposed
Tribunal: Is It Constitutional?, 7 Kan. City. L. Rev. 3, 22 (1938)
(quoting Chief Justice Taft); Charles E. Hughes, The Supreme Court of
the United States 19 (1928); 2 Henry Adams, History of the United
States of America 223 (1962).
---------------------------------------------------------------------------
A. HISTORY
``If there is one point established by . . . Anglo-American
impeachment practice, it is that the phrase `high Crimes and
Misdemeanors'' is not limited to indictable crimes.''\296\ As
recounted above, impeachment was conceived in Parliament as a
method for controlling abusive royal ministers. Consistent with
that purpose, it was not confined to accusations of criminal
wrongdoing. Instead, it was applied to ``many offenses, not
easily definable by law,'' such as abuse of power, betrayal of
national security, corruption, neglect of duty, and violating
Parliament's constitutional prerogatives.\297\ Many officials
were impeached for non-criminal wrongs against the British
system of government; notable examples include the Duke of
Buckingham (1626), the Earl of Strafford (1640), the Lord Mayor
of London (1642), the Earl of Orford and others (1701), and
Governor General Warren Hastings (1787).\298\ Across centuries
of use, the phrase ``high Crimes and Misdemeanors'' thus
assumed a ``special historical meaning different from the
ordinary meaning of the terms `crimes' and
`misdemeanors.'''\299\ It became a term of art confined to
impeachments, without ``relation to whether an indictment would
lie in the particular circumstances.''\300\
---------------------------------------------------------------------------
\296\Bowman, High Crimes and Misdemeanors at 44.
\297\2 Story, Commentaries at 268.
\298\See Bowman, High Crimes and Misdemeanors at 44-47.
\299\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 22.
\300\Berger, Impeachment at 62.
---------------------------------------------------------------------------
That understanding extended to North America. Here, the
impeachment process was used to address diverse misconduct by
public officials, ranging from abuse of power and corruption to
bribery and betrayal of the revolutionary cause.\301\ As one
scholar reports, ``American colonists before the Revolution,
and American states after the Revolution but before 1787, all
impeached officials for non-criminal conduct.''\302\
---------------------------------------------------------------------------
\301\Hoffer & Hull, Impeachment in America at 1-95.
\302\Bowman, High Crimes and Misdemeanors at 244.
---------------------------------------------------------------------------
At the Constitutional Convention itself, no delegate linked
impeachment to the technicalities of criminal law. On the
contrary, the Framers invoked an array of broad, adaptable
terms as grounds for removal--and when the standard was
temporarily narrowed to ``treason, or bribery,'' Mason objected
that it must reach ``great and dangerous'' offenses against the
Constitution. Here he cited Burke's call to impeach Hastings,
whose acts were not crimes, but instead violated ``those
eternal laws of justice, which are our rule and our
birthright.''\303\ To the Framers, impeachment was about abuse
of power, betrayal of nation, and corruption of office and
elections. It was meant to guard against these threats in every
manifestation--known and unknown--that might someday afflict
the Republic.
---------------------------------------------------------------------------
\303\Edmund Burke, Reflections on the Revolution in France and
Other Writings 409 (2015).
---------------------------------------------------------------------------
That view appeared repeatedly in the state ratifying
debates. Delegates opined that the President could be impeached
if he ``deviates from his duty'' or ``dare[s] to abuse the
power vested in him by the people.''\304\ In North Carolina,
Iredell noted that ``the person convicted [in an impeachment
proceeding] is further liable to a trial at common law, and may
receive such common-law punishment . . . if it be punishable by
that law'' (emphasis added).\305\ Similarly, in Virginia,
George Nicholas declared that the President ``will be
absolutely disqualified [by impeachment] to hold any place of
profit, honor, or trust, and liable to further punishment if he
has committed such high crimes as are punishable at common
law'' (emphasis added).\306\ The premise underlying this
statement--and Iredell's--is that some Presidential ``high
Crimes and Misdemeanors'' were not punishable by common law.
---------------------------------------------------------------------------
\304\Quoted in Michael J. Gerhardt, Impeachment: What Everyone
Needs to Know 60 (2018).
\305\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 23.
\306\Id.
---------------------------------------------------------------------------
Leading minds echoed that position through the Nation's
early years. In Federalist No. 65, Hamilton argued that
impeachable offenses are defined by ``the abuse or violation of
some public trust.''\307\ In that sense, he reasoned, ``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.''\308\ A few years later,
Constitutional Convention delegate James Wilson reiterated
Hamilton's point: ``Impeachments, and offences and offenders
impeachable, come not . . . within the sphere of ordinary
jurisprudence. They are founded on different principles, are
governed by different maxims, and are directed to different
objects.''\309\ Writing in 1829, William Rawle described
impeachment as reserved for ``men whose treachery to their
country might be productive of the most serious
disasters.''\310\ Four years later, Justice Story emphasized
that impeachable offenses ordinarily ``must be examined upon
very broad and comprehensive principles of public policy and
duty.''\311\
---------------------------------------------------------------------------
\307\Alexander Hamilton, Federalist No. 65 at 426.
\308\Id.
\309\James Wilson, Collected Works of James Wilson 736 (Kermit L.
Hall and Mark David Hall ed. 2007).
\310\William Rawle, A View of the Constitution of the United States
of America 218 (1829).
\311\2 Story, Commentaries at 234.
---------------------------------------------------------------------------
The American experience with impeachment confirms that
lesson. A strong majority of the impeachments voted by the
House since 1789 have included ``one or more allegations that
did not charge a violation of criminal law.''\312\ Several
officials, moreover, have subsequently been convicted on non-
criminal articles of impeachment. For example, Judge Robert
Archbald was removed in 1912 for non-criminal speculation in
coal properties, and Judge Halsted Ritter was removed in 1936
for the non-criminal offense of bringing his court ``into
scandal and disrepute.''\313\ As House Judiciary Committee
Chairman Hatton Sumners stated explicitly during Judge Ritter's
case, ``We do not assume the responsibility . . . of proving
that the respondent is guilty of a crime as that term is known
to criminal jurisprudence.''\314\ The House has also applied
that principle in Presidential impeachments. Although President
Nixon resigned before the House could consider the articles of
impeachment against him, the Judiciary Committee's allegations
encompassed many non-criminal acts.\315\ And in President
Clinton's case, the Judiciary Committee report accompanying
articles of impeachment to the House floor stated that ``the
actions of President Clinton do not have to rise to the level
of violating the federal statute regarding obstruction of
justice in order to justify impeachment.''\316\
---------------------------------------------------------------------------
\312\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 24.
\313\Report of the Committee on the Judiciary, Robert W. Archbald,
Judge of the United States Commerce Court, H. Rep. No. 62-946 (1912);
H. Res. 422, 74th Cong. (1936).
\314\Berger, Impeachment at 60.
\315\See generally Committee Report on Nixon Articles of
Impeachment (1974).
\316\Committee Report on Clinton Articles of Impeachment (1998) at
66.
---------------------------------------------------------------------------
History thus affords exceptionally clear and consistent
evidence that impeachable ``high Crimes and Misdemeanors'' are
not limited to violations of the criminal code.
B. CONSTITUTIONAL TEXT AND STRUCTURE
That historical conclusion is bolstered by the text and
structure of the Constitution. Starting with the text, we must
assign weight to use of the word ``high.'' That is true not
only because ``high Crimes and Misdemeanors'' was a term of art
with its own history, but also because ``high'' connotes an
offense against the State itself. Thus, ``high'' treason in
Britain was an offense against the Crown, whereas ``petit''
treason was the betrayal of a superior by a subordinate. The
Framers were aware of this when they incorporated ``high'' as a
limitation on impeachable offenses, signifying only
constitutional wrongs.
That choice is particularly noteworthy because the Framers
elsewhere referred to ``crimes,'' ``offenses,'' and
``punishment'' without using this modifier--and so we know
``the Framers knew how to denote ordinary crimes when they
wanted to do so.''\317\ For example, the Fifth Amendment
requires a grand jury indictment in cases of a ``capital, or
otherwise infamous crime.''\318\ The Currency Clause, in turn,
empowers Congress to ``provide for the Punishment of
counterfeiting the Securities and current Coin of the United
States.''\319\ The Law of Nations Clause authorizes Congress to
``define and punish Piracies and Felonies committed on the high
Seas, and Offenses against the Law of Nations.''\320\ And the
Interstate Extradition Clause provides that ``[a] Person
charged in any State with Treason, Felony, or other Crime'' who
flees from one state to another shall be returned upon
request.\321\ Only in the Impeachment Clause did the Framers
refer to ``high'' crimes. By adding ``high'' in this one
provision, while excluding it everywhere else, the Framers
plainly sought to capture a distinct category of offenses
against the state.\322\
---------------------------------------------------------------------------
\317\Tribe & Matz, To End a Presidency at 40.
\318\U.S. Const. amend. V, Sec. 1.
\319\U.S. Const. art. I, Sec. 8, cl. 6.
\320\U.S. Const. art. I, Sec. 8, cl. 10.
\321\U.S. Const. art. IV, Sec. 2, cl. 2.
\322\One might object that since ``Treason'' and ``Bribery'' are
indictable crimes, the same must be true of ``other high Crimes and
Misdemeanors.'' But this argument would fail. Although it is true that
``other high Crimes and Misdemeanors'' share certain characteristics
with ``Treason'' and ``Bribery,'' the key question is which
characteristics unify them. And for all the reasons given here, it is
wrong to conclude that criminality is the unifying principle of
impeachable offenses. Moreover, if the Framers' goal was to limit
impeachment to violations of the criminal law, it is passing strange
that the Impeachment Clause uses a term of art--``high Crimes and
Misdemeanors''--that appears neither in the criminal law itself nor
anywhere else in the Constitution (which does elsewhere refer both to
``crimes'' and ``offenses''). It would have been easy to write a
provision limiting the impeachment power to serious crimes, and yet the
Framers pointedly did not do so.
---------------------------------------------------------------------------
That interpretation is also most consistent with the
structure of the Constitution. This is true in three respects.
First, as explained above, the Impeachment Clause restricts
the consequences of impeachment to removal from office and
disqualification from future federal officeholding. That speaks
to the fundamental character of impeachment. In Justice Story's
words, it is ``a proceeding purely of a political nature. It is
not so much designed to punish an offender, as to secure the
state against gross official misdemeanors. It touches neither
his person, nor his property; but simply divests him of his
political capacity.''\323\ Given that impeachment exists to
address threats to the political system, applies only to
political officials, and responds only by stripping political
power, it makes sense to infer that ``high Crimes and
Misdemeanors'' are offenses against the political system rather
than indictable crimes.
---------------------------------------------------------------------------
\323\2 Story, Commentaries at 272.
---------------------------------------------------------------------------
Second, if impeachment were restricted to crimes,
impeachment proceedings would be restricted to deciding whether
the President had committed a specific crime. Such a view would
create tension between the Impeachment Clause and other
provisions of the Constitution. For example, the Double
Jeopardy Clause protects against being tried twice for the same
crime. Yet the Impeachment Clause contemplates that an
official, once removed, can still face ``Indictment, Trial,
Judgment and Punishment, according to Law.'' It would be
strange if the Framers forbade double jeopardy, yet allowed the
President to be tried in court for crimes after Congress
convicted him in a proceeding that necessarily (and
exclusively) decided whether he was guilty of those very same
crimes.\324\ That oddity is avoided only if impeachment
proceedings are seen ``in noncriminal terms,'' which occurs if
impeachable offenses are understood as distinct from indictable
crimes.\325\
---------------------------------------------------------------------------
\324\See Berger, Impeachment at 80.
\325\Id.
---------------------------------------------------------------------------
Finally, the Constitution was originally understood as
limiting Congress's power to create a federal law of crimes. It
would therefore be strange if the Framers restricted
impeachment to criminal offenses, while denying Congress the
ability to criminalize many forms of Presidential wrongdoing
that they repeatedly described as requiring impeachment.
To set this point in context, the Constitution expressly
authorizes Congress to criminalize only a handful of wrongful
acts: ``counterfeiting, piracy, `offenses against the law of
nations,' and crimes that occur within the military.''\326\
Early Congresses did not tread far beyond that core category of
crimes, and the Supreme Court took a narrow view of federal
power to pass criminal statutes. It was not until much later--
in the twentieth century--that the Supreme Court came to
recognize that Congress could enact a broader criminal code. As
a result, early federal criminal statutes ``covered relatively
few categories of offenses.''\327\ Many federal offenses were
punishable only when committed ``in special places, and within
peculiar jurisdictions, as, for instance, on the high seas, or
in forts, navy-yards, and arsenals ceded to the United
States.''\328\
---------------------------------------------------------------------------
\326\William J. Stuntz, The Collapse of American Criminal Justice
99 (2011).
\327\Tribe & Matz, To End a Presidency at 48.
\328\2 Story, Commentaries at 264.
---------------------------------------------------------------------------
The Framers were not fools. They authorized impeachment for
a reason, and that reason would have been gutted if impeachment
were limited to crimes. It is possible, of course, that the
Framers thought the common law, rather than federal statutes,
would define criminal offenses. That is undeniably true of
``Bribery'': the Framers saw this impeachable offense as
defined by the common law of bribery as it was understood at
the time. But it is hard to believe that the Framers saw common
law as the sole measure of impeachment. For one thing, the
common law did not address itself to many wrongs that could be
committed uniquely by the President in our republican system.
The common law would thus have been an extremely ineffective
tool for achieving the Framers' stated purposes in authorizing
impeachment. Moreover, the Supreme Court held in 1812 that
there is no federal common law of crimes.\329\ If the Framers
thought only crimes could be impeachable offenses, and hoped
common law would describe the relevant crimes, then they made a
tragic mistake--and the Supreme Court's 1812 decision ruined
their plans for the impeachment power.\330\
---------------------------------------------------------------------------
\329\United States v. Hudson and Goodwin, 11 U.S. 32 (1812).
\330\In the alternative, one might say that ``high Crimes and
Misdemeanors'' occur when the president violates state criminal law.
But that turns federalism upside down: invoking state criminal codes to
supply the content of the federal Impeachment Clause would grant states
a bizarre and incongruous primacy in the constitutional system.
Especially given that impeachment is crucial to checks and balances
within the federal government, it would be nonsensical for states to
effectively control when this power may be wielded by Congress.
---------------------------------------------------------------------------
Rather than assume the Framers wrote a Constitution full of
empty words and internal contradictions, it makes far more
sense to agree with Hamilton that impeachment is not about
crimes. The better view, which the House itself has long
embraced, confirms that impeachment targets offenses against
the Constitution that threaten democracy.\331\
---------------------------------------------------------------------------
\331\Article III of the Constitution provides that ``the Trial of
all Crimes, except in Cases of Impeachment, shall be by Jury.'' Article
III, Sec. 2. This provision recognizes that impeachable conduct may
entail criminal conduct--and clarifies that in such cases, the trial of
an impeachment still occurs in the Senate, not by jury.
---------------------------------------------------------------------------
C. THE PURPOSE OF IMPEACHMENT
The distinction between impeachable offenses and crimes
also follows from the fundamentally different purposes that
impeachment and the criminal law serve. At bottom, the
impeachment power is ``the first step in a remedial process--
removal from office and possible disqualification from holding
future office.''\332\ It exists ``primarily to maintain
constitutional government'' and is addressed exclusively to
abuses perpetrated by federal officeholders.\333\ It is through
impeachment proceedings that ``a President is called to account
for abusing powers that only a President possesses.''\334\ The
criminal law, in contrast, ``sets a general standard of conduct
that all must follow.''\335\ It applies to all persons within
its compass and ordinarily defines acts forbidden to everyone;
in our legal tradition, the criminal code ``does not address
itself [expressly] to the abuses of presidential power.''\336\
---------------------------------------------------------------------------
\332\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 24.
\333\Id.
\334\Id.
\335\Id.
\336\Id.
---------------------------------------------------------------------------
Indeed, ``the early Congresses--filled with Framers--didn't
even try to create a body of criminal law addressing many of
the specific abuses that motivated adoption of the Impeachment
Clause in the first place.''\337\ This partly reflects ``a
tacit judgment that it [did] not deem such a code
necessary.''\338\ But that is not the only explanation. The
Constitution vests ``the sole Power of Impeachment'' in the
House; it is therefore doubtful that a statute enacted by one
Congress (and signed by the President) could bind the House at
a later date.\339\ Moreover, any such effort to define and
criminalize all impeachable offenses would quickly run aground.
As Justice Story cautioned, impeachable offenses ``are of so
various and complex a character, so utterly incapable of being
defined, or classified, that the task of positive legislation
would be impracticable, if it were not almost absurd to attempt
it.''\340\
---------------------------------------------------------------------------
\337\Tribe & Matz, To End a Presidency at 48-49.
\338\Berger, Impeachment at 78.
\339\Committee Report on Nixon Articles of Impeachment (1974) at
25.
\340\2 Story, Commentaries at 264.
---------------------------------------------------------------------------
There are also general characteristics of the criminal law
that make criminality inappropriate as an essential element of
impeachable conduct. For example, criminal law traditionally
forbids acts, rather than failures to act, yet impeachable
conduct ``may include the serious failure to discharge the
affirmative duties imposed on the President by the
Constitution.''\341\ In addition, unlike a criminal case
focused on very specific conduct and nothing else, a
Congressional impeachment proceeding may properly consider a
broader course of conduct or scheme that tends to subvert
constitutional government.\342\ Finally, the application of
general criminal statutes to the President may raise
constitutional issues that have no bearing on an impeachment
proceeding, the whole point of which is to assess whether the
President has abused power in ways requiring his removal from
office.\343\
---------------------------------------------------------------------------
\341\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 24.
\342\Id. at 24-25.
\343\Special Counsel Robert S. Mueller, III, Report On The
Investigation Into Russian Interference In The 2016 Presidential
Election, Vol. II at 170-181 (March 2019).
---------------------------------------------------------------------------
For all these reasons, ``[a] requirement of criminality
would be incompatible with the intent of the framers to provide
a mechanism broad enough to maintain the integrity of
constitutional government. Impeachment is a constitutional
safety valve; to fulfill this function, it must be flexible
enough to cope with exigencies not now foreseeable.''\344\
---------------------------------------------------------------------------
\344\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974), at 25.
---------------------------------------------------------------------------
D. THE LIMITED RELEVANCE OF CRIMINALITY
As demonstrated, the President can commit ``high Crimes and
Misdemeanors'' without violating federal criminal law. ``To
conclude otherwise would be to ignore the original meaning,
purpose and history of the impeachment power; to subvert the
constitutional design of a system of checks and balances; and
to leave the nation unnecessarily vulnerable to abusive
government officials.''\345\ Yet the criminal law is not
irrelevant. ``Our criminal codes identify many terrible acts
that would surely warrant removal if committed by the chief
executive.''\346\ Moreover, the President is sworn to uphold
the law. If he violates it while grossly abusing power,
betraying the national interest through foreign entanglements,
or corrupting his office or elections, that weighs in favor of
impeaching him.
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\345\Keith E. Whittington, Must Impeachable Offenses Be Violations
of the Criminal Code?, Lawfare, Nov. 19, 2019.
\346\Tribe & Matz, To End a Presidency at 51.
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VI. Addressing Fallacies About Impeachment
Since the House began its impeachment inquiry, a number of
inaccurate claims have circulated about how impeachment works
under the Constitution. To assist the Committee in its
deliberations, we address six issues of potential relevance:
(1) the law that governs House procedures for impeachment; (2)
the law that governs the evaluation of evidence, including
where the President orders defiance of House subpoenas; (3)
whether the President can be impeached for the abuse of his
executive powers; (4) whether the President's claims regarding
his motives must be accepted at face value; (5) whether the
President is immune from impeachment if he attempts an
impeachable offense but is caught before he completes it; and
(6) whether it is preferable to await the next election when a
President has sought to corrupt that very same election.
A. THE IMPEACHMENT PROCESS
It has been argued that the House has not followed proper
procedure in its ongoing impeachment inquiry. We have
considered those arguments and find that they lack merit.
To start with first principles, the Constitution vests the
House with the ``sole Power of Impeachment.''\347\ It also
vests the House with the sole power to ``determine the Rules of
its Proceedings.''\348\ These provisions authorize the House to
investigate potential ``high Crimes and Misdemeanors,'' to
draft and debate articles of impeachment, and to establish
whatever rules and procedures it deems proper for those
proceedings.\349\
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\347\U.S. Const. art. I, Sec. 2, cl. 5.
\348\U.S. Const. art. I, Sec. 5, cl. 2.
\349\See David Pozen, Risk-Risk Tradeoffs in Presidential
Impeachment, Take Care, Jun. 6, 2018 (``Both chambers of Congress enjoy
vast discretion in how they run impeachment proceedings.'').
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When the House wields its constitutional impeachment power,
it functions like a grand jury or prosecutor: its job is to
figure out what the President did and why he did it, and then
to decide whether the President should be charged with
impeachable offenses. If the House approves any articles of
impeachment, the President is entitled to present a full
defense at trial in the Senate. It is thus in the Senate, and
not in the House, where the President might properly raise
certain protections associated with trials.\350\
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\350\Contra Letter from Pat A. Cipollone, Counsel to the President,
to Nancy Pelosi, Speaker of the House, Adam B. Schiff, Chairman, H.
Perm. Select Comm. on Intelligence, Eliot L. Engel, Chairman, H. Comm.
on Foreign Affairs, and Elijah E. Cummings, Chairman, H. Comm. on
Oversight and Reform (Oct. 8, 2019); Leader McCarthy Speech Against the
Sham Impeachment Vote, Kevin McCarthy, Republican Leader, Oct. 31,
2019.
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Starting in May 2019, the Judiciary Committee undertook an
inquiry to determine whether to recommend articles of
impeachment against President Trump. The Committee subsequently
confirmed, many times, that it was engaged in an impeachment
investigation. On June 11, 2019, the full House approved a
resolution confirming that the Judiciary Committee possessed
``any and all necessary authority under Article I of the
Constitution'' to continue its investigation; an accompanying
Rules Committee Report emphasized that the ``purposes''' of the
inquiry included ``whether to approve `articles of impeachment
with respect to the President.'''\351\ As the Judiciary
Committee continued with its investigation, evidence came to
light that President Trump may have grossly abused the power of
his office in dealings with Ukraine. At that point, the House
Permanent Select Committee on Intelligence, and the House
Oversight and Foreign Affairs Committees, began investigating
potential offenses relating to Ukraine. On September 24, 2019,
House Speaker Nancy Pelosi directed these committees, as well
as the House Judiciary, Financial Services and Ways and Means
Committees, to ``proceed with their investigations under that
umbrella of [an] impeachment inquiry.''\352\ Finally, on
October 31, 2019, the full House approved H. Res. 660, which
directed the six committees ``to continue their ongoing
investigations as part of the existing House of Representatives
inquiry into whether sufficient grounds exist for the House of
Representatives to exercise its Constitutional power to impeach
Donald John Trump, President of the United States of
America.''\353\
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\351\H. Res. 430, 116th Cong. (2019); Authorizing the Committee on
the Judiciary to Initiate or Intervene in Judicial Proceedings to
Enforce Certain Subpoenas and for Other Purposes To Accompany H. Res.
430, H. Rep. 116-108 at 21 (2019).
\352\Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing
Impeachment Inquiry, Sep. 24 2019.
\353\H. Res. 660, 116th Cong. (2019).
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This approach to investigating potential impeachable
offenses adheres to the Constitution, the Rules of the House,
and historical practice.\354\ House Committees have frequently
initiated and made substantial progress in impeachment
inquiries before the full House considered a resolution
formalizing their efforts. That is what happened in the cases
of Presidents Johnson and Nixon, as well as in many judicial
impeachments (which are subject to the same constitutional
provisions).\355\ Indeed, numerous judges have been impeached
without any prior vote of the full House authorizing a formal
inquiry.\356\ It is both customary and sensible for
committees--particularly the Judiciary Committee--to
investigate evidence of serious wrongdoing before decisions are
made by the full House.
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\354\See generally H. Rep. No. 116-108.
\355\See 3 Hinds Ch. 75 Sec. 2400 (President Johnson); 3 Deschler
Ch. 14, Sec. 15 (President Nixon); H. Rep. No. 101-36, at 13-16 (1988)
(Judge Walter Nixon); H. Res. 320, 100th Cong. (Judge Alcee Hastings);
H. Rep. No. 99-688, at 3-7 (1986) (Judge Harry Claiborne); 3 Deschler
Ch. 14 Sec. 5 (Justice William O. Douglas).
\356\See H. Res. 87, 101st Cong. (1989) (impeaching Judge Nixon);
H. Res. 499, 100th Cong. (1988) (impeaching Judge Hastings); H. Res.
461, 99th Cong. (1986) (impeaching Judge Claiborne).
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In such investigations, the House's initial task is to
gather evidence. As is true of virtually any competent
investigation, whether governmental or private, the House has
historically conducted substantial parts of the initial fact-
finding process out of public view to ensure more accurate and
complete testimony.\357\ In President Nixon's case, for
instance, only the Judiciary Committee Chairman, Ranking
Member, and Committee staff had access to material gathered by
the impeachment inquiry in its first several months.\358\ There
was no need for similar secrecy in President Clinton's case,
but only because the House did not engage in a substantial
investigation of its own; it largely adopted the facts set
forth in a report by Independent Counsel Kenneth Starr, who had
spent years investigating behind closed doors.\359\
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\357\See Tribe & Matz, To End A Presidency at 92 (``Historically,
the House and Senate have investigated through their committees . . .
Critically, although they may involve occasional public hearings, most
investigatory activities must be kept secret until they have nearly
reached an end.'').
\358\Debate on Nixon Articles of Impeachment (1974) at 86.
\359\Committee Report on Clinton Articles of Impeachment (1998) at
300.
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When grand juries and prosecutors investigate wrongdoing by
private citizens and public officials, the person under
investigation has no right to participate in the examination of
witnesses and evidence that precedes a decision on whether to
file charges. That is black letter law under the Constitution,
even in serious criminal cases that threaten loss of life or
liberty. The same is true in impeachment proceedings, which
threaten only loss of public office. Accordingly, even if the
full panoply of rights held by criminal defendants
hypothetically were to apply in the non-criminal setting of
impeachment, the President has no ``due process right'' to
interfere with, or inject himself into, the House's fact-
finding efforts. If the House ultimately approves articles of
impeachment, any rights that the President might hold are
properly secured at trial in the Senate, where he may be
afforded an opportunity to present an evidentiary defense and
test the strength of the House's case.
Although under no constitutional or other legal obligation
to do so, but consistent with historical practice, the full
House approved a resolution--H. Res. 660--that ensures
transparency, allows effective public hearings, and provides
the President with opportunities to participate. The privileges
afforded under H. Res. 660 are even greater than those provided
to Presidents Nixon and Clinton. They allow the President or
his counsel to participate in House Judiciary Committee
proceedings by presenting their case, responding to evidence,
submitting requests for additional evidence, attending hearings
(including non-public hearings), objecting to testimony, and
cross-examining witnesses. In addition, H. Res. 660 gave the
minority the same rights to question witnesses that the
majority has, as has been true at every step of this
impeachment proceeding.
The impeachment inquiry concerning President Trump has thus
complied in every respect with the Constitution, the Rules of
the House, and historic practice of the House.
B. EVIDENTIARY CONSIDERATIONS AND PRESIDENTIAL OBSTRUCTION
The House impeachment inquiry has compiled substantial
direct and circumstantial evidence bearing on the question
whether President Trump may have committed impeachable
offenses. President Trump has objected that some of this
evidence comes from witnesses lacking first-hand knowledge of
his conduct. In the same breath, though, he has ordered
witnesses with first-hand knowledge to defy House subpoenas for
testimony and documents--and has done so in a categorical,
unqualified manner. President Trump's evidentiary challenges
are misplaced as a matter of constitutional law and common
sense.
The Constitution does not prescribe rules of evidence for
impeachment proceedings in the House or Senate. Consistent with
its sole powers to impeach and to determine the rules of its
proceedings, the House is constitutionally authorized to
consider any evidence that it believes may illuminate the
issues before it. At this fact-finding stage, ``no technical
`rules of evidence' apply,'' and ``[e]vidence may come from
investigations by committee staff, from grand jury matter made
available to the committee, or from any other source.''\360\
The House may thus ``subpoena documents, call witnesses, hold
hearings, make legal determinations, and undertake any other
activities necessary to fulfill [its] mandate.''\361\ When
deciding whether to bring charges against the President, the
House is not restricted by the Constitution in deciding which
evidence to consider or how much weight to afford it.
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\360\Black & Bobbitt, Impeachment at 9.
\361\Tribe & Matz, To End a Presidency at 129.
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Indeed, were rules of evidence to apply anywhere, it would
be in the Senate, where impeachments are tried. Yet the Senate
does not treat the law of evidence as controlling at such
trials.\362\ As one scholar explains, ``rules of evidence were
elaborated primarily to hold juries within narrow limits. They
have no place in the impeachment process. Both the House and
the Senate ought to hear and consider all evidence which seems
relevant, without regard to technical rules. Senators are in
any case continually exposed to `hearsay' evidence; they cannot
be sequestered and kept away from newspapers, like a
jury.''\363\
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\362\Gerhardt, The Federal Impeachment Process at 42 (``[E]ven if
the Senate could agree on such rules for impeachment trials, they would
not be enforceable against or binding on individual senators, each of
whom traditionally has had the discretion in an impeachment trial to
follow any evidentiary standards he or she sees fit.'').
\363\Black & Bobbitt, Impeachment at 18. see also Gerhardt, The
Federal Impeachment Process at 117 (``Both state and federal courts
require special rules of evidence to make trials more efficient and
fair or to keep certain evidence away from a jury, whose members might
not understand or appreciate its reliability, credibility, or
potentially prejudicial effect.'').
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Instead of adopting abstract or inflexible rules, the House
and Senate have long relied on their common sense and good
judgment to assess evidence in impeachments. When evidence is
relevant but there is reason to question its reliability, those
considerations affect how much weight the evidence is given,
not whether it can be considered at all.
Here, the factual record is formidable and includes many
forms of highly reliable evidence. It goes without saying,
however, that the record might be more expansive if the House
had full access to the documents and testimony it has lawfully
subpoenaed from government officials. The reason the House
lacks such access is an unprecedented decision by President
Trump to order a total blockade of the House impeachment
inquiry.
In contrast, the conduct of prior chief executives
illustrates the lengths to which they complied with impeachment
inquiries. As President James Polk conceded, the ``power of the
House'' in cases of impeachment ``would penetrate into the most
secret recesses of the Executive Departments,'' and ``could
command the attendance of any and every agent of the
Government, and compel them to produce all papers, public or
private, official or unofficial, and to testify on oath to all
facts within their knowledge.''\364\ Decades later, when the
House conducted an impeachment inquiry into President Johnson,
it interviewed cabinet officials and Presidential aides,
obtained extensive records, and heard testimony about
conversations with Presidential advisors.\365\ Presidents
Grover Cleveland, Ulysses S. Grant, and Theodore Roosevelt each
confirmed that Congress could obtain otherwise-shielded
executive branch documents in an impeachment inquiry.\366\ And
in President Nixon's case--where the President's refusal to
turn over tapes led to an article of impeachment--the House
Judiciary Committee still heard testimony from his chief of
staff (H.R. Haldeman), special counsel (Charles Colson),
personal attorney (Herbert Kalmbach), and deputy assistant
(Alexander Butterfield). Indeed, with respect to the Senate
Watergate investigation, President Nixon stated: ``All members
of the White House Staff will appear voluntarily when requested
by the committee. They will testify under oath, and they will
answer fully all proper questions.''\367\ President Trump's
categorical blockade of the House impeachment inquiry has no
analogue in the history of the Republic.\368\
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\364\H.R. Jour., 29th Cong., 1st Sess. 693 (1846); 4 James D.
Richardson ed., Messages and Papers of Presidents 434-35 (1896).
\365\See generally Reports of Committees, Impeachment
Investigation, 40th Cong., 1st Sess. 183-578 (1867).
\366\See Jonathan David Shaub, The Executive's Privilege:
Rethinking the President's Power to Withhold Information, Lawfare (Oct.
31, 2019).
\367\The White House, Remarks by President Nixon (Apr. 17, 1973)
President Nixon initially stated that members of his ``personal staff''
would ``decline a request for a formal appearance before a committee of
the Congress,'' but reversed course approximately one month later., The
White House, Statement by the President, Executive Privilege (Mar. 12,
1973).
\368\See Tribe & Matz, To End A Presidency at 129 (``Congress's
investigatory powers are at their zenith in the realm of impeachment.
They should ordinarily overcome almost any claim of executive privilege
asserted by the president.'').
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As a matter of constitutional law, the House may properly
conclude that a President's obstruction of Congress is relevant
to assessing the evidentiary record in an impeachment inquiry.
For centuries, courts have recognized that ``when a party has
relevant evidence within his control which he fails to produce,
that failure gives rise to an inference that the evidence is
unfavorable to him.''\369\ Moreover, it is routine for courts
to draw adverse inferences where a party acts in bad faith to
conceal or destroy evidence or preclude witnesses from
testifying.\370\ Although those judicial rules do not control
here, they are instructive in confirming that parties who
interfere with fact-finding processes can suffer an evidentiary
sanction. Consistent with that commonsense principle, the House
has informed the administration that defiance of subpoenas at
the direction or behest of the President or the White House
could justify an adverse inference against the President. In
light of President Trump's unlawful and unqualified direction
that governmental officials violate their legal
responsibilities to Congress, as well as his pattern of witness
intimidation, the House may reasonably infer that their
testimony would be harmful to the President--or at least not
exculpatory. If this evidence were helpful to the President, he
would not break the law to keep it hidden, nor would he engage
in public acts of harassment to scare other witnesses who might
consider coming forward.\371\
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\369\Int'l Union, United Auto., Aerospace & Agr. Implement Workers
of Am. (UAW) v. N. L. R. B., 459 F.2d 1329, 1336 (D.C. Cir. 1972); see
also Interstate Circuit v. United States, 306 U.S. 208, 225-26 (1939);
Rossi v. United States, 289 U.S. 89, 91-92 (1933); Mammoth Oil Co. v.
United States, 275 U.S. 13, 51-53 (1927); Burdine v. Johnson, 262 F.3d
336, 366 (5th Cir. 2001) (collecting cases); United States v. Pitts,
918 F.2d 197, 199 (D.C. Cir. 1990) (holding that, where a missing
witness has ``so much to offer that one would expect [him] to take the
stand,'' and where ``one of the parties had some special ability to
produce him,'' the law allows an inference ``that the missing witness
would have given testimony damaging to that party'').
\370\See, e.g., Bracey v. Grondin, 712 F.3d 1012, 1018 (7th Cir.
2013); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99,
107 (2d Cir. 2002); Nation-Wide Check Corp. v. Forest Hills
Distributors, Inc., 692 F.2d 214, 217 (1st Cir. 1982); see also 2 Jones
on Evidence Sec. 13:12 & Sec. 13:15 (7th ed. 2019 update).
\371\If the President could order all Executive Branch agencies and
officials to defy House impeachment inquiries, and if the House were
unable to draw any inferences from that order with respect to the
President's alleged misconduct, the impeachment power would be a
nullity in many cases where it plainly should apply.
---------------------------------------------------------------------------
One noteworthy result of President Trump's obstruction is
that the House has been improperly denied testimony by certain
government officials who could have offered first-hand accounts
of relevant events. That does not leave the House at sea: there
is still robust evidence, both documentary and testimonial,
bearing directly on his conduct and motives. But especially
given the President's obstruction of Congress, the House is
free under the Constitution to consider reliable testimony from
officials who overheard--or later learned about--statements by
the President to witnesses whose testimony he has blocked.\372\
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\372\Under the Federal Rules of Evidence--which, again, are not
applicable in Congressional impeachment proceedings--judges sometimes
limit witnesses from offering testimony about someone else's out-of-
court statements. They do so for reasons respecting reliability and
with an eye to the unique risks presented by unsophisticated juries
that may not properly evaluate evidence. But because hearsay evidence
can in fact be highly reliable, and because it is ``often relevant,''
Tome v. United States, 513 U.S. 150, 163 (1995), there are many
circumstances in which such testimony is admissible in federal judicial
proceedings. Those circumstances include, but are by no means limited
to, recorded recollections, records of regularly conducted activity,
records of a public office, excited utterances, and statements against
penal or other interest. Moreover, where hearsay evidence bears indicia
of reliability, it is regularly used in many other profoundly important
contexts, including federal sentencing and immigration proceedings.
See, e.g., Arrazabal v. Barr, 929 F.3d 451, 462 (7th Cir. 2019); United
States v. Mitrovic, 890 F.3d 1217, 1222 (11th Cir. 2018); United States
v. Woods, 596 F.3d 445, 448 (8th Cir. 2010). Ironically, although some
have complained that hearings related to the Ukraine affair initially
occurred out of public sight, one reason for that measure was to ensure
the integrity of witness testimony. Where multiple witnesses testified
to the same point in separate, confidential hearings, that factual
conclusion may be seen as corroborated and more highly reliable.
---------------------------------------------------------------------------
To summarize: just like grand jurors and prosecutors, the
House is not subject to rigid evidentiary rules in deciding
whether to approve articles. Members of the House are trusted
to fairly weigh evidence in an impeachment inquiry. Where the
President illegally seeks to obstruct such an inquiry, the
House is free to infer that evidence blocked from its view is
harmful to the President's position. It is also free to rely on
other relevant, reliable evidence that illuminates the ultimate
factual issues. The President has no right to defy an
impeachment inquiry and then demand that the House turn back
because it lacks the very evidence he unlawfully concealed. If
anything, such conduct confirms that the President sees himself
as above the law and may therefore bear on the question of
impeachment.\373\
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\373\The President has advanced numerous arguments to justify his
across-the-board defiance of the House impeachment inquiry. These
arguments lack merit. As this Committee recognized when it impeached
President Nixon for obstruction of Congress, the impeachment power
includes a corresponding power of inquiry that allows the House to
investigate the Executive Branch and compel compliance with its
subpoenas.
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C. ABUSE OF PRESIDENTIAL POWER IS IMPEACHABLE
The powers of the President are immense, but they are not
absolute. That principle applies to the current President just
as it applied to his predecessors. President Nixon erred in
asserting that ``when the President does it, that means it is
not illegal.''\374\ And President Trump was equally mistaken
when he declared he had ``the right to do whatever I want as
president.''\375\ The Constitution always matches power with
constraint. That is true even of powers vested exclusively in
the chief executive. If those powers are invoked for corrupt
reasons, or in an abusive manner that threatens harm to
constitutional governance, the President is subject to
impeachment for ``high Crimes and Misdemeanors.''
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\374\Document: Transcript of David Frost's Interview with Richard
Nixon, Teaching American History. (1977).
\375\ Michael Brice-Saddler, While Bemoaning Mueller Probe, Trump
Falsely Says the Constitution Gives Him `The Right To Do Whatever I
Want'', The Washington Post, July 23, 2019.
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This conclusion follows from the Constitution's history and
structure. As explained above, the Framers created a formidable
Presidency, which they entrusted with ``the executive Power''
and a host of additional authorities. For example, the
President alone can confer pardons, sign or veto legislation,
recognize foreign nations, serve as Commander in Chief of the
armed forces, and appoint or remove principal officers. The
President also plays a significant (though not exclusive) role
in conducting diplomacy, supervising law enforcement, and
protecting national security. These are daunting powers for any
one person to wield. If put to nefarious ends, they could wreak
havoc on our democracy.
The Framers knew this. Fearful of tyranny in all its forms,
they saw impeachment as a necessary guarantee that Presidents
could be held accountable for how they exercised executive
power. Many delegates at the Constitutional Convention and
state ratifying conventions made this point, including Madison,
Randolph, Pinckney, Stillman, and Iredell. Their view was
widely shared. As James Wilson observed in Pennsylvania, ``we
have a responsibility in the person of our President''--who is
``possessed of power''--since ``far from being above the
laws,'' he is ``amenable to them . . . by impeachment.''\376\
Hamilton struck the same note. In Federalist No. 70, he
remarked that the Constitution affords Americans the ``greatest
securities they can have for the faithful exercise of any
delegated power,'' including the power to discover ``with
facility and clearness''' any misconduct requiring ``removal
from office.''\377\ Impeachment and executive power were thus
closely intertwined in the Framers' constitutional plan: the
President could be vested with awesome power, but only because
he faced removal from office for grave abuses.
---------------------------------------------------------------------------
\376\2 Elliot, Debates in the Several State Conventions at 480.
\377\Alexander Hamilton, Federalist No. 70 at 456.
---------------------------------------------------------------------------
The architects of checks and balances meant no exceptions
to this rule. There is no power in the Constitution that a
President can exercise immune from legal consequence. The
existence of any such unchecked and uncheckable authority in
the federal government would offend the bedrock principle that
nobody is above the law. It would also upend the reasons why
our Framers wrote impeachment into the Constitution: the exact
forms of Presidential wrongdoing that they discussed in
Philadelphia could be committed through use of executive
powers, and it is unthinkable that the Framers left the Nation
defenseless in such cases. In fact, when questioned by Mason in
Virginia, Madison expressly stated that the President could be
impeached for abuse of his exclusive pardon power--a view that
the Supreme Court later echoed in Ex Parte Grossman.\378\ By
the same token, a President could surely be impeached for
treason if he fired the Attorney General to thwart the
unmasking of an enemy spy in wartime; he could impeached for
bribery if he offered to divulge state secrets to a foreign
nation, conditioned on regulatory exemptions for his family
business.\379\ Simply put, ``the fact that a power is exclusive
to the executive--that is, the president alone may exercise
it--does not mean the power cannot be exercised in clear bad
faith, and that Congress cannot look into or act upon knowledge
of that abuse.''\380\
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\378\3 Elliot, Debates in the Several State Conventions at 497-98;
Ex Parte Grossman, 267 U.S. at 121. Madison adhered to this
understanding after the Constitution was ratified. In 1789, he
explained to his colleagues in the House that the President would be
subject to impeachment for abuse of the removal power--which is held by
the President alone--``if he suffers [his appointees] to perpetrate
with impunity High crimes or misdemeanors against the United States, or
neglects to superintend their conduct, so as to check their excesses.''
1 Annals of Congress 387 (1789).
\379\Scholars have offered many examples and hypotheticals that
they see as illustrative of this point. See Bowman, High Crimes and
Misdemeanors at 258; Black & Bobbitt, Impeachment at 115; Hemel &
Posner, Presidential Obstruction of Justice at 1297; Tribe & Matz, To
End a Presidency at 61.
\380\Jane Chong, Impeachment-Proof? The President's
Unconstitutional Abuse of His Constitutional Powers, Lawfare, Jan. 2,
2018.
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The rule that abuse of power can lead to removal
encompasses all three branches. The Impeachment Clause applies
to ``The President, Vice President and all civil Officers of
the United States,'' including Article III judges.\381\ There
is no exception to impeachment for misconduct by federal judges
involving the exercise of their official powers. In fact, the
opposite is true: ``If in the exercise of the powers with which
they are clothed as ministers of justice, [judges] act with
partiality, or maliciously, or corruptly, or arbitrarily, or
oppressively, they may be called to an account by
impeachment.''\382\ Similarly, if Members of Congress exercise
legislative power abusively or with corrupt purposes, they may
be removed pursuant to the Expulsion Clause, which permits each
house of Congress to expel a member ``with the Concurrence of
two thirds.''\383\ Nobody is entitled to wield power under the
Constitution if they ignore or betray the Nation's interests to
advance their own.
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\381\U.S. Const. art. II, Sec. 4.
\382\Bradley v. Fisher 80 U.S. 335, 350 (1871).
\383\U.S. Const. art. I, Sec. 5, cl. 2.
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This is confirmed by past practice of the House. President
Nixon's case directly illustrates the point. As head of the
Executive Branch, he had the power to appoint and remove law
enforcement officials, to issue pardons, and to oversee the
White House, IRS, CIA, and FBI. But he did not have any warrant
to exercise these Presidential powers abusively or corruptly.
When he did so, the House Judiciary Committee properly approved
multiple articles of impeachment against him. Several decades
later, the House impeached President Clinton. There, the House
witnessed substantial disagreement over whether the President
could be impeached for obstruction of justice that did not
involve using the powers of his office. But it was universally
presumed--and never seriously questioned--that the President
could be impeached for obstruction of justice that did involve
abuse of those powers.\384\ That view rested firmly on a
correct understanding of the Constitution.
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\384\See generally 1998 Background and History of Impeachment
Hearing.
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Our Constitution rejects pretensions to monarchy and binds
Presidents with law. A President who sees no limit on his power
manifestly threatens the Republic.
D. PRESIDENTIAL PRETEXTS NEED NOT BE ACCEPTED AT FACE VALUE
Impeachable offenses are often defined by corrupt intent.
To repeat Iredell, ``the president would be liable to
impeachments [if] he had . . . acted from some corrupt motive
or other,'' or if he was ``willfully abusing his trust.''\385\
Consistent with that teaching, both ``Treason'' and ``Bribery''
require proof that the President acted with an improper state
of mind, as would many other offenses described as impeachable
at the Constitutional Convention. Contrary to occasional
suggestions that the House may not examine the President's
intent, an impeachment inquiry may therefore require the House
to determine why the President acted the way he did.
Understanding the President's motives may clarify whether he
used power in forbidden ways, whether he was faithless in
executing the laws, and whether he poses a continuing danger to
the Nation if allowed to remain in office.
---------------------------------------------------------------------------
\385\Id. at 49.
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When the House probes a President's state of mind, its
mandate is to find the facts. There is no room for legal
fictions or lawyerly tricks that distort a clear assessment of
the President's thinking. That means evaluating the President's
explanations to see if they ring true. The question is not
whether the President's conduct could have resulted from
innocent motives. It is whether the President's real reasons--
the ones actually in his mind as he exercised power--were
legitimate. The Framers designed impeachment to root out abuse
and corruption, even when a President masks improper intent
with cover stories.
Accordingly, where the President's explanation of his
motives defies common sense, or is otherwise unbelievable, the
House is free to reject the pretextual explanation and to
conclude that the President's false account of his thinking is
itself evidence that he acted with corrupt motives. The
President's honesty in an impeachment inquiry, or his lack
thereof, can thus shed light on the underlying issue.\386\
---------------------------------------------------------------------------
\386\See Tribe & Matz, To End A Presidency at 92 (``Does the
president admit error, apologize, and clean house? Does he prove his
innocence, or at least his reasonable good faith? Or does he lie and
obstruct until the bitter end? Maybe he fires investigators and
stonewalls prosecutors? . . . These data points are invaluable when
Congress asks whether leaving the president in office would pose a
continuing threat to the nation.'').
---------------------------------------------------------------------------
President Nixon's case highlights the point. In its
discussion of an article of impeachment for abuse of power, the
House Judiciary Committee concluded that he had ``falsely used
a national security pretext'' to direct executive agencies to
engage in unlawful electronic surveillance investigations, thus
violating ``the constitutional rights of citizens.''\387\ In
its discussion of the same article, the Committee also found
that President Nixon had interfered with the Justice Department
by ordering it to cease investigating a crime ``on the pretext
that it involved national security.''\388\ President Nixon's
repeated claim that he had acted to protect national security
could not be squared with the facts, and so the Committee
rejected it in approving articles of impeachment against him
for targeting political opponents.
---------------------------------------------------------------------------
\387\Committee Report on Nixon Articles of Impeachment (1974) at
146.
\388\Id. at 179.
---------------------------------------------------------------------------
Testing whether someone has falsely characterized their
motives requires careful attention to the facts. In rare cases,
``some implausible, fantastic, and silly explanations could be
found to be pretextual without any further evidence.''\389\
Sifting truth from fiction, though, usually demands a thorough
review of the record--and a healthy dose of common sense. The
question is whether ``the evidence tells a story that does not
match the explanation.''\390\
---------------------------------------------------------------------------
\389\Purkett v. Elem, 514 U.S. 765, 776-77 (1995) (Stevens, J.,
dissenting).
\390\Dep't of Commerce v. N.Y., No. 18-966, at 27 (U.S. Jun. 27,
2019).
---------------------------------------------------------------------------
Because courts assess motive all the time, they have
identified warning signs that an explanation may be
untrustworthy. Those red flags include the following:
First, lack of fit between conduct and explanation. This
exists when someone claims they were trying to achieve a
specific goal but then engaged in conduct poorly tailored to
achieving it.\391\ For instance, imagine the President claims
that he wants to solve a particular problem--but then he
ignores many clear examples of that problem, weakens rules
meant to stop it from occurring, acts in ways unlikely to
address it, and seeks to punish only two alleged violators
(both of whom happen to be his competitors). The lack of fit
between his punitive conduct and his explanation for it
strongly suggests that the explanation is false, and that he
invented it as a pretext for corruptly targeting his
competitors.
---------------------------------------------------------------------------
\391\See Romer v. Evans, 517 U.S. 620, 632 (1996); Albemarle Paper
Co. v. Moody, 422 U.S. 405, 425 (1975); Miller-El v. Dretke, 545 U.S.
231, 260 (2005).
---------------------------------------------------------------------------
Second, arbitrary discrimination. When someone claims they
were acting for a particular reason, look to see if they
treated similarly-situated individuals the same.\392\ For
example, if a President says that people doing business abroad
should not engage in specific practices, does he punish
everyone who breaks that rule, or does he pick and choose? If
he picks and chooses, is there a good reason why he targets
some people and not others, or does he appear to be targeting
people for reasons unrelated to his stated motive? Where
similarly-situated people are treated differently, the
President should be able to explain why; if no such explanation
exists, it follows that hidden motives are in play.
---------------------------------------------------------------------------
\392\Flowers v. Mississippi, 139 S. Ct. 2228, 2249 (2019); Miller-
El v. Cockrell, 537 U.S. 322, 345 (2003).
---------------------------------------------------------------------------
Third, shifting explanations. When someone repeatedly
changes their story, it makes sense to infer that they began
with a lie and may still be lying.\393\ That is true in daily
life and it is true in impeachments. The House may therefore
doubt the President's account of his motives when he first
denies that something occurred; then admits that it occurred
but denies key facts; then admits those facts and tries to
explain them away; and then changes his explanation as more
evidence comes to light. Simply stated, the House is ``not
required to exhibit a naivete from which ordinary citizens are
free.''\394\
---------------------------------------------------------------------------
\393\See Foster v. Chatman, 136 S. Ct. 1737, 1754 (2016); Evans v.
Sebelius, 716 F.3d 617, 620-21 (D.C. Cir. 2013); Geleta v. Gray, 645
F.3d 408, 413-14 (D.C. Cir. 2011); EEOC v. Sears Roebuck & Co., 243
F.3d 846, 853 (4th Cir.2001); Dominguez-Cruz v. Suttle Caribe, Inc.,
202 F.3d 424, 432 (1st Cir. 2000); Thurman v. Yellow Freight Sys.,
Inc., 90 F.3d 1160, 1167 (6th Cir. 1996).
\394\United States v. Stanchich, 550 F.2d 1294, 1300 (2nd Cir.
1977) (Friendly, J.) (making a similar point about federal judges).
---------------------------------------------------------------------------
Fourth, irregular decisionmaking. When someone breaks from
the normal method of making decisions, and instead acts
covertly or strangely, there is cause for suspicion. As the
Supreme Court has reasoned, ``[t]he specific sequence of events
leading up the challenged decision'' may ``shed some light on
the decisionmaker's purposes''--and ``[d]epartures from the
normal procedural sequence'' might ``afford evidence that
improper purposes are playing a role.''\395\ There are many
personnel and procedures in place to ensure sound
decisionmaking in the Executive Branch. When they are ignored,
or replaced by secretive irregular channels, the House must
closely scrutinize Presidential conduct.
---------------------------------------------------------------------------
\395\See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 267 (1977).
---------------------------------------------------------------------------
Finally, explanations based on falsehoods. Where someone
explains why they acted a certain way, but the explanation
depends on demonstrably false facts, then their explanation is
suspect.\396\ For example, if a President publicly states that
he withheld funds from a foreign nation due to its failure to
meet certain conditions, but the federal agencies responsible
for monitoring those conditions certify that they were
satisfied, the House may conclude that the President's
explanation is only a distraction from the truth.
---------------------------------------------------------------------------
\396\See, e.g., Reeves v. Sanderson Plumbing Products, 530 U.S.
133, 147 (2000); Geleta v. Gray, 645 F.3d 408, 414 (D.C. Cir. 2011);
Czekalski v. Peters, 475 F.3d 360, 366 (D.C. Cir. 2007); Murray v.
Gilmore, 406 F.3d 708, 716 (D.C. Cir. 2005); Salazar v. Wash. Metro.
Transit Auth., 401 F.3d 504, 511-12 (D.C. Cir. 2005); Anderson v.
Zubieta, 180 F.3d 329, 348 (D.C. Cir. 1999).
---------------------------------------------------------------------------
When one or more of these red flags is present, there is
reason to doubt that the President's account of his motives is
accurate. When they are all present simultaneously, that
conclusion is virtually unavoidable. Thus, in examining the
President's motives as part of an impeachment inquiry, the
House must test his story against the evidence to see if it
holds water. If it does not, the House may find that he acted
with corrupt motives--and that he has made false statements as
part of an effort to stymie the impeachment inquiry.
E. ATTEMPTED PRESIDENTIAL MISCONDUCT IS IMPEACHABLE
As a matter of settled constitutional law, and contrary to
recent suggestions otherwise, attempted Presidential wrongdoing
can be impeachable. This is clear from the records of the
Constitutional Convention. In the momentous exchange that led
to adoption of the ``high Crimes and Misdemeanors''' standard,
Mason championed impeaching Presidents for any ``great and
dangerous offenses.'' It was therefore necessary, he argued, to
avoid a narrow standard that would prevent impeachment for
``attempts to subvert the Constitution'' (emphasis added).
Then, only minutes later, it was Mason himself who suggested
``high Crimes and Misdemeanors'' as the test for Presidential
impeachment. The very author of the relevant constitutional
text thus made clear it must cover ``attempts.''
The House Judiciary Committee reached this conclusion in
President Nixon's case. Its analysis is compelling and
consistent with Mason's reasoning:
In some of the instances in which Richard M. Nixon
abused the powers of his office, his unlawful or
improper objective was not achieved. But this does not
make the abuse of power any less serious, nor diminish
the applicability of the impeachment remedy. The
principle was stated by Supreme Court Justice William
Johnson in 1808: ``If an officer attempt[s] an act
inconsistent with the duties of his station, it is
presumed that the failure of the attempt would not
exempt him from liability to impeachment. Should a
President head a conspiracy for the usurpation of
absolute power, it is hoped that no one will contend
that defeating his machinations would restore him to
innocence.'' Gilchrist v. Collector of Charleston, 10
F. Cas. 355, 365 (No. 5, 420) (C.C.D.S.C. 1808).
Adhering to this legal analysis, the Committee approved
articles of impeachment against President Nixon that
encompassed acts of attempted wrongdoing that went nowhere or
were thwarted. That includes President Nixon's attempt to block
an investigation by the Patman Committee into the Watergate
break-ins,\397\ his attempt to block testimony by former
aides,\398\ his attempt to ``narrow and divert'' the Senate
Select Committee's investigation,\399\ and his attempt to have
the IRS open tax audits of 575 members of George McGovern's
staff and contributors to his campaign, at a time when McGovern
was President Nixon's political opponent in the upcoming 1972
presidential election.\400\ Moreover, the article of
impeachment against President Nixon for abuse of power charged
that he ``attempted to prejudice the constitutional right of an
accused to a fair trial.''\401\
---------------------------------------------------------------------------
\397\Committee Report on Nixon Articles of Impeachment (1974) at
64.
\398\Id. at 120.
\399\Id.
\400\Id. at 143.
\401\Id. at 3.
---------------------------------------------------------------------------
History thus confirms that defiance by his own aides do not
afford the President a defense to impeachment. The Nation is
not required to cross its fingers and hope White House staff
will persist in ignoring or sidelining a President who orders
them to execute ``high Crimes and Misdemeanors.'' Nor can a
President escape impeachment just because his corrupt plan to
abuse power or manipulate elections was discovered and
abandoned. It is inconceivable that our Framers authorized the
removal of Presidents who engage in treason or bribery, but
disallowed the removal of Presidents who attempt such offenses
and are caught before they succeed. Moreover, a President who
takes concrete steps toward engaging in impeachable conduct is
not entitled to any benefit of the doubt. As one scholar
remarks in the context of attempts to manipulate elections,
``when a substantial attempt is made by a candidate to procure
the presidency by corrupt means, we may presume that he at
least thought this would make a difference in the outcome, and
thus we should resolve any doubts as to the effects of his
efforts against him.''\402\
---------------------------------------------------------------------------
\402\Black & Bobbitt, Impeachment at 93.
---------------------------------------------------------------------------
Common sense confirms what the law provides: a President
may be impeached where he attempts a grave abuse of power, is
caught along the way, abandons his plan, and subsequently seeks
to conceal his wrongdoing. A President who attempts impeachable
offenses will surely attempt them again. The impeachment power
exists so that the Nation can remove such Presidents from power
before their attempts finally succeed.
F. IMPEACHMENT IS PART OF DEMOCRATIC GOVERNANCE
As House Judiciary Committee Chairman Peter Rodino
emphasized in 1974, ``it is under our Constitution, the supreme
law of our land, that we proceed through the sole power of
impeachment.''\403\ Impeachment is part of democratic
constitutional governance, not an exception to it. It results
in the President's removal from office only when a majority of
the House, and then a super-majority of the Senate, conclude
that he has engaged in sufficiently grave misconduct that his
term in office must be brought to an early end. This process
does not ``nullify'' the last election. No President is
entitled to persist in office after committing ``high Crimes
and Misdemeanors,'' and no voter is entitled to expect that
their preferred candidate will do so. Under the Constitution,
when a President engages in great and dangerous offenses
against the Nation--thus betraying their Oath of Office--
impeachment and removal by Congress may be necessary to protect
our democracy.
---------------------------------------------------------------------------
\403\Debate on Nixon Articles of Impeachment (1974) at 2.
---------------------------------------------------------------------------
The Framers considered relying solely on elections, rather
than impeachment, to remove wayward Presidents. But they
overwhelmingly rejected that position. As Madison warned,
waiting so long ``might be fatal to the Republic.''\404\
Particularly where the President's misconduct is aimed at
corrupting our democracy, relying on elections to solve the
problem is insufficient: it makes no sense to wait for the
ballot box when a President stands accused of interfering with
elections and is poised to do so again. Numerous Framers spoke
directly to this point at the Constitutional Convention.
Impeachment is the remedy for a President who will do anything,
legal or not, to remain in office. Allowing the President a
free pass is thus the wrong move when he is caught trying to
corrupt elections in the final year of his first four-year
term--just as he prepares to face the voters.
---------------------------------------------------------------------------
\404\Elliot, Debates on the Adoption of the Federal Constitution at
341.
---------------------------------------------------------------------------
Holding the President accountable for ``high Crimes and
Misdemeanors'' not only upholds democracy, but also vindicates
the separation of powers. Representative Robert Kastenmeier
explained this well in 1974: ``The power of impeachment is not
intended to obstruct or weaken the office of the Presidency. It
is intended as a final remedy against executive excess . . .
[a]nd it is the obligation of the Congress to defend a
democratic society against a Chief Executive who might be
corrupt.''\405\ The impeachment power thus restores balance and
order when Presidential misconduct threatens constitutional
governance.
---------------------------------------------------------------------------
\405\Debate on Nixon Articles of Impeachment (1974) at 16.
---------------------------------------------------------------------------
VII. Conclusion
As Madison recognized, ``In framing a government which is
to be administered by men over men, the great difficulty lies
in this: You must first enable the government to control the
governed; and in the next place oblige it control
itself.''\406\ Impeachment is the House's last and most
extraordinary resort when faced with a President who threatens
our constitutional system. It is a terrible power, but only
``because it was forged to counter a terrible power: the despot
who deems himself to be above the law.''\407\ The consideration
of articles of impeachment is always a sad and solemn
undertaking. In the end, it is the House--speaking for the
Nation as a whole--that must decide whether the President's
conduct rises to the level of ``high Crimes and Misdemeanors''
warranting impeachment.
---------------------------------------------------------------------------
\406\James Madison, Federalist No. 51 at 356.
\407\Jill Lepore, The Invention--And Reinvention--Of Impeachment,
The New Yorker Oct. 21, 2019.
---------------------------------------------------------------------------
Article I: Abuse of Power
I. The First Article of Impeachment
The Constitution provides that the House of Representatives
``shall have the sole Power of Impeachment'' and that the
President ``shall be removed from Office on Impeachment for,
and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors'''. In his conduct of the office of President of
the United States--and in violation of his constitutional oath
faithfully to execute the office of President of the United
States and, to the best of his ability, preserve, protect, and
defend the Constitution of the United States, and in violation
of his constitutional duty to take care that the laws be
faithfully executed--Donald J. Trump has abused the powers of
the Presidency, in that:
Using the powers of his high office, President Trump
solicited the interference of a foreign government, Ukraine, in
the 2020 United States Presidential election. He did so through
a scheme or course of conduct that included soliciting the
Government of Ukraine to publicly announce investigations that
would benefit his reelection, harm the election prospects of a
political opponent, and influence the 2020 United States
Presidential election to his advantage. President Trump also
sought to pressure the Government of Ukraine to take these
steps by conditioning official United States Government acts of
significant value to Ukraine on its public announcement of the
investigations. President Trump engaged in this scheme or
course of conduct for corrupt purposes in pursuit of personal
political benefit. In so doing, President Trump used the powers
of the Presidency in a manner that compromised the national
security of the United States and undermined the integrity of
the United States democratic process. He thus ignored and
injured the interests of the Nation.
President Trump engaged in this scheme or course of conduct
through the following means:
(1) President Trump--acting both directly and through
his agents within and outside the United States
Government--corruptly solicited the Government of
Ukraine to publicly announce investigations into--
(A) a political opponent, former Vice
President Joseph R. Biden, Jr.; and
(B) a discredited theory promoted by Russia
alleging that Ukraine--rather than Russia--
interfered in the 2016 United States
Presidential election.
(2) With the same corrupt motives, President Trump--
acting both directly and through his agents within and
outside the United States Government--conditioned two
official acts on the public announcements that he had
requested--
(A) the release of $391 million of United
States taxpayer funds that Congress had
appropriated on a bipartisan basis for the
purpose of providing vital military and
security assistance to Ukraine to oppose
Russian aggression and which President Trump
had ordered suspended; and
(B) a head of state meeting at the White
House, which the President of Ukraine sought to
demonstrate continued United States support for
the Government of Ukraine in the face of
Russian aggression.
(3) Faced with the public revelation of his actions,
President Trump ultimately released the military and
security assistance to the Government of Ukraine, but
has persisted in openly and corruptly urging and
soliciting Ukraine to undertake investigations for his
personal political benefit.
These actions were consistent with President Trump's
previous invitations of foreign interference in United States
elections.
In all of this, President Trump abused the powers of the
Presidency by ignoring and injuring national security and other
vital national interests to obtain an improper personal
political benefit. He has also betrayed the Nation by abusing
his high office to enlist a foreign power in corrupting
democratic elections.
Wherefore President Trump, by such conduct, has
demonstrated that he will remain a threat to national security
and the Constitution if allowed to remain in office, and has
acted in a manner grossly incompatible with self-governance and
the rule of law. President Trump thus warrants impeachment and
trial, removal from office, and disqualification to hold and
enjoy any office of honor, trust, or profit under the United
States.
II. Introduction
The President is entrusted with extraordinary power and
commanded to ``take Care that the Laws be faithfully
executed.'' At minimum, that means the President must use his
office to serve and protect the American people. It is thus a
grave violation of the Constitution for a President to betray
the public by exercising power for his own personal gain while
injuring and ignoring vital national interests. As the Framers
confirmed, such abuse of power warrants impeachment.
President Donald J. Trump used the power of his office to
solicit and pressure a foreign nation to interfere in the 2020
United States Presidential election. He did so not for any
legitimate United States policy objective, but to obtain a
personal political advantage and to harm a political opponent.
His scheme involved directly soliciting the announcement of
investigations related to former Vice President Joseph Biden
and the 2016 United States Presidential election. It also
involved leveraging military and security assistance to a
fragile foreign ally, as well as a valuable White House
meeting, as part of a pressure campaign to induce that sought-
after announcement.
These corrupt efforts by President Trump to manipulate the
next election in his favor harmed the national security of the
United States and imperiled the integrity of our democratic
system. But when President Trump was caught, he did not
apologize or cease his misconduct. He instead persisted in
urging foreign nations to investigate an American citizen who
dared to oppose him politically. If President Trump is allowed
to remain in office, he will unquestionably continue to pursue
personal political benefits at the direct expense of our
security and self-governance.
This conduct, and the risk posed by President Trump's
pattern of misconduct, is the very definition of an impeachable
offense. It captures the Framers' worst fears about how
Presidents might someday abuse the powers of their office. To
protect democracy and safeguard national security, the
Committee on the Judiciary has no choice but to recommend that
President Trump be impeached.
III. President Trump Committed ``High Crimes and Misdemeanors''' by
Abusing the Powers of His Office
A. ABUSE OF POWER IS AN IMPEACHABLE ``HIGH CRIME AND MISDEMEANOR''
``[A]buse of power was no vague notion to the Framers and
their contemporaries. It had a very particular meaning to
them.''\408\ This meaning encompassed the use of official
powers in a way that ``on its very face grossly exceeds the
President's constitutional authority or violates legal limits
on that authority.''\409\ As relevant here, it also included
``the exercise of official power to obtain an improper personal
benefit, while ignoring or injuring the national
interest.''\410\ This understanding is rooted in the
Constitution's Take Care Clause, which commands the President
to ``faithfully execute'' the law.\411\ That duty requires
Presidents ``to exercise their power only when it is motivated
in the public interest rather than in their private self-
interest.''\412\
---------------------------------------------------------------------------
\408\See Staff of H. Comm. on the Judiciary, 116th Cong.,
Constitutional Grounds for Presidential Impeachment 18 (Comm. Print
2019) (hereinafter ``Constitutional Grounds for Impeachment (2019)'').
\409\Id.
\410\Id. at 8.
\411\U.S. Const., art. II, Sec. 3, cl. 5.
\412\Andrew Kent et al., Faithful Execution and Article II, 132
Harv. L. Rev. 2111, 2120, 2179 (2019).
---------------------------------------------------------------------------
Numerous Framers confirmed that a President can be
impeached for exercising power with a corrupt purpose. As James
Iredell explained, ``the president would be liable to
impeachments [if] he had . . . acted from some corrupt motive
or other,'' or if he was ``willfully abusing his trust.''\413\
Alexander Hamilton deemed impeachment proper for ``offenses
which proceed from the misconduct of public men, or, in other
words, from the abuse or violation of some public trust.''\414\
In a similar vein, James Madison reasoned that the President
could be impeached if there were ``grounds to believe'' he used
his pardon power for the corrupt purpose of obstructing justice
by ``shelter[ing]'' persons with whom he is connected ``in any
suspicious manner.''\415\ As these and many other historical
authorities show, ``to the Framers, it was dangerous for
officials to exceed their constitutional power, or to
transgress legal limits, but it was equally dangerous (perhaps
more so) for officials to conceal corrupt or illegitimate
objectives behind superficially valid acts.''\416\
---------------------------------------------------------------------------
\413\Background and History of Impeachment: Hearing Before the
Subcomm. On the Constitution of the H. Comm. on the Judiciary, 105th
Cong. 49 (1999) (statement of Michael J. Gerhardt).
\414\The Federalist No. 65, at 426 (Alexander Hamilton) (Benjamin
Fletcher Wright ed., 2004).
\415\3 Jonathan Elliot, ed., The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 497-98 (1861)
(hereinafter ``Debates in the Several State Conventions'').
\416\Constitutional Grounds for Impeachment (2019), at 20. Many
other Framers agreed that abuse of power is an impeachable offense. In
explaining why the Constitution must authorize Presidential
impeachment, Edmund Randolph warned that ``the Executive will have
great opportunit[ies] of abusing his power.'' 2 Max Farrand, ed., The
Records of the Federal Convention of 1787, 67 (1911). Charles Pinckney
agreed that Presidents must be removed who ``behave amiss or betray
their public trust.'' 4 Debates in the Several State Conventions, at
281. Reverend Samuel Stillman asked, ``With such a prospect [of
impeachment], who will dare to abuse the powers vested in him by the
people?'' 2 Debates in the Several State Conventions, at 169.
---------------------------------------------------------------------------
The proceedings against President Nixon confirm and
exemplify the point. Two of the three articles against him--
Article I (obstruction of justice) and Article II (abuse of
power)--accused President Nixon of using his executive power
for corrupt ends.\417\ The second article principally addressed
President Nixon's use of power, including powers vested solely
in the Presidency, to aid political allies, harm political
opponents, and gain improper personal political advantages. In
explaining this article of impeachment, the House Committee on
the Judiciary (the ``Committee'') stated that President Nixon's
conduct was ``undertaken for his personal political advantage
and not in furtherance of any valid national policy
objective.''\418\ His abuses of Presidential power were
therefore ``seriously incompatible with our system of
constitutional government'' and warranted removal from
office.\419\
---------------------------------------------------------------------------
\417\Report of the Committee on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, H. Rep. No. 93-1305,
at 1-4 (1974) (hereinafter ``Committee Report on Nixon Articles of
Impeachment (1974)''). Obstruction of justice was also the basis for an
article of impeachment against President Clinton, though his conduct
did not involve official acts. See H. Res. 611, 105th Cong. (1998).
\418\Committee Report on Nixon Articles of Impeachment (1974) at
139.
\419\Id.
---------------------------------------------------------------------------
It is occasionally suggested that a President cannot be
impeached for the use (or abuse) of powers vested in him by the
Constitution. As the Framers made clear, and as President
Nixon's case proves, that interpretation is plainly incorrect
and, moreover, would eviscerate our system of checks and
balances. The fact that a President is vested with powers does
not mean he can exercise them with impunity. Nor does it mean
he is free to set his own personal gain as the de facto policy
of the United States. To the contrary, when the President
wields power entrusted to him by the people of this Nation, he
must honor and serve that public trust. Where a President
betrays that obligation by corrupting his office, he is subject
to impeachment.
B. THE FRAMERS FEARED PRESIDENTS WOULD ABUSE THEIR POWER TO BETRAY
NATIONAL INTERESTS THROUGH FOREIGN ENTANGLEMENTS AND TO CORRUPT
ELECTIONS
In warning against abuse of power, the Framers repeatedly
returned to two very specific risks: betrayal of the national
interest and corruption of elections. Informed by history, the
Framers perceived these abuses as existential threats to the
Republic. The United States could not survive if Presidents
used their high office to conspire with foreign nations in
pursuit of personal gain. And democracy would be in grave
danger if Presidents used their powers to subvert elections. As
John Adams warned in a letter to Thomas Jefferson, these risks
were unavoidable and might sometimes overlap: ``You are
apprehensive of foreign Interference, Intrigue, Influence. So
am I . . . . [A]s often as Elections happen, the danger of
foreign Influence recurs.''\420\ In Federalist No. 68, Hamilton
cautioned that the ``most deadly adversaries of republican
government'' may come ``chiefly from the desire in foreign
powers to gain an improper ascendant in our councils.''\421\
The Framers sought to guard against this threat in the
Impeachment Clause. If a President succumbed to temptation,
placing his own personal interests above our national security
and commitment to domestic self-governance, he faced
impeachment and removal from his position of power.
---------------------------------------------------------------------------
\420\Papers of Thomas Jefferson, To Thomas Jefferson from John
Adams, 6 December 1787, National Archives, Founders Online.
\421\The Federalist No. 68, at 441 (Alexander Hamilton).
---------------------------------------------------------------------------
Betrayal of national security was not an abstraction to the
Framers, who had just waged a war for independence and knew the
peril of corrupt foreign entanglements. ``Foreign powers,''
warned Elbridge Gerry, ``will intermeddle in our affairs, and
spare no expense to influence them.''\422\ In explaining why
the Constitution required an impeachment option, Madison argued
that a President ``might betray his trust to foreign
powers.''\423\ Benjamin Franklin, in turn, referenced the
Prince of Orange, who had reneged on a military treaty with
France under suspicious circumstances, inciting ``the most
violent animosities and contentions''' in Dutch politics.\424\
These and other Framers made clear that impeachment was a
safeguard against Presidents who betrayed vital national
interests through plots with foreign powers. The President's
broad authority in conducting foreign affairs makes it more
important, not less, that he display unswerving loyalty to the
United States.\425\ ``Accordingly, where the President uses his
foreign affairs power in ways that betray the national interest
for his own benefit, or harm national security for equally
corrupt reasons, he is subject to impeachment by the House . .
. A President who perverts his role as chief diplomat to serve
private rather than public ends has unquestionably engaged in
`high Crimes and Misdemeanors'--especially if he invited,
rather than opposed, foreign interference in our
politics.''\426\
---------------------------------------------------------------------------
\422\Brianne Gorod & Elizabeth Wydra, The First Magistrate in
Foreign Pay, The New Republic, Nov. 11, 2019.
\423\ 2 Farrand, Records of the Federal Convention, at 66.
\424\Id. at 68.
\425\Constitutional Grounds for Impeachment (2019), at 45.
\426\Id. at 24. Thus, ``[a]lthough the Framers did not intend
impeachment for genuine, good faith disagreements between the President
and Congress over matters of diplomacy, they were explicit that
betrayal of the Nation through plots with foreign powers justified
removal.'' Id. at 23.
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This last point speaks to a distinct but related fear: that
Presidents would improperly use the vast power of their office
to ensure their own re-election. William Davie saw impeachment
as ``an essential security for the good behaviour of the
Executive,'' who might otherwise spare ``no efforts or means
whatever to get himself re-elected.''\427\ George Mason agreed
that the threat of electoral treachery ``furnished a peculiar
reason in favor of impeachments whilst in office'': ``Shall the
man who has practised corruption & by that means procured his
appointment in the first instance, be suffered to escape
punishment, by repeating his guilt?''\428\ Gouverneur Morris
later added that ``the Executive ought therefore to be
impeachable for . . . Corrupting his electors.''\429\ Based in
their own experience under King George III, as well as the
writings of John Locke and other luminaries, ``those who wrote
our Constitution knew, and feared, that the chief executive
could threaten their plan of government by corrupting
elections.''\430\ They included impeachment in the Constitution
largely to thwart such treachery. As explained above, ``The
true nature of this threat is its rejection of government by
`We the People,' who would `ordain and establish' the
Constitution . . . When the President concludes that elections
threaten his continued grasp on power, and therefore seeks to
corrupt or interfere with them, he denies the very premise of
our constitutional system. The American people choose their
leaders; a President who wields power to destroy opponents or
manipulate elections is a President who rejects democracy
itself.''\431\
---------------------------------------------------------------------------
\427\2 Farrand, Records of the Federal Convention, at 64.
\428\Id. at 65.
\429\Id. at 69.
\430\See Constitutional Grounds for Impeachment (2019), at 27.
\431\Id.
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These authorities make clear that a President commits
``high Crimes and Misdemeanors''' where he exercises official
power to obtain an improper personal benefit, while ignoring or
injuring the national interest. Such an abuse is especially
abhorrent where it involves a betrayal of the national interest
through foreign entanglements or an effort to corrupt our
democracy. ``Any one of these violations of the public trust
justifies impeachment; when combined in a single course of
conduct, they state the strongest possible case for impeachment
and removal from office.''\432\
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\432\Id. at 11.
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C. KEY FINDINGS OF FACT
The complete evidentiary record bearing on President
Trump's abuse of power is set forth in the Trump-Ukraine
Impeachment Inquiry Report, (the ``Ukraine Report''), and we
rely on that Report and its findings here. Because we do not
restate all of the facts contained in that Report which support
the Committee's conclusions, we fully incorporate the Ukraine
Report by reference here.\433\. On the basis of that full
record, it is indisputable that President Trump engaged in
abuse of power. The essential facts bearing on that judgment
include the following:\434\
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\433\The Trump-Ukraine Impeachment Inquiry Report: Report for the
H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in
Consultation with the H. Comm. on Oversight and Reform and the H. Comm.
on Foreign Affairs at 208, 116th Cong. (2019) (hereinafter ``Ukraine
Report'').
\434\The facts that follow constitute the ``key findings of fact''
set forth in the Ukraine Report. Id. at 34-36.
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Donald J. Trump, the 45th President of the United
States--acting personally and through his agents within and
outside of the U.S. government--solicited the interference of a
foreign government, Ukraine, in the 2020 U.S. presidential
election. The President engaged in this course of conduct for
the benefit of his reelection, to harm the election prospects
of a political opponent, and to influence our nation's upcoming
presidential election to his advantage. In so doing, the
President placed his personal political interests above the
national interests of the United States, sought to undermine
the integrity of the U.S. presidential election process, and
endangered U.S. national security.
In furtherance of this scheme, President Trump--
directly and acting through his agents within and outside the
U.S. government--sought to pressure and induce Ukraine's newly-
elected president, Volodymyr Zelensky, to publicly announce
unfounded investigations that would benefit President Trump's
personal political interests and reelection effort. To advance
his personal political objectives, President Trump encouraged
the President of Ukraine to work with his personal attorney,
Rudolph Giuliani.
As part of this scheme, President Trump, acting in
his official capacity and using his position of public trust,
personally and directly requested from the President of Ukraine
that the government of Ukraine publicly announce investigations
into (1) the President's political opponent, former Vice
President Joseph R. Biden, Jr. and his son, Hunter Biden, and
(2) a baseless theory promoted by Russia alleging that
Ukraine--rather than Russia--interfered in the 2016 U.S.
election. These investigations were intended to harm a
potential political opponent of President Trump and benefit the
President's domestic political standing.
To create additional leverage against Ukraine and
force them to open these investigations, President Trump
ordered the suspension of $391 million in vital military
assistance urgently needed by Ukraine, a strategic partner, to
resist Russian aggression. Because the aid was appropriated by
Congress, on a bipartisan basis, and signed into law by the
President, its expenditure was required by law. Acting directly
and through his subordinates within the U.S. government, the
President withheld from Ukraine this military assistance
without any legitimate foreign policy, national security, or
anticorruption justification. The President did so despite the
longstanding bipartisan support of Congress, uniform support
across federal departments and agencies for the provision to
Ukraine of the military assistance, and his obligations under
the Impoundment Control Act.
President Trump used the power of the Office of
the President and exercised his authority over the Executive
Branch, including his control of the instruments of the federal
government, to apply increasing pressure on the President of
Ukraine and the Ukrainian government to announce the
politically-motivated investigations desired by President
Trump. Specifically, to advance and promote his scheme, the
President withheld official acts of value to Ukraine and
conditioned their fulfillment on actions by Ukraine that would
benefit his personal political interests:
D President Trump--acting through agents within and
outside the U.S. government--conditioned a head of
state meeting at the White House, which the President
of Ukraine desperately sought to demonstrate continued
United States support for Ukraine in the face of
Russian aggression, on Ukraine publicly announcing the
investigations that President Trump believed would aid
his reelection campaign.
D To increase leverage over the President of Ukraine,
President Trump, acting through his agents and
subordinates, conditioned release of the vital military
assistance he had suspended to Ukraine on the President
of Ukraine's public announcement of the investigations
that President Trump sought.
D President Trump's closest subordinates and advisors
within the Executive Branch, including Acting Chief of
Staff Mick Mulvaney, Secretary of State Mike Pompeo,
Secretary of Energy Rick Perry, and other senior White
House and Executive Branch officials had knowledge of,
in some cases facilitated and furthered the President's
scheme, and withheld information about the scheme from
the Congress and the American public.
In directing and orchestrating this scheme to
advance his personal political interests, President Trump did
not implement, promote, or advance U.S. anti-corruption
policies. In fact, the President sought to pressure and induce
the government of Ukraine to announce politically-motivated
investigations lacking legitimate predication that the U.S.
government otherwise discourages and opposes as a matter of
policy in that country and around the world. In so doing, the
President undermined U.S. support of anticorruption reform and
the rule of law in Ukraine, and undermined U.S. national
security.
By withholding vital military assistance and
diplomatic support from a strategic foreign partner government
engaged in an ongoing military conflict illegally instigated by
Russia, President Trump compromised national security to
advance his personal political interests.
Faced with the revelation of his actions,
President Trump publicly and repeatedly persisted in urging
foreign governments, including Ukraine and China, to
investigate his political opponent. This continued solicitation
of foreign interference in a U.S. election, as well as
President Trump's other actions, present a clear and present
danger that the President will continue to use the power of his
office for his personal political gain.
D. PRESIDENT TRUMP'S CONDUCT MEETS EACH ELEMENT OF ABUSE OF POWER
The conduct set forth in the First Article of Impeachment
unquestionably constitutes an ``abuse of power'' as that term
was understood by the Framers. Indeed, it is falls within the
heartland of the concerns raised at the Constitutional
Convention as necessitating Presidential impeachment. It is the
judgment of the Committee that President Trump has therefore
committed ``high Crimes and Misdemeanors.''
1. President Trump Exercised Official Power in Soliciting and
Pressuring the Government of Ukraine to Publicly Announce Two
Investigations
As explained above, a President commits an impeachable
abuse of power where he exercises official power to obtain an
improper personal benefit, while ignoring or injuring the
national interest. The first requirement is satisfied here:
President Trump exercised official power, entrusted to him by
the Constitution, in soliciting and pressuring the Government
of Ukraine to 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.
This conclusion is straightforward. On his July 25, 2019
call with President Zelensky, President Trump was acting as our
Nation's head of state and chief diplomat.\435\ The call was
itself an official act rooted in President Trump's powers under
Article II of the Constitution. So, too, were many of the
President's other acts throughout this scheme. It was only by
virtue of his supervisory powers over the Executive Branch, as
well as his power to appoint and remove certain officials,\436\
that President Trump could order the Office of Management and
Budget to block or allow the release of Congressionally-
appropriated military and security assistance to Ukraine.
Similarly, it was only by virtue of his executive powers--
including his authority to ``receive Ambassadors and other
public Ministers'''\437\--that President Trump could offer and
then withhold a White House meeting (as well as the many other
official governmental acts involved in such a high-stakes
diplomatic visit). And it was only by virtue of his executive
authority that President Trump could fire U.S. Ambassador to
Ukraine Marie Yovanovitch (whom he knew would have stood in the
way of his corrupt scheme), direct other administration
officials in the execution of his agenda relating to Ukraine,
and instruct United States officials to cooperate with his
private attorney, Rudy Giuliani. The scheme or course of
conduct described in the first Article of Impeachment is shot
through with official acts.\438\
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\435\See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct.
2076, 2086 (2015); see also id. at 2099 (finding that the ``[e]arly
practice of the founding generation also supports th[e] understanding
of the President's ``role of chief diplomat'').
\436\See id. art. II, Sec. 2 (``The President shall . . . appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall be established
by Law.'').
\437\U.S. Const. art. II, Sec. 3.
\438\Those official acts include the President's public statements
openly and corruptly urging and soliciting Ukraine to undertake
investigations for his personal political benefit (which were made in
his capacity as President and expressly directed to a foreign nation),
as well as conduct undertaken by Mr. Giuliani while acting as the
President's agent and facilitated by the President's implied or express
direction that United States officials facilitate Mr. Giuliani's
efforts.
---------------------------------------------------------------------------
The official acts comprising the First Article of
Impeachment, moreover, had the natural and foreseeable effect
of obtaining a personal political benefit for President Trump.
On January 20, 2017, President Trump filed initial paperwork to
launch his re-election campaign with the Federal Election
Commission.\439\ On April 25, 2019, former Vice President Biden
publicly announced his campaign for the Democratic nomination
for President of the United States and launched his effort to
unseat President Trump in the 2020 election.\440\ President
Trump and former Vice President Biden were widely recognized as
political opponents for the 2020 United States Presidential
election. In using the powers of his office to solicit and
pressure the Government of Ukraine to publicly announce an
investigation related to former Vice President Biden and his
son--and into a discredited theory that Ukraine, not Russia,
interfered with the 2016 United States Presidential election--
President Trump sought an announcement that would help him
politically. By its very nature, and on its face, the
President's conduct thus involved an exercise of power to
obtain a personal political benefit.
---------------------------------------------------------------------------
\439\Donald J. Trump, FEC Form 99 Miscellaneous Text, Image No.
201701209041436569, filed January 20, 2017.
\440\Alexander Burns & Jonathan Martin, Joe Biden Announces 2020
Run for President, After Months of Hesitation, N.Y. Times, Apr. 25,
2019.
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Although there can be no doubt that the abuse of power set
forth in Article I involved the exercise of official power, it
is helpful to closely consider the scheme at issue, as well as
two of the means by which President Trump pursued it:
specifically, his solicitation and pressuring of the Government
of Ukraine to announce investigations that would result in a
personal political benefit.
a. The Scheme
Beginning in the Spring of 2019, President Trump and his
agents undertook a scheme to pressure the newly-elected
President of Ukraine to announce politically-motivated
investigations related to former Vice President Joe Biden and
the 2016 United States Presidential election. That scheme
included extensive efforts by the President's personal attorney
Mr. Giuliani, who sought to tarnish former Vice President Biden
and pressed Ukrainian officials to initiate the investigations.
Mr. Giuliani publicly confirmed that the President was aware of
his efforts, which were undertaken not as part of official U.S.
foreign policy but to help the President personally.\441\
---------------------------------------------------------------------------
\441\Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push for
Inquiries That Could Help Trump, N.Y. Times, May 9, 2019 (hereinafter
``Vogel Giuliani'') (reporting on interview with Giuliani) (``Somebody
could say it's improper. And this isn't foreign policy--I'm asking them
to do an investigation that they're doing already and that other people
are telling them to stop. And I'm going to give them reasons why they
shouldn't stop it because that information will be very, very helpful
to my client, and may turn out to be helpful to my government.'').
---------------------------------------------------------------------------
But the task of carrying out this scheme was not limited to
the President's personal attorney. On May 23, 2019, following
the inauguration of Ukrainian president Volodymyr Zelensky, the
President met with United States officials, including
Ambassador to the European Union Gordon Sondland, Special
Representative for Ukraine Negotiations Ambassador Kurt Volker,
and Secretary of Energy Rick Perry.\442\ These three officials,
who would later dub themselves the ``Three Amigos,'' reported
their favorable impressions of Ukraine's new president, who had
been elected on an anti-corruption platform, and recommended
that President Trump invite President Zelensky to the White
House.\443\ President Trump reacted negatively. He expressed
the view that Ukraine ``tried to take [him] down'' in 2016, and
told the Three Amigos to ``Talk to Rudy''--not U.S. diplomats
and experts--about Ukraine.\444\ Ambassador Sondland testified
that ``he understood the President's instruction to be a
directive to work with Mr. Giuliani if [the delegation] hoped
to advance relations with Ukraine.''\445\ Following that May 23
meeting, Mr. Giuliani made clear to Ambassadors Sondland and
Volker, ``who were directly communicating with the Ukrainians,
that a White House meeting would not occur until Ukraine
announced its pursuit of the two political
investigations.''\446\
---------------------------------------------------------------------------
\442\Ukraine Report at 16-17.
\443\Id.
\444\Id.
\445\Id. at 17.
\446\Id. at 19.
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With these directives in mind, Ambassadors Sondland and
Volker ``worked to obtain the necessary assurance from
President Zelensky that he would personally commit to initiate
the investigations in order to secure both'' the White House
call and meeting.\447\ On July 10, for example, ``Ambassador
Bolton hosted a meeting in the White House with two senior
Ukrainian officials, several American officials, including
Ambassadors Sondland and Volker, Secretary Perry, Dr. Fiona
Hill, Senior Director for Europe and Russia at the NSC, and Lt.
Col. Vindman.''\448\ When, as had become customary, the
Ukrainians asked about the ``long-delayed White House
meeting,'' Ambassador Sondland revealed ``an arrangement with
Acting Chief of Staff Mick Mulvaney to schedule the White House
visit after Ukraine initiated the `investigations.'''\449\
Despite Ambassador Bolton ending that meeting, Ambassador
Sondland ``ushered many of the attendees to the Ward Room
downstairs to continue their discussion'' and, at that meeting,
Ambassador Sondland explained again ``that he had an agreement
with Mr. Mulvaney that the White House visit would come only
after Ukraine announced the Burisma/Biden and 2016 Ukraine
election interference investigations.''\450\
---------------------------------------------------------------------------
\447\Id. at 19.
\448\Id.
\449\Id.
\450\Id. ``Following these discussions, Dr. Hill reported back to
Ambassador Bolton, who told her to `go and tell [the NSC Legal Advisor]
that I am not part of whatever drug deal Sondland and Mulvaney are
cooking up on this.' Both Dr. Hill and Lt. Col. Vindman separately
reported the incident to the NSC Legal Advisor.'' Id.
---------------------------------------------------------------------------
Over the next two weeks, ``Ambassadors Sondland and Volker
worked closely with Mr. Giuliani and senior Ukrainian and
American officials to ensure that,'' on the telephone call
between President Trump and President Zelensky, President
Zelensky would promise to undertake the investigations that Mr.
Giuliani had been pushing on the President's behalf.\451\ As
Ambassador Sondland testified, ``Mr. Giuliani was expressing
the desires of the President of the United States, and we knew
these investigations were important to the President.''\452\
The Ukrainians were reluctant to get involved, noting that they
did not want to be ``an instrument in Washington domestic,
reelection politics.''\453\ Mr. Giuliani and the American
officials made clear, however, that there would be no White
House meeting without the investigations.
---------------------------------------------------------------------------
\451\Id. at 18-20.
\452\Sondland Hearing Tr. at 18.
\453\Ukraine Report at 94.
---------------------------------------------------------------------------
b. The Solicitation
President Trump's official act of soliciting the
investigations is apparent on the face of the transcript of his
July 25 call with President Zelensky.\454\ On that call, he
requested that President Zelensky investigate the widely
debunked conspiracy theory that the Ukrainian government--and
not Russia--was behind the hack of Democratic National
Committee (DNC) computer network in 2016. According to this
conspiracy theory, the American cybersecurity firm CrowdStrike
moved a DNC server to Ukraine to prevent United States law
enforcement from examining them. Here is how President Trump
presented his solicitation:
---------------------------------------------------------------------------
\454\The White House, Memorandum of Telephone Conversation:
Telephone Conversation with President Zelenskyy of Ukraine 3 (July 25,
2019) (hereinafter ``July 25 Call Record''). That said, President
Trump's solicitation was not confined to the July 25 call, but rather
was reiterated and conveyed continuously by his agents within and
outside the United States Government (including Mr. Giuliani). See,
e.g., Ukraine Report at 34-35, 147-49.
I would like you to find out what happened with this
whole situation with Ukraine, they say Crowdstrike . .
. I guess you have one of your wealthy people . . . The
server, they say Ukraine has it. There are a lot of
things that went on, the whole situation. I think
you're surrounding yourself with some of the same
people. I would like to have the Attorney General call
you or your people and I would like you to get to the
bottom of it. As you saw yesterday, that whole nonsense
ended with a very poor performance by a man named
Robert Mueller, an incompetent performance, but they
say a lot of it started with Ukraine. Whatever you can
do, it's very important that you do it if that's
possible.\455\
---------------------------------------------------------------------------
\455\July 25 Call Record at 3.
Shortly thereafter, on the same phone call, President Trump
expressly solicited an investigation into former Vice President
Biden and his son. In so doing, he referenced former Vice
President's Biden involvement in the removal of a corrupt
---------------------------------------------------------------------------
former Ukrainian prosecutor:
The other thing, There's a lot of talk about Biden's
son, that Biden stopped the prosecution and a lot of
people want to find out about that so whatever you can
do with the Attorney General would be great. Biden went
around bragging that he stopped the prosecution so if
you can look into it . . . It sounds horrible to
me.\456\
---------------------------------------------------------------------------
\456\Id. at 4.
---------------------------------------------------------------------------
c. The Pressure Campaign
As set forth in the First Article of Impeachment,
``President Trump--acting both directly and through his agents
within and outside the United States Government--conditioned
two official acts on the public announcements that he had
requested.''\457\ These two official acts were: (1) the release
of vital military and security assistance to Ukraine that
President Trump had ordered suspended; and (2) a valuable,
strategically important head of state meeting with President
Trump at the White House.
---------------------------------------------------------------------------
\457\H. Res. 755, 116th Cong. (2019).
---------------------------------------------------------------------------
There is overwhelming evidence that President Trump made
these official acts conditional on his sought-after
announcements in order to pressure Ukraine. It is also clear
that Ukrainian officials came to understand that they were
being pressured in this manner. That evidence is
comprehensively explained in the Ukraine Report; we will
briefly summarize it here.
i. The Military and Security Assistance
On July 18, 2019, OMB notified the agencies that President
Trump had directed a hold on military and security assistance
funding for Ukraine. No explanation was provided for that
hold.\458\ This was exceedingly irregular, given that the
assistance had bipartisan Congressional support, was supported
by the President's national security agencies and advisors
(including the State Department, Department of Defense, and
National Security Council), and was widely perceived as crucial
to both Ukrainian and American security. Moreover, there were
substantial concerns about the legality of the hold under the
Impoundment Control Act.\459\ Adding to the irregularity, a
career civil servant at OMB with decades of experience in this
arena (Mark Sandy) was deprived of sign off authority, which
was shifted to a political appointee of President Trump
(Michael Duffey) who had virtually no relevant experience or
expertise and no history or stated interest in managing such
issues.\460\
---------------------------------------------------------------------------
\458\Ukraine Report at 72.
\459\Id. at 67-70.
\460\Id. at 78-80.
---------------------------------------------------------------------------
As early as July 25--the day that President Trump spoke by
phone to President Zelensky--Ukrainian officials recognized and
grew nervous about the delay in receiving their military and
security assistance. That same day, Ukrainian officials
contacted their American counterparts in Washington, D.C. to
express those concerns.\461\ Specifically, the Department of
Defense received two e-mails from the State Department
revealing that the Ukrainian Embassy was ``asking about the
security assistance'' and knew about the ``[security
assistance] situation to an extent.''\462\ Former Ukrainian
Deputy Foreign Minister, Olena Zerkal, also reported that her
office, and the Ukrainian Presidential Administration, received
a diplomatic cable from Ukrainian officials in Washington the
week of the July 25 call, stating that the Trump administration
had frozen military aid for Ukraine; she elaborated: ``We had
this information. . . . It was definitely mentioned there were
some issues.''\463\
---------------------------------------------------------------------------
\461\Id. at 22.
\462\Id. at 81, 173 n.451.
\463\Andrew E. Kramer, Ukraine Knew of Aid Freeze in July, Says Ex-
Top Official in Kyiv, N.Y. Times, Dec. 3, 2019.
---------------------------------------------------------------------------
In the weeks that followed, President Trump's top officials
came to understand and communicated to Ukrainian officials that
release of the assistance was in fact conditioned on President
Zelensky publicly announcing the two investigations that
President Trump had requested on his July 25 call. For example,
on August 22, Ambassador Sondland e-mailed Secretary Pompeo,
copying the State Department's Executive Secretary, Lisa Kenna,
that to break the ``logjam'' on the assistance, President
Zelensky should ``look [President Trump] in the eye'' and tell
him he would ``move forward publicly and with confidence on
those issues of importance to Potus and to the U.S.''\464\
Ambassador Sondland testified that the ``issues of importance
to Potus''' were the two investigations.\465\
---------------------------------------------------------------------------
\464\Ukraine Report at 127, 190 n.843 (quoting from written
statement of Ambassador Sondland in Impeachment Inquiry: Gordon
Sonland: Hearing Before the H. Perm. Select Comm. on Intelligence,
116th Cong. (Nov. 20, 2019)).
\465\Id. at 127; see also Sondland Hearing Tr. at 104.
---------------------------------------------------------------------------
Around this time, according to his testimony, Lt. Col.
Vindman ``was getting questions from Ukrainians about the
status of the hold on security assistance.''\466\ By August 28,
after Politico ``first reported that President Trump had
implemented a hold on nearly $400 million of U.S. military
assistance to Ukraine that had been appropriated by
Congress,''\467\ Ukrainian officials ``expressed alarm to their
American counterparts.''\468\ Ambassador Taylor states that the
Ukrainians were ``just desperate'' to receive the assistance,
and that ``American officials could provide little
reassurance.''\469\
---------------------------------------------------------------------------
\466\Ukraine Report at 82.
\467\Caitlin Emma & Connor O'Brien, Trump Holds Up Ukraine Military
Aid Meant to Confront Russia, Politico, Aug. 28, 2019.
\468\Ukraine Report at 129.
\469\Id.
---------------------------------------------------------------------------
On September 1, Ambassador Sondland stated to President
Zelensky's aide, Mr. Yermak, that ``the resumption of U.S. aid
would likely not occur until Ukraine took some kind of action
on the public statement that we had been discussing for many
weeks.''\470\ National Security Council senior director Timothy
Morrison also testified that he recalled this interaction.
According to Mr. Morrison, he saw Ambassador Sondland and Mr.
Yermak have a private conversation and, immediately after their
conversation ended, Ambassador Sondland walked over to Mr.
Morrison and reported that he had communicated to Mr. Yermak
that a statement about the investigations was needed ``to
obtain release of the aid.''\471\ That same day, Ambassador
Taylor texted Ambassador Sondland: ``Are we now saying that
security assistance and WH meeting are conditioned on
investigations?'' Ambassador Sondland then confirmed to
Ambassador Taylor over the phone that President Trump wanted
President Zelensky ``in a public box,'' making a ``public
statement'' about the investigations that President Trump had
requested on July 25. Ambassador Sondland agreed that the
United States position was that if President Zelensky did not
announce those investigations, Ukraine was not ``going to get''
the assistance.\472\
---------------------------------------------------------------------------
\470\Id. at 132.
\471\Id. at 180-81.
\472\Id. at 133-34.
---------------------------------------------------------------------------
On September 5, the Washington Post published an editorial
exposing President Trump's scheme, entitled ``Trump Tries to
Force Ukraine to Meddle in the 2020 Election.''\473\ Two days
later, on September 7, Ambassador Sondland called Mr. Morrison
to report on a call he had just concluded with President Trump.
Ambassador Sondland told Mr. Morrison that ``there was no quid
pro quo, but President Zelensky must announce the opening of
the investigations and he should want to do it.''\474\ The
following day, on September 8, Ambassador Sondland conveyed via
text message to Ambassadors Volker and Taylor, too, that he had
spoken with President Trump: ``Guys multiple convos with Ze,
Potus. Lets talk.''\475\ On the phone with Ambassador Taylor,
Ambassador Sondland then ``confirmed that he had talked to
President Trump'' and that ``President Trump was adamant that
President Zelensky himself had to clear things up and do it in
public. President Trump said it was not a quid pro quo.''\476\
Ambassador Sondland added that, following his call with
President Trump, he had told 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.'' In response, President Zelensky agreed to make a
public statement announcing the investigations in an interview
on CNN.\477\ Both Ambassadors Taylor and Sondland confirmed
that the term ``stalemate'' referred to the hold on the
security assistance to Ukraine.\478\ Early the next morning on
September 9, Ambassador Taylor texted Ambassadors Sondland and
Volker: ``As I said on the phone, I think it's crazy to
withhold security assistance for help with a political
campaign.''
---------------------------------------------------------------------------
\473\Editorial, Trump Tries to Force Ukraine to Meddle in the 2020
Election, Wash. Post, Sept. 5, 2019.
\474\Ukraine Report at 134.
\475\Id. at 135.
\476\Id. at 135. Ambassador Sondland's recitation of his call with
President Trump is the only evidence that President Trump suggested
this was ``not a quid pro quo.'' Moreover, Ambassador Sondland
testified that President Trump made that statement, unprompted, on
September 7--only after the White House had learned of a whistleblower
complaint regarding the July 25 call and President Trump's efforts to
pressure Ukraine, and the Washington Post had reported about the
President's pressure campaign on Ukraine. In addition, President Trump
immediately followed his stated denial of a quid pro quo by demanding
that President Zelensky still make a public announcement, while the
military assistance remained on an unexplained hold. For these reasons,
and those detailed in the Ukraine Report, President Trump's self-
serving denial of conditionality after he had been caught is not
credible.
\477\Id. at 135.
\478\Id.
---------------------------------------------------------------------------
Ultimately, the connection between the assistance and the
announcements was apparent to the relevant parties--including
United States officials working with Ukraine and senior
Ukrainian officials. Ambassador Sondland and Mr. Holmes both
testified that President Trump's use of military and security
assistance to secure his sought-after announcements became as
clear as ``two plus two equals four.''\479\ Moreover, at a
press conference on October 17, Acting White House Chief of
Staff Mick Mulvaney confirmed this equation. According to Mr.
Mulvaney, President Trump ``[a]bsolutely'' mentioned
``corruption related to the DNC server'' in connection with the
security assistance. Mr. Mulvaney also stated that the server
was part of ``why we held up the money.'' After a reporter
attempted to clarify this explicit acknowledgement of a quid
pro quo, Mr. Mulvaney replied: ``We do that all the time with
foreign policy.'' He added, ``I have news for everybody: get
over it. There is going to be political influence in foreign
policy.''\480\
---------------------------------------------------------------------------
\479\Ukraine Report at 23; Sondland Hearing Tr. at 58.
\480\Ukraine Report at 139; The White House, Press Briefing by
Acting Chief of Staff Mick Mulvaney (Oct. 17, 2019).
---------------------------------------------------------------------------
ii. The White House Visit
Turning to the White House visit, documentary evidence and
testimony from multiple witnesses confirms that this official
act--like the release of assistance--was conditional on Ukraine
announcing investigations into former Vice President Biden and
interference in the 2016 election.
As discussed above, prior to the July 25 call, President
Trump's personal attorney repeatedly urged Ukraine to pursue
investigations into ``two matters of intense interest'' to his
client, President Trump: the ``involvement of the former Vice
President Joseph R. Biden Jr.'s son'' on the board of a
Ukrainian gas company and 2016 election interference.\481\ In
those statements, Mr. Giuliani clarified that ``my only client
is the President of the United States,'' and that this wasn't
``foreign policy,'' but rather ``information that will be very,
very helpful'' to President Trump.\482\ Ambassadors Sondland
and Volker were also enlisted by President Trump to work with
Mr. Giuliani and ``obtain the necessary assurance from
President Zelensky that he would personally commit to initiate
the investigations,''\483\ and each had delivered their
messages to the Ukrainians prior to the call. On July 2 in
Toronto, Ambassador Volker ``conveyed the message directly to
President Zelensky, specifically referencing the `Giuliani
factor.'''\484\ On July 19, Ambassador Sondland emailed several
top Administration officials, confirming that Ambassador
Sondland had ``talked to Zelensky just now,'' and that
President Zelensky was ``prepared to receive Potus'' call'' and
``assure [President Trump] that he intends to run a fully
transparent investigation and will `turn over every
stone.'''\485\ On the morning of the July 25 call, Ambassador
Volker texted President Zelensky's aide: ``Heard from White
House--assuming President Z convinces trump he will
investigate/`get to the bottom of what happened' in 2016, we
will nail down date for visit to Washington. Good luck!''\486\
---------------------------------------------------------------------------
\481\Vogel Giuliani
\482\Id.
\483\Id. at 18.
\484\Id. at 19.
\485\Sondland Opening Statement at 21, Ex. 4.
\486\Ukraine Report at 20.
---------------------------------------------------------------------------
On the July 25 call itself, when President Zelensky thanked
President Trump for ``great support in the area of defense''
and raised the matter of purchasing anti-tank missiles from the
United States, President Trump responded, ``I would like you to
do us a favor though.'' That ``favor,'' President Trump then
made clear, was for Ukraine to investigate the 2016 United
States Presidential election, as well as former Vice President
Biden and his son. These were the same two investigations that
Mr. Giuliani had repeatedly, publicly stated in the preceding
months were of ``intense interest'' to President Trump.
President Zelensky understood what President Trump meant about
the connection between a meeting and these investigations: ``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 [sic] you that we will be very serious
about the case and will work on the investigation.''\487\
President Zelensky also confirmed that his staff assistant had
spoken to Mr. Giuliani, and President Trump reaffirmed that Mr.
Giuliani ``very much knows what's going on.''
---------------------------------------------------------------------------
\487\July 25 Call Record at 5.
---------------------------------------------------------------------------
The pressure for the investigations continued after the
call, as well. Several weeks later, on August 9, when
discussing possible dates for a White House visit, Ambassador
Sondland wrote to Ambassador Volker: ``I think potus really
wants the deliverable.'' The next day, President Zelensky's
aide texted Ambassador Volker about setting a date for the
meeting before making a statement announcing the
investigations, stating: ``I think it's possible to make this
declaration and mention all these things. Which we discussed
yesterday. But it will be logic [sic] to do after we receive a
confirmation of date. We inform about date of visit and about
our expectations and our guarantees for future visit.''
Ambassador Volker replied: ``Let's iron out statement and use
that to get date and then PreZ [Zelensky] can go forward with
it?'' President Zelensky's aide responded, ``[o]nce we have a
date, will call for a press briefing, announcing upcoming visit
and outlining vision for the reboot of US-UKRAINE relationship,
including among other things Burisma and election meddling in
investigations.''\488\ The day after that, Ambassador Sondland
emailed Secretary of State Pompeo: ``Kurt & I negotiated a
statement from Ze [Zelensky] to be delivered for our review in
a day or two. The contents will hopefully make the boss [i.e.,
President Trump] happy enough to authorize an
invitation.''\489\
---------------------------------------------------------------------------
\488\Text Message from Yermak to Ambassador Volker (Aug. 10, 2019,
5:42 PM).
\489\E-mail from Ambassador Sondland to Thomas Brechbuhl and Lisa
Kenna (Aug. 11, 2019, 10:31 AM) (forwarded to Secretary of State
Pompeo).
---------------------------------------------------------------------------
Based on this and other evidence, it is clear that
Ambassador Sondland spoke truthfully when he stated: ``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.''\490\
---------------------------------------------------------------------------
\490\ Sondland Hearing Tr. at 26. While President Trump and
President Zelensky met at the U.N. General Assembly on September 25, no
White House visit date has been set. The fact of the White House visit,
as confirmed in the Ukraine Report, is ``critical'' to President
Zelensky, to show ``U.S. support at the highest levels.'' Ukraine
Report at 84 & n.456 (quoting Holmes Dep. Tr. at 18).
---------------------------------------------------------------------------
By making military and security assistance and a White
House meeting conditional on announcing investigations that
would benefit him politically, President Trump used official
power to pressure Ukraine to make those announcements. Ukraine
is at war with Russia and more than 13,000 Ukrainians have died
in that conflict.\491\ Ukraine relies heavily on the United
States for military and security assistance and support on the
global stage.\492\ But as Ambassador Taylor described in his
deposition, Ukraine is also ``a young nation struggling to
break free of its past, hopeful their new government will
finally usher in a new Ukraine, proud of independence from
Russia eager to join Western institutions and enjoy a more
secure and prosperous life.''\493\ That is why, for weeks,
Ukrainian officials expressed concern about President Trump's
demands, advising United States officials that they did not
want to be an ``instrument in Washington domestic, reelection
politics.''\494\ As Ukrainian Prosecutor General Ruslan
Ryaboshapka stated, in an apparent reference to President
Trump's demand for Ukrainian interference in United States
elections, ``[i]t's critically important for the west not to
pull us into some conflicts between their ruling elites, but to
continue to support so that we can cross the point of no
return.''\495\ Nonetheless, as President Trump's pressure
campaign continued, and as Ukraine contemplated the loss of
military and security assistance necessary to defend itself in
active hostilities with Russia, the Ukrainians became
desperate.\496\ So desperate, in fact, that, as Ambassador
Sondland told the President, President Zelensky was willing to
do anything that President Trump asked of him.\497\ And, as set
forth above, President Zelensky capitulated, and ultimately
agreed to publicly announce the investigations in an interview
on CNN.\498\ President Zelensky canceled that interview only
after President Trump's scheme was exposed and the assistance
was released.\499\
---------------------------------------------------------------------------
\491\John M. Donnelly, Ukrainian Lives Hung in Balance as Trump
Held Up Aid, Roll Call, Oct. 24, 2019.
\492\See id.
\493\Taylor Dep. Tr. at 42-43.
\494\See Text Message from Ambassador William Taylor to Ambassador
Sondland (July 20, 2019, 1:45 AM).
\495\Roman Olearchyk, Cleaning Up Ukraine in the Shadow of Trump,
Fin. Times, Nov. 27, 2019 (interview with Ruslan Ryaboshapka)
(hereinafter ``Olearchyk'').
\496\See Taylor Dep. Tr. at 137-38 (``Mr. Yermak and others were
trying to figure out why this was . . . . They thought that there must
be some rational reason for this being held up, and they just didn't--
and maybe Washington they didn't understand how important this
assistance was to their fight and to their armed forces. And so maybe
they could figure--so they were just desperate.'').
\497\Hill-Holmes Hearing Tr. 24, 54.
\498\Impeachment Inquiry: Ambassador William Taylor and Mr. George
Kent: Hearing Before the H. Perm. Select Comm. on Intelligence, 116th
Cong. 41 (Nov. 13, 2019).
\499\Andrew E. Kramer, Ukraine's Zelensky Bowed to Trump's Demands,
Until Luck Spared Him, N.Y. Times, Nov. 7, 2019.
---------------------------------------------------------------------------
To be sure, President Zelensky has subsequently denied that
President Trump pressured him.\500\ But although President
Zelensky did not publicly announce the investigations, the
power disparity between the United States and Ukraine remains
unchanged, and President Zelensky thus remains under pressure
from President Trump to this day. As Mr. Holmes testified,
there are still things the Ukrainians want and need from
President Trump, including a meeting with the President in the
Oval Office; for these reasons, Mr. Holmes explained,
---------------------------------------------------------------------------
\500\Tara Law, ``Nobody Pushed Me.'' Ukrainian President Denies
Trump Pressured Him to Investigate Biden's Son, Time, Sept. 25, 2019.
I think [the Ukrainians are] being very careful. They
still need us now going forward. In fact, right now,
President Zelensky is trying to arrange a summit
meeting with President Putin in the coming weeks, his
first face to face meeting with him to try to advance
the peace process. He needs our support. He needs
President Putin to understand that America supports
Zelensky at the highest levels. So this doesn't end
with the lifting of the security assistance hold.
Ukraine still needs us, and as I said, still fighting
this war this very day.\501\
---------------------------------------------------------------------------
\501\Ukraine Report at 146-47.
Ambassador Taylor likewise confirmed that, as President
Zelensky is currently engaging in negotiations with President
Putin concerning the war on their border, Russia is ``watching
closely to gauge the level of American support'' for
Ukraine.\502\ The United States' public and unwavering support
is therefore critical to Ukraine in approaching those
negotiations from a position of strength. Indeed, just last
week on December 9, President Zelensky met with President Putin
to discuss and negotiate an end to the war. President
Zelensky's team was ``discouraged by the absence of expected
support'' from President Trump in advance of that meeting, ``as
well as the lack of follow-through from the White House on a
promised Oval Office meeting.\503\ Moreover, the next day, on
December 10, President Trump hosted the Russian foreign
minister in the Oval Office.\504\
---------------------------------------------------------------------------
\502\Id. at 129.
\503\Kenneth P. Vogel & Andrew E. Kramer, Ukraine's Leader, Wiser
to Washington, Seeks New Outreach to Trump, N.Y. Times (Dec. 13, 2019).
\504\Id.
---------------------------------------------------------------------------
In addition, although the majority of the military and
security assistance was ultimately released, certain of the
funds to Ukraine remain unobligated,\505\ and, moreover, in
order to ensure that Ukraine ``did not permanently lose $35
million of the critical military assistance frozen by the White
House,'' Congress had to pass a provision to ensure that the
military assistance could be spent.\506\ ``As of November 2019,
Pentagon officials confirmed that the $35 million in security
assistance originally held by the President and extended by
Congress had still yet to be disbursed,'' and would not provide
an explanation for the delay.\507\
---------------------------------------------------------------------------
\505\Molly O'Toole & Sarah D. Wire, $35 Million in Pentagon Aid
hasn't Reached Ukraine, Despite White House Assurances, Los Angeles
Times, Nov. 11, 2019.
\506\Ukraine Report at 145. Notably, ``Ms. Cooper testified that
such an act of Congress was unusual--indeed, she had never heard of
funding being extended in this manner.'' Id.
\507\Id.
---------------------------------------------------------------------------
The evidence thus demonstrates that President Trump used
the powers of his office to make Ukraine an offer it had no
real choice but to accept: Help me get re-elected or you will
not get the military and security assistance and diplomatic
support you desperately need from the United States of America.
In other words, under these circumstances, it is understandable
that President Zelensky has sought to serve his national
interest by avoiding any statement or confession that might
offend President Trump and also demonstrate his own weakness in
dealings with the United States and on the world stage. But the
record supports only one conclusion. President Trump took
advantage of Ukraine's vulnerability and used his high office
to solicit and pressure Ukraine to announce criminal
investigations into a United States citizen. These
investigations would clearly help President Trump's re-election
campaign and harm a political opponent.
2. President Trump Exercised the Powers of His Office With the Corrupt
Motive of Obtaining a Personal Political Benefit
In exercising official power to obtain a personal benefit,
the President acted with motives forbidden by the Constitution.
The first article of impeachment thus states: ``President Trump
engaged in this scheme or course of conduct for corrupt
purposes in pursuit of personal political benefit.''\508\
---------------------------------------------------------------------------
\508\H. Res. 755, 116th Cong. art. I (2019).
---------------------------------------------------------------------------
To evaluate whether President Trump acted in pursuit of
personal political advantage, the Committee has carefully
considered the full evidentiary record, as well as arguments
put forth by the Minority in its ``Report of Evidence in the
Democrats'' Impeachment Inquiry in the House of
Representatives'' (the ``Minority'' or the ``Minority Report'')
seeking to demonstrate that the President acted in pursuit of
legitimate policy goals.\509\ Consistent with past practice and
constitutional requirements, the Committee has focused not on
reasons that could have motivated the President's conduct, but
rather on what the record shows about his actual motives. After
all, ``[t]he Framers designed impeachment to root out abuse and
corruption, even when a President masks improper intent with
cover stories.''\510\ The question is therefore whether ``the
evidence tells a story that does not match the [asserted]
explanation.''\511\
---------------------------------------------------------------------------
\509\See Ukraine Report at 47-49.
\510\Id. at 47.
\511\Dep't of Com. v. New York, 139 S. Ct. 2551, 2575 (2019).
---------------------------------------------------------------------------
a. The July 25 Call and its Background
On President Trump's July 25 phone call with President
Zelensky, President Trump referenced two very specific
investigations.\512\ Then, in describing who he wanted Ukraine
to investigate, President Trump mentioned only two people by
name: former Vice President Biden and his son.\513\ He also
referred more generally to investigating the 2016 United States
Presidential election, but reserved specificity for the
Bidens.\514\ He used their name three times on the call.
---------------------------------------------------------------------------
\512\July 25 Call Record at 3.
\513\Id. at 3-4.
\514\Id.
---------------------------------------------------------------------------
Any presumptions of good faith that the President might
normally enjoy must be suspended when he calls a foreign leader
and asks that leader to investigate a United States citizen who
is also an announced candidate in the primaries for the next
Presidential election. To be sure, the call summary ``contains
no reference to 2020 or President Trump's reelection
bid.''\515\ But for good reason, multiple officials on the call
immediately understood that President Trump was soliciting
President Zelensky to announce an investigation into his
political opponent. As Lieutenant Colonel Alexander Vindman
testified, ``I thought it was wrong. I thought it was wrong for
the President of the United States to call for an investigation
of--call a foreign power to investigate a U.S. citizen.''\516\
Jennifer Williams, an advisor to Vice President Michael Pence,
similarly testified that ``it struck me as unusual and
inappropriate.''\517\ She later added, ``the references to
specific individuals and investigations, such as former Vice
President Biden and his son, struck me as political in
nature.''\518\
---------------------------------------------------------------------------
\515\Republican Staff of the H. Perm. Select Comm. on Intelligence,
116th Cong., Rep. on Evidence in the Democrats' Impeachment Inquiry in
the House of Representatives 12 (Comm. Print 2019) (hereinafter
``Minority Report'').
\516\Vindman Dep. Tr. at 152; see also Impeachment Inquiry:
Jennifer Williams and Alexander Vindman: Hearing Before the H. Perm.
Select Comm. on Intelligence, 116th Cong. 19 (Nov. 19, 2019) (``On July
25th, 2019, the call occurred. I listened in on the call in the
Situation Room with White House colleagues. I was concerned by the
call. What I heard was inappropriate, and I reported my concerns to Mr.
Eisenberg. It is improper for the President of the United States to
demand a foreign government investigate a U.S. citizen and a political
opponent. I was also clear that if Ukraine pursued an investigation--it
was also clear that if Ukraine pursued an investigation into the 2016
elections, the Bidens and Burisma, it would be interpreted as a
partisan play.'').
\517\Williams Dep. Tr. at 149.
\518\Vindman-Williams Hearing Tr. at 34.
---------------------------------------------------------------------------
Events leading up to the July 25 call strongly support Ms.
Williams's concern that President Trump's request was
``political in nature.'' On May 2, 2019, President Trump
retweeted a New York Times article entitled Biden Faces
Conflict of Interest Questions That Are Being Promoted by Trump
and Allies.\519\ That article concluded that Mr. Giuliani's
efforts underscored ``the Trump campaign's concern about the
electoral threat from the former vice president's presidential
campaign'' and noted that ``Mr. Giuliani's involvement raises
questions about whether Mr. Trump is endorsing an effort to
push a foreign government to proceed with a case that could
hurt a political opponent at home.''\520\ On May 9, 2019, it
was reported that President Trump's private lawyer, Mr.
Giuliani, planned to meet with President Zelensky ``to urge him
to pursue inquiries that allies of the White House contend
could yield new information about two matters of intense
interest to Mr. Trump.''\521\ Those matters were the same two
investigations that President Trump raised on his July 25
call.\522\ And as Mr. Giuliani stated in early May, ``this
isn't foreign policy.''\523\ Instead, Mr. Giuliani was seeking
information that ``will be very, very helpful to my client,''
namely ``the President of the United States.''\524\ Again on
May 9, Mr. Giuliani stated on Fox News, ``I guarantee you, Joe
Biden will not get to election day without this being
investigated.''\525\ The next day, in an interview, upon
learning that Mr. Giuliani was traveling to Ukraine to pursue
investigations, President Trump responded, ``I will speak to
him about it before he leaves.''\526\
---------------------------------------------------------------------------
\519\Donald J. Trump (@realDonaldTrump), Twitter (May 2, 2019, 6:21
AM) (retweeting Kenneth P. Vogel & Iuliia Mendel, Biden Faces Conflict
of Interest Questions That Are Being Promoted by Trump and Allies, N.Y.
Times, May 1, 2019) (online and searchable at http://
www.trumptwitterarchive.com/archive).
\520\ Vogel & Mendel, Biden Faces Conflict of Interest Questions.
\521\See Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push
for Inquiries That Could Help Trump, N.Y. Times, May 9, 2019.
\522\See id.
\523\Id.
\524\In this interview, Mr. Giuliani stated: ``My only client is
the president of the United States . . . He's the only one I have an
obligation to report to.'' Id. He also stated that the information he
sought to gather ``may turn out to be helpful to my government''--
confirming that advancing his client's interests was all that mattered,
and any incidental relation to United States public policy was
secondary and incidental. See id.
\525\Ian Schwartz, Giuliani: ``Massive Collusion'' Between DNC,
Obama Admin, Clinton People & Ukraine to Create False Info About Trump,
Real Clear Politics, May 10, 2019.
\526\Andrew Restuccia et al., Transcript: Politico Interviews
President Donald Trump on Joe Biden, Impeachment, Bill Barr, North
Korea, Politico, May 10, 2019.
---------------------------------------------------------------------------
Over the months that followed, Mr. Giuliani aggressively
pursued his efforts to get Ukraine to investigate Mr. Biden.
During these efforts--and subsequently--he claimed to act on
behalf of his client, President Trump. On October 30, 2019, he
tweeted, ``All of the information I obtained came from
interviews conducted as . . . private defense counsel to POTUS,
to defend him against false allegations.''\527\ On November 6,
2019, he tweeted, ``The investigation I conducted concerning
2016 Ukrainian collusion and corruption, was done solely as a
defense attorney to defend my client against false charges . .
.''\528\ The Ukraine Report observes, ``Numerous U.S.
officials, including Ambassadors Sondland, Volker, and Bolton,
as well as Lt. Col. Vindman and others, were well aware of Mr.
Giuliani's efforts to push Ukraine to pursue these political
investigations.''\529\
---------------------------------------------------------------------------
\527\Rudolph Giuliani (@RudyGiuliani), Twitter (Oct. 30, 2019, 3:15
PM), https://twitter.com/RudyGiuliani/status/1189667099871981573;
Rudolph Giuliani (@RudyGiuliani), Twitter (Oct. 30, 2019, 3:15 PM),
https://twitter.com/RudyGiuliani/status/1189667101079932928.
\528\Rudolph Giuliani (@RudyGiuliani), Twitter (Nov. 6, 2019, 12:43
PM), https://twitter.com/RudyGiuliani/status/1192180680391843841.
\529\Ukraine Report at 90.
---------------------------------------------------------------------------
As Mr. Giuliani worked hard to advance his client's
personal and political interests--and not ``foreign policy''--
President Trump also required United States officials
responsible for Ukraine to ``talk with Rudy.''\530\ For
example, Ambassador Sondland recalled that during a meeting in
the Oval Office on May 23 with the U.S. officials who had
attended the Ukrainian inauguration, President Trump ``just
kept saying: Talk to Rudy, talk to Rudy.''\531\ Ambassador
Sondland explained that they ``understood that talk with Rudy
meant talk with Mr. Rudy Giuliani, the president's personal
lawyer,'' and ``if we did not talk to Rudy, nothing would move
forward on Ukraine.''\532\ President Trump thus directed key
U.S. officials to coordinate with and carry out the requests of
his private lawyer, who was acting ``solely'' as President
Trump's ``defense attorney,'' regarding Ukraine.\533\
---------------------------------------------------------------------------
\530\See Sondland Hearing Tr. at 4.
\531\Sondland Dep. Tr. at 61-62.
\532\Sondland Hearing Tr. at 21, 71.
\533\Jordan Fabian, Giuliani Says Ukraine Efforts `Solely' for
Trump's Legal Defense, Bloomberg, Nov. 6, 2019.
---------------------------------------------------------------------------
Mr. Giuliani's importance was not lost on the Ukrainians.
By July 10, 2019, President Zelensky's top aide came to
appreciate ``that the key for many things is Rudi [sic] and I
ready to talk with him at any time,''\534\ and, as set forth
above, key U.S. officials worked with Mr. Giuliani to convey
messages to the Ukrainians and prepare President Zelensky for
his July 25 call. Thus, on the July 25 call, President Zelensky
preemptively mentioned that ``we are hoping very much that Mr.
Giuliani will be able to travel to Ukraine and we will meet
once he comes to Ukraine.''\535\ President Trump replied, ``I
would like him to call you. I will ask him to call you along
with the Attorney General. Rudy very much knows what's
happening and he is a very capable guy. If you could speak to
him that would be great.''\536\ Two sentences later, President
Trump turned directly to his request that President Zelensky
announce an investigation into the Bidens--and then, later in
their discussion, confirmed that ``I will have Mr. Giuliani
give you a call and I am also going to have Attorney General
Barr call . . .''\537\ The call transcript thus confirms that
President Trump saw Mr. Giuliani as his point person for
organizing an investigation into the Bidens and the 2016
election, and that President Zelensky knew of Mr. Giuliani's
role. Once again, it is therefore noteworthy that Mr. Giuliani
has stated emphatically that he acted ``solely'' to advance his
client's own interests--and that he was not engaged in
``foreign policy.''\538\
---------------------------------------------------------------------------
\534\Text Message from Yermak to Ambassador Volker (July 10, 2019,
4:06 PM).
\535\July 25 Call Record at 3.
\536\Id. at 3-4.
\537\Id. at 4.
\538\See Vogel Giuliani. In the months following the July 25 call,
as President Trump through his agents continued to apply pressure on
Ukraine to announce the investigations, call records confirm that Mr.
Giuliani was in regular communication with the White House, Ambassadors
Volker and Sondland, and members of President Zelensky's
administration. Ukraine Report at 114-21 & nn.719-804.
---------------------------------------------------------------------------
b. Additional Evidence of Corrupt Intent
Many other considerations support the conclusion that
President Trump's concerns had nothing to do with the
legitimate foreign policy interests of the United States and
everything to do with the President's personal political
interests. First, after the removal of Ambassador Yovanovitch,
President Trump's primary focus relating to Ukraine throughout
this period was the announcement of two investigations that
would benefit him politically. The day after the July 25 call,
President Trump called Ambassador Sondland to ask whether
President Zelensky ``was going to do the investigation.''\539\
Ambassador Sondland stated that President Zelensky was ``going
to do it'' and would do ``anything you ask him to.''\540\
According to David Holmes, who overheard the conversation,
Ambassador Sondland and President Trump spoke only about the
investigation in their discussion about Ukraine.\541\ The
President made no mention of other major issues of importance
in Ukraine, including President Zelensky's aggressive anti-
corruption reforms and the ongoing war it was fighting against
Russian-led forces in eastern Ukraine.\542\ After Ambassador
Sondland hung up the phone, he told Mr. Holmes that President
Trump ``did not give a shit about Ukraine.''\543\ Rather, he
explained, the President cared only about ``big stuff'' that
benefitted him personally, like ``the Biden investigation that
Mr. Giuliani was pitching.''\544\
---------------------------------------------------------------------------
\539\See Hill-Holmes Hearing Tr. at 29.
\540\Id.
\541\See id. at 29-30, 52.
\542\See generally July 25 Call Record.
\543\Holmes Dep. Tr. at 25; see also Hill-Holmes Hearing Tr. at 29.
\544\Holmes Dep. Tr. at 25; see also Hill-Holmes Hearing Tr. at 29-
30.
---------------------------------------------------------------------------
Second, in pursuit of these investigations, President Trump
made it clear to Ambassador Sondland--who conveyed this message
to Ambassador Taylor--that ``everything was dependent on such
an announcement, including security assistance.''\545\
Ambassador Sondland's admission confirms that President Trump's
actions were motivated only by the announcement of
investigations. Ukraine is a key strategic partner of the
United States. It had just elected a promising new leader who
ran on an anti-corruption platform and was making strong
progress in his reform agenda. But it had been invaded by
Russia and depended heavily on United States support and
assistance. The United States had provided such assistance on a
bipartisan basis, with an overwhelming consensus in Congress
and the national security community that this was vital to our
own national interests.\546\ To be sure, the President has
broad latitude for certain policy judgments in foreign affairs
in order to advance the national security interests of the
country as a whole, but no witness interpreted the President's
request for these investigations to be a change in policy, nor
did his cabinet or Vice President.\547\ This further supports
the alternative and only plausible explanation that the
President pressed for the public announcement of those
investigations because they were of great personal political
value to him.\548\
---------------------------------------------------------------------------
\545\Taylor-Kent Hearing Tr. at 42.
\546\Ukraine Report at 68-70.
\547\Id. at 132 (describing Ms. Williams' testimony that during the
September 1 meeting, the Vice President ``assured President Zelensky
that there was no change in U.S. policy in turns of our . . . full-
throated support for Ukraine and its sovereignty and territorial
integrity.''); Williams Dep. Tr. at 83.
\548\ That point is especially noteworthy given testimony
indicating that President Trump did not actually care if the
investigations occurred, but just wanted them to be announced. When
asked by Chairman Schiff if President Zelensky ``had to get those two
investigations if [the White House meeting] was going to take place,''
Ambassador Sondland responded: ``[President Zelensky] had to announce
the investigations. He didn't actually have to do them, as I understood
it.'' Sondland Hearing Tr. at 43.
The Minority Report claims that there is no evidence of corrupt
intent because the U.S. ``government did not convey the pause to the
Ukrainians.'' Minority Report at ii. But, as explained above, this
argument rests on a faulty premise. Ukraine did learn that the
assistance had been withheld. And Ukrainian officials came to
understand through their communications with United States officials
that both the meeting and the military assistance depended on bowing to
President Trump's demand for investigations.
---------------------------------------------------------------------------
Third, the President's request for these investigations
departed from established channels for making such a request.
On the July 25 call, President Trump told President Zelensky
that he should speak to Mr. Giuliani and Attorney General
Barr.\549\ But after the July 25 transcript was released, the
Department of Justice publicly stated as follows:
---------------------------------------------------------------------------
\549\July 25 Call Record at 3-5.
The President has not spoken with the Attorney
General about having Ukraine investigate anything
relating to former Vice President Biden or his son. The
President has not asked the Attorney General to contact
Ukraine--on this or any other matter. The Attorney
General has not communicated with Ukraine--on this or
any other subject. Nor has the Attorney General
discussed this matter, or anything relating to Ukraine,
with Rudy Giuliani.\550\
---------------------------------------------------------------------------
\550\Statement of Kerri Kupec, Dep't of Just. (Sept. 25, 2019).
Ukraine's current Prosecutor General Ruslan Ryaboshapka,
who assumed his new position in late August 2019, has since
confirmed the Justice Department's account. He told The
Financial Times in late November 2019 that Attorney General
Barr had made no formal request regarding a potential
investigation into allegations of wrongdoing by former Vice
President Biden.\551\
---------------------------------------------------------------------------
\551\See Olearchyk; see also Ukraine Report at 123. Moreover, with
respect to election interference, the President's entire intelligence
community had already concluded that Russia was responsible for
interfering in the 2016 election and, as President Trump's former
Homeland Security Advisor Tom Bossert made clear, the idea of Ukraine
hacking the DNC server was ``not only a conspiracy theory, it is
completely debunked.'' Id. at 42.
---------------------------------------------------------------------------
Many Administration officials have also confirmed that
there was no formal investigation into these matters within the
Department of Justice or formal request to Ukraine for
information in connection to the investigations and, moreover,
that without going through the official process, the
investigations were not proper. As Ambassador Volker testified,
``[Mr. Yermak] said, and I think quite appropriately, that if
they [Ukraine] are responding to an official request, that's
one thing. If there's no official request, that's different.
And I agree with that.''\552\ When Ambassador Volker discovered
that no official request for investigations had been conveyed
by the Department of Justice, he recalls thinking, ``let's just
not go there.''\553\
---------------------------------------------------------------------------
\552\Volker Dep. Tr. at 198.
\553\Id. at 197.
---------------------------------------------------------------------------
In his testimony, Ambassador Taylor corroborated this
account. He told the Committees that, on August 16, in a text
message exchange with Ambassador Volker, he ``learned that Mr.
Yermak had asked that the United States submit an official
request for an investigation into Burisma's alleged violations
of Ukrainian law, if that is what the United States
desired.''\554\ Ambassador Taylor noted that ``a formal U.S.
request to the Ukrainians to conduct an investigation based on
violations of their own law'' was ``improper'' and advised
Ambassador Volker to ``stay clear.''\555\ Mr. Kent similarly
testified that on August 15, Ambassador Volker's special
assistant asked him whether there was any precedent for the
United States asking Ukraine to conduct investigations on its
behalf. Mr. Kent replied: ``[I]f you're asking me have we ever
gone to the Ukrainians and asked them to investigate or
prosecute individuals for political reasons, the answer is, I
hope we haven't, and we shouldn't because that goes against
everything that we are trying to promote in post-Soviet states
for the last 28 years, which is the promotion of the rule of
law.''\556\
---------------------------------------------------------------------------
\554\Taylor-Kent Hearing Tr. at 39.
\555\Id.
\556\Kent Dep. Tr. at 26.
---------------------------------------------------------------------------
Fourth, the President's decision disregarded United States
foreign policy towards Ukraine and did so abruptly and without
explanation. To make a demand that benefits him personally,
while endangering the rights of a United States citizen and
political opponent is a bright red flag that supports only one
conclusion--that the President was putting his own personal and
political interests over the Nation's foreign policy interests.
There is no dispute that President Trump's requested
investigations were not part of any U.S. policy objectives
relating to Ukraine, including its anti-corruption policies.
Mr. Morrison, Lt. Col. Vindman, Mr. Kent, and Ambassador Taylor
all confirmed that an investigation into the Bidens, or the
2016 election, was not a stated or recognized United States
foreign policy objective.\557\ Notably, President Trump was
briefed on official policy prior to both calls that he had with
President Zelensky--on April 21 and July 25.\558\ Yet he chose
not to follow talking points about corruption reform,\559\ and
instead decided on the July 25 call to go off-book and seek the
criminal investigation of his political opponent.
---------------------------------------------------------------------------
\557\Impeachment Inquiry: Kurt Volker and Tim Morrison: Hearing
Before the H. Perm. Select Comm. on Intelligence, 116th Cong. 147 (Nov.
19, 2019) (confirming that he did not follow-up on the President's
request to ``investigate the Bidens'' because he did ``not understand
it as a policy objective''); Vindman Hearing Tr. at 119 (confirming
that he prepared the talking points for the call, that those talking
points did not ``contain any discussion of investigations into the 2016
election, the Bidens, or Burisma,'' and that he was not ``aware of any
written product from the National Security Council'' suggesting those
investigations were part of ``the official policy of the United
States''); Taylor-Kent Hearing Tr. at 179 (``Mrs. Demings[:] Was Mr.
Giuliani promoting U.S. national interests or policy in Ukraine . . . ?
Ambassador Taylor[:] I don't think so, ma'am. . . . Mr. Kent[:] No, he
was not. . . . Mrs. Demings[:] . . . What interest do you believe he
was promoting. . . . ? Mr. Kent[:] ``I believe he was looking to dig up
political dirt against a potential rival in the next election cycle. .
. . Ambassador Taylor[:] I agree with Mr. Kent.'').
\558\Vindman-Williams Hearing Tr. at 119.
\559\Ukraine Report at 52 (citing Deb Riechmann et al., Conflicting
White House Accounts of 1st Trump-Zelenskiy Call, Associated Press,
Nov. 15, 2019).
---------------------------------------------------------------------------
Finally, President Trump's request was almost universally
viewed by key United States and Ukrainian officials as
improper, unusual, problematic, and, most importantly, purely
political:
Mr. Holmes: ``I was shocked the requirement was so
specific and concrete. While we had advised our Ukrainian
counterparts to voice a commitment to following the rule of law
and generally investigating credible corruption allegations,
this was a demand that President Zelensky personally commit on
a cable news channel to a specific investigation of President
Trump's political rival.''\560\
---------------------------------------------------------------------------
\560\Hill-Holmes Hearing Tr. at 32.
---------------------------------------------------------------------------
Dr. Hill: ``[Ambassador Sondland] was being
involved in a domestic political errand, and we were being
involved in national security foreign policy, and those two
things had just diverged.''\561\
---------------------------------------------------------------------------
\561\Id. at. 92.
---------------------------------------------------------------------------
Lt. Col. Vindman: ``What I was trying to do . . .
was express my concerns about something that I viewed to be
problematic.''\562\
---------------------------------------------------------------------------
\562\Vindman Dep. Tr. at 98.
---------------------------------------------------------------------------
Ambassador Taylor: ``The Ukrainians did not owe
President Trump anything. And holding up security assistance
for domestic political gain was crazy.''\563\
---------------------------------------------------------------------------
\563\Taylor-Kent Hearing Tr. at 45 (statement of Ambassador
Taylor).
---------------------------------------------------------------------------
Other officials also voiced alarm. For example, Dr. Hill
testified that Ambassador Bolton told her to ``go and tell the
[NSC Legal Advisor] that I am not part of whatever drug deal
Sondland and Mulvaney are cooking up on this''; Dr. Hill
explained that ``drug deal'' referred to Ambassador Sondland
stating in a July 10 meeting, which included Ukrainian
officials, that he had an agreement with Mr. Mulvaney for a
White House meeting ``if [Ukraine would] go forward with
investigations.''\564\ On July 11, Dr. Hill ``enlisted another
NSC official who was present at the July 10 meeting'' to attend
a longer discussion with the NSC Legal Advisor about her
concerns.\565\ Similarly, although the Minority holds up his
reaction as proof that nothing improper happened, Mr. Morrison
immediately reported the July 25 call to the NSC legal advisor
``to make sure that the package was reviewed by the appropriate
senior level attention.''\566\ Further, Mr. Morrison tried to
stay away from President Trump's requests because these
investigations were not related to ``the proper policy process
that I was involved in on Ukraine,'' and ``had nothing to do
with the issues that the interagency was working on.''\567\
---------------------------------------------------------------------------
\564\Ukraine Report at 89.
\565\Id. at 90.
\566\Morrison Dep. Tr. at 61; see Volker-Morrison Hearing Tr. at
38.
\567\Ukraine Report at 106.
---------------------------------------------------------------------------
Ukrainian officials, too, expressed similar reservations.
On July 20, Ambassador Taylor spoke with Oleksandr Danyliuk,
the Ukrainian national security advisor, who conveyed that
President Zelensky ``did not want to be used as a pawn in a
U.S. reelection campaign.''\568\ As Ambassador Taylor
testified, the ``whole thrust'' of the activities undertaken by
Mr. Giuliani and Ambassador Sondland ``was to get these
investigations, which Danyliuk and presumably Zelensky were
resisting because they didn't want to be seen to be interfering
but also to be a pawn.''\569\ Further, as noted above,
Ukrainian Prosecutor General Ruslan Ryaboshapka later stated--
in apparent reference to President Trump's demands--that ``it's
critically important for the west not to pull us into some
conflicts between their ruling elites, but to continue to
support so that we can cross the point of no return.''\570\ In
short, experienced officials on both sides of President Trump's
scheme saw it for what it was: an effort to solicit Ukraine to
assist his reelection campaign.
---------------------------------------------------------------------------
\568\Id. at 20.
\569\Taylor Dep. Tr. at 177.
\570\Ukraine Report at 55.
---------------------------------------------------------------------------
c. Alternative Explanations for President Trump's Course of Conduct Are
Implausible and Inconsistent With the Evidence
Although the President has declined to participate in these
proceedings, the Minority Report offers three alternative
justifications for President Trump's conduct. The
implausibility of these justifications, which are inconsistent
with the evidence, only further proves that President Trump's
motives were constitutionally improper.
i. Anti-Corruption
The Minority's principal contention is that President Trump
denied a White House visit, withheld military and security
assistance, and demanded these two investigations due to his
``deep-seated, genuine, and reasonable skepticism of Ukraine''
for ``pervasive corruption.''\571\ This after-the-fact
contention is not credible.
---------------------------------------------------------------------------
\571\Minority Report at ii.
---------------------------------------------------------------------------
To start, it is inconsistent with President Trump's own
prior conduct respecting Ukraine. Under the previous Ukrainian
administration of President Petro Poroshenko, which suffered
from serious concerns about corruption issues, President Trump
approved $510 million in aid in 2017 and $359 million in 2018;
he also approved the sale of Javelin missiles to Ukraine in
December 2017.\572\ It was not until 2019, after Ukraine
elected President Zelensky, who ran on a strong anti-corruption
platform, that President Trump suddenly punished Ukraine by
refusing a White House meeting and military and security
assistance. If his goal were to fight corruption, President
Trump would have withheld assistance from a corrupt leader and
provided it to a reformer. Instead, he did the opposite, just a
few months after former Vice President Biden announced his
candidacy.
---------------------------------------------------------------------------
\572\USAID, U.S. Foreign Aid by Country (last updated Sept. 23,
2019); Ukraine Report at 100.
---------------------------------------------------------------------------
Nor did President Trump take any other steps one would
expect to see if his concern were corruption. He was given
extensive talking points about corruption for his April 21 and
July 25 calls, yet ignored them both times and did not mention
corruption on either call.\573\ President Trump's staff
uniformly agreed that President Zelensky was a credible anti-
corruption reformer, yet President Trump suspended a White
House meeting that his entire policy team agreed would lend
support and cache to President Zelensky's anti-corruption
agenda in Ukraine.\574\ He withheld military and security
assistance without any stated explanation, yet his own
Department of Defense, in coordination with the Secretary of
State, had certified in May that Ukraine satisfied all anti-
corruption benchmarks necessary for that assistance to be
released.\575\ He continued to withhold the assistance, yet the
White House never requested or independently conducted any
subsequent review of Ukraine's anti-corruption policies--and
the Defense Department adhered to its view that all anti-
corruption benchmarks had already been satisfied.\576\ He
persisted in denying the public and his own staff any
explanation, even though Congress and every agency other than
OMB (headed by the President's Acting Chief of Staff) supported
the provision of military and security assistance to Ukraine
and strongly objected to President Trump's hold.\577\
Tellingly, the President's purported concerns about corruption
in Ukraine as a reason for placing the hold on security
assistance were not conveyed at the time of the hold or any
time prior to lifting the hold.
---------------------------------------------------------------------------
\573\Ukraine Report at 42 (``[C]ontrary to a public readout of the
call originally issued by the White House, President Trump did not
mention corruption in Ukraine, despite the NSC staff preparing talking
points on that topic. Indeed, `corruption' was not mentioned once
during the April 21 conversation, according to the official call
record.''); Vindman-Williams Hearing Tr. at 24-25; see July 25 Call
Record.
\574\Ukraine Report at 38 (``A new president [of Ukraine] had just
been elected on an anti-corruption platform.''); id. at 52 (``Mr.
Zelensky's victory in April 2019 reaffirmed the Ukrainian people's
strong desire to overcome an entrenched system of corruption and pursue
closer partnership with the West.''); id. at 63 (``Ambassador Sondland,
Ambassador Volker, Secretary Perry, and Senator Johnson `took turns'
making their case `that this is a new crowd, it's a new President' in
Ukraine who was `committed to doing the right things,' including
fighting corruption. . . . They recommended that President Trump once
again call President Zelensky and follow through on his April 21
invitation for President Zelensky to meet with him in the Oval
Office.''); id. at 65 (``On June 18, Ambassador Volker, Acting
Assistant Secretary of State Ambassador Philip T. Reeker, Secretary
Perry, Ambassador Sondland, and State Department Counselor T. Ulrich
Brechbuhl participated in a meeting at the Department of Energy to
follow up to the May 23 Oval Office meeting. Ambassador William Taylor
. . . participated by phone from Kyiv. The group agreed that a meeting
between President Trump and President Zelensky would be valuable.'');
Hill-Holmes Hearing Tr. at 23 (``We at the Embassy also believed that a
meeting was critical to the success of President Zelensky's
administration and its reform agenda, and we worked hard to get it
arranged.'').
\575\Kent Dep. Tr. at 304-05 (``There was great confusion among the
rest of us because we didn't understand why that had happened. . . .
Since there was unanimity that this [aid] was in our national interest,
it just surprised all of us.''); Croft Dep. Tr. at 15 (``The only
reason given was that the order came at the direction of the
President.''); Letter from John C. Rood, Under Sec'y of Defense for
Policy, Dep't of Defense, to Eliot L. Engel, Chairman, House Comm. on
Foreign Affairs (May 23, 2019) (``Ukraine has taken substantial actions
to make defense institutional reforms for the purposes of decreasing
corruption. . . . [N]ow that this defense institution reform has
occurred, we will use the authority provided . . . to support programs
in Ukraine further.''); Ukraine Report at 67.
\576\Cooper Dep. Tr. at. 92-93 (``Q: But DOD did not conduct any
sort of review following this statement about whether Ukraine was
making any sort of progress with regard to its anticorruption efforts
in July or August or beginning of September. Is that right? A: That is
correct. Q: Okay. And that's because, as a matter of process and law,
all of those events took place precertification, pre-May? A: That is
correct. And in the interagency discussions, DOD participants affirmed
that we believed sufficient progress has been made. Q: Okay. And it
wasn't just DOD participants who believed that these funds should flow
to Ukraine during these interagency meetings, correct? A: That's
correct. It was unanimous with the exception of the statements by OMB
representatives, and those statements were relaying higher level
guidance.'').
\577\Ukraine Report at 67 (``In a series of interagency meetings,
every represented agency other than OMB (which is headed by Mick
Mulvaney, who is also the President's Acting Chief of Staff) supported
the provision of assistance to Ukraine and objected to President
Trump's hold. Ukraine experts at DOD, the State Department, and the
National Security Council (NSC) argued that it was in the national
security interest of the United States to continue to support
Ukraine.''); -Vindman-Williams Hearing Tr. at 125 (``Q. And from what
you witnessed, did anybody in the National Security community support
withholding the assistance?A. No.''); Taylor-Kent Hearing Tr. at 35
(``I and others sat in astonishment. The Ukrainians were fighting
Russians and counted on not only the training and weapons but also the
assurance of U.S. support.'').
---------------------------------------------------------------------------
Moreover, as numerous United States officials observed, it
would be squarely inconsistent with advancing an anti-
corruption agenda for an American President to avoid official
channels and demand that a foreign leader embroil themselves in
our politics by investigating a candidate for President.\578\
Yet President Trump made that very same demand. He also fired,
without any explanation, an ambassador widely recognized as a
champion in fighting corruption,\579\ praised a corrupt
prosecutor general in Ukraine,\580\ and oversaw efforts to
``cut foreign programs tasked with combating corruption in
Ukraine and elsewhere overseas.''\581\
---------------------------------------------------------------------------
\578\Ukraine Report at 149 (``When it became clear that President
Trump was pressuring Ukraine to investigate his political rival, career
public servants charged with implementing U.S. foreign policy in a non-
partisan manner, such as Lt. Col. Vindman and Ambassador Taylor,
communicated to President Zelensky and his advisors that Ukraine should
avoid getting embroiled in U.S. domestic politics.''); Hill-Holmes
Hearing Tr. at 46 (``[O]ur longstanding policy is to encourage them
[Ukraine] to establish and build rule of law institutions that are
capable and that are independent and that can actually pursue credible
allegations. That's our policy. We've been doing that for quite some
time with some success. So focusing on particular[] cases, including []
cases where there is an interest of the President, it's just not part
of what we've done. It's hard to explain why we would do that.'');
Taylor-Kent Hearing Tr. at 164 (concluding that President Trump's
request ``went against U.S. policy'' and ``would've undermined the rule
of law and our longstanding policy goals in Ukraine, as in other
countries, in the post-Soviet space'').
\579\Ukraine Report at 38-50; see also id. at 49 (``There was a
broad consensus that Ambassador Yovanovitch was successful in helping
Ukraine combat pervasive and endemic corruption.''); Holmes Dep. Tr. at
142; Hill-Holmes Hearing Tr. at 18-19.
\580\July 25 Call Record at 3.
\581\Erica Werner, Trump Administration Sought Billions of Dollars
in Cuts to Programs Aimed at Fighting Corruption in Ukraine and
Elsewhere, Wash. Post, Oct. 23, 2019 (hereinafter ``Werner'').
---------------------------------------------------------------------------
Nothing about President Trump's conduct in the relevant
period supports the theory that he was motivated by a ``deep-
seated, genuine, and reasonable skepticism of Ukraine'' for
``pervasive corruption.'' He gave Ukraine hundreds of millions
of dollars under a regime that ultimately lost power because of
mounting concerns about corruption and then punitively withheld
funds when a reformer came to power. He launched a general
attack on anti-corruption programs while growing closer with
Vladimir Putin and other corrupt despots. His Administration
cut anti-corruption programs in Ukraine during the relevant
period.\582\ And he ignored, defied, and confounded every
office and agency within the Executive Branch seeking to
promote anti-corruption programs, while demanding that Ukraine
investigate his own domestic political rival. Even in the May
23 White House meeting with other U.S. officials, President
Trump equated corruption in Ukraine with the false allegations
that Ukraine tried to ``take [him] down'' in 2016, and directed
his three senior U.S. government officials to assist ``Mr.
Giuliani's efforts, which, it would soon become clear, were
exclusively for the benefit of the President's reelection
campaign.''\583\
---------------------------------------------------------------------------
\582\See Werner.
\583\Ukraine Report at 17.
---------------------------------------------------------------------------
In short, there is overpowering evidence that President
Trump acted with corrupt intent. The after-the-fact claim that
he asked for foreign investigations of his political rivals and
withheld military aid because of a generalized concern about
corruption defies all the evidence before us and common sense.
The President's actions were unexplained and inexplicable,
contradicted legal and factual findings reached by credible
experts, and are indefensible given they involved soliciting a
foreign power to open an investigation into an American citizen
and rival political candidate.
ii. Burden Sharing
We next consider the second justification proposed in the
Minority Report: that President Trump has ``been vocal about
his skepticism of U.S. foreign aid and the need for European
allies to shoulder more of the financial burden for regional
defense.''\584\ This explanation is based largely on the fact
that President Trump told President Zelensky on the July 25
call that European countries should be doing more to help
Ukraine. But there is no evidence that this concern was the
actual reason why he withheld a White House meeting, blocked
the release of Congressionally approved military and security
assistance, and requested the announcement of two
investigations; in fact, the evidence available is inconsistent
with that offered explanation.
---------------------------------------------------------------------------
\584\Minority Report at ii.
---------------------------------------------------------------------------
To this day, President Trump has not explained why he
withheld the valuable White House meeting. And until the
whistleblower complaint was filed, there was no explanation for
why President Trump had blocked release of the military and
security assistance.\585\ This was extremely unusual. OMB
Deputy Associate Director Mark Sandy, the senior budget
official responsible for the Department of Defense portion of
the aid to Ukraine, testified that he could not recall another
instance in which a significant amount of assistance was held
with no rationale provided.\586\ Deputy Assistant George Kent
testified that, upon learning of the hold on July 18, there was
``great confusion'' among representatives from the Department
of Defense, State Department, and National Security Council
because they ``didn't understand why'' the aid had been
frozen.\587\
---------------------------------------------------------------------------
\585\See, e.g., Ukraine Report at 71-74; Vindman Dep. Tr. at 304-
06; Hale Dep. Tr. at 105; Croft Dep. Tr. at 15; Holmes Dep. Tr. at 21;
Kent Dep. Tr. at 304, 310; Sondland Hearing Tr. at 56, 80; Cooper Dep.
Tr. at 44-45; Sandy Dep. Tr. at 91, 97; Morrison Dep. Tr. at 162-63.
Mr. Morrison testified that, during a deputies' meeting on July 26, OMB
stated that the ``President was concerned about corruption in Ukraine,
and he wanted to make sure that Ukraine was doing enough to manage that
corruption.'' Morrison Dep. Tr. at 165. Mr. Morrison did not testify
that concerns about Europe's contributions were raised during this
meeting. In addition, Mr. Sandy testified that, as of July 26, despite
its own statement, OMB did not actually have an understanding of the
reason for the hold. See Sandy Dep. Tr. at 55-56.
\586\Sandy Dep. Tr. at 49.
\587\Kent Dep. Tr. at 304.
---------------------------------------------------------------------------
If the President's reason for ordering a hold was concern
about Europe's contributions, he had no reason to keep that
fact a secret from his own administration. Moreover, if that
was his concern, the normal response would be to undertake a
review process at the time of the hold. Yet, while Deputy
Assistant Secretary of Defense Laura Cooper and other witnesses
testified that they received some inquiries in late June about
Ukraine security assistance, Ms. Cooper testified that there
was no policy or interagency review process that she
``participated in or knew of'' in August 2019.\588\ Ms. Cooper
further testified that she had ``no recollection of the issue
of allied burden sharing coming up'' in the three meetings she
attended about the freeze on security assistance, or hearing
about a lack of funding from Ukraine's allies as a reason for
the freeze.\589\ Under Secretary of State David Hale also
testified that he did not hear about the lack of funding from
Ukraine's allies as a reason for the security assistance
hold.\590\ And Ambassador Sondland, the ambassador to the
European Union, testified that he was never asked to reach out
to European countries to get them to contribute more.\591\
Finally, President Trump ultimately released the military and
security assistance without any further contributions from
Europe. According to Lt. Col. Vindman, none of the ``facts on
the ground'' had changed when this occurred.\592\
---------------------------------------------------------------------------
\588\Cooper Dep. Tr. at 91.
\589\Impeachment Inquiry: Laura Cooper and David Hale: Hearing
Before the H. Perm. Select Comm. on Intelligence, 116th Cong. 75-76
(Nov. 20, 20190.
\590\Id. at 76.
\591\Sondland Dep. Tr. at 338.
\592\Vindman Dep. Tr. at 306.
---------------------------------------------------------------------------
If the President's concern were genuinely about burden-
sharing, it is implausible that he kept his own administration
in the dark about that issue, never made any public statements
about it, never ordered a review process focused on the
question of burden sharing, never ordered his officials to push
Europe to increase their contribution, and then released the
aid without any change in Europe's contributions.
To be sure, after the whistleblower complaint was filed and
the President became aware he had been caught, Mr. Sandy began
receiving questions in September about burden sharing.\593\ But
that sequence only underscores the fact that this explanation
was an after-the-fact justification to cover his tracks, as the
hold had been in place for nearly two months without burden-
sharing provided as a reason. Moreover, after Congress began
investigating President Trump's conduct, the White House
Counsel's Office reportedly conducted an internal review of
``hundreds of documents,'' which ``reveal[ed] extensive efforts
to generate an after-the-fact justification'' for the hold on
assistance for Ukraine ordered by President Trump.\594\ These
documents reportedly included ``early August email exchanges
between acting chief of staff Mick Mulvaney and White House
budget officials seeking to provide an explanation for
withholding the funds after the president had already ordered a
hold in mid-July on the nearly $400 million in security
assistance.''\595\ Given the substantial evidence of irregular
conduct at OMB--including, according to Mr. Sandy, the
resignation of two OMB officials partly based on their
objection to OMB's handling and rationale for the hold on
assistance to Ukraine\596\--this effort to manufacture a
pretext cannot reasonably be credited.
---------------------------------------------------------------------------
\593\Sandy Dep. Tr. at 44-45.
\594\Josh Dawsey et al., White House Review Turns Up Emails Showing
Extensive Effort to Justify Trump's Decision to Block Ukraine Military
Aid, Wash. Post, Nov. 24, 2019.
\595\Id. Because the White House has withheld these documents from
Congress, the Committee is unable to verify the accuracy of the press
reporting.
\596\Sandy Dep. Tr. at 149-56.
---------------------------------------------------------------------------
It also bears mention that European countries do, in fact,
contribute substantial assistance to Ukraine. Since 2014, the
European Union and European financial institutions have
provided more than $16 billion in grants and loans to Ukraine,
making the EU the largest donor to Ukraine.\597\ This far
exceeds the approximately $1.95 billion in assistance that the
United States has provided during the same period, according to
USAID.\598\ Although the United States is the largest donor of
military assistance to Ukraine, European countries also provide
military aid to Ukraine through a NATO assistance package. For
example, the United Kingdom has sent more than 1,300 soldiers
to Ukraine since 2015 and has trained approximately 10,000
Ukrainian troops.\599\
---------------------------------------------------------------------------
\597\European Union, EU-Ukraine Relations--Fact Sheet (Sept. 30,
2019).
\598\USAID, U.S. Foreign Aid by Country (last updated Sept. 23,
2019). According to Mr. Holmes, the United States has provided military
and security assistance of about $3 billion since 2014. Hill-Holmes
Hearing Tr. at 97.
\599\Ctr. for Strategic & Int'l Studies, Not Contributing Enough? A
Summary of European Military and Development Assistance to Ukraine
Since 2014 (Sept. 26, 2019).
---------------------------------------------------------------------------
iii. Legitimate Investigations
The third and final justification that the Minority Report
offers to explain President Trump's conduct is that he had a
legitimate basis to request investigations into his political
rival and the 2016 United States Presidential election.\600\
Like the others conjectured by the Minority, this explanation
is contradicted by the facts, the President's own statements,
and common sense.
---------------------------------------------------------------------------
\600\Minority Report at 78-85.
---------------------------------------------------------------------------
First, this theory presumes that the President was
motivated by an overriding concern about events that occurred
in 2015 and 2016--and that were widely reported at the time.
Yet it was not until 2019 that the President requested these
investigations and placed a hold on assistance to Ukraine. In
other words, President Trump requested the investigations only
after Vice President Biden had entered the 2020 presidential
race and began beating him in the polls--thus giving him a
personal and political motive to harm Vice President Biden
publicly--and only after Special Counsel Robert Mueller's
investigation affirmed the Intelligence Community Assessment's
finding that Russia interfered in our election, and that it did
so in a ``sweeping and systematic'' fashion in order to benefit
President Trump.\601\ The timing of President Trump's
solicitation and pressure campaign, so shortly after Vice
President Biden announced his candidacy and the Special Counsel
Mueller's report was released, is powerful proof of the
President's true motives for seeking the investigations.
---------------------------------------------------------------------------
\601\See Robert S. Mueller, III, Report on the Investigation into
Russian Interference in the 2016 Presidential Election, Vol. I, 1
(March 2019) (hereinafter, ``Mueller Report''); see also Washington
Post-ABC News poll, June 28-July 1, 2019, Wash. Post, July 11, 2019
(poll showing Biden at 55, Trump at 41).
---------------------------------------------------------------------------
Second, as explained above, had President Trump genuinely
believed there was a legitimate basis to request Ukraine's
assistance in law enforcement investigations, there are
specific formal processes that he should have followed.
Specifically, he could have instructed DOJ to make an official
request for assistance through a Mutual Legal Assistance Treaty
(MLAT).\602\ But even though the United States and Ukraine have
entered into an MLAT, multiple witnesses and DOJ itself have
confirmed that there was never an official United States
investigation into the Bidens' conduct in Ukraine, nor was
there an official request to Ukraine for an investigation into
its alleged interference in the 2016 United States Presidential
election.\603\ The President's failure to follow legitimate
procedures is further proof that he was acting improperly.\604\
---------------------------------------------------------------------------
\602\See U.S. Dep't of Just., Criminal Resource Manual
Sec. Sec. 266-277 (describing the formal process for seeking
international assistance in criminal investigations); see also Kent
Dep. Tr. at 110-11, 158, 261; Yovanovitch Dep. Tr. at 192, 212; Holmes
Dep. Tr. at 201-02; Taylor Dep. Tr. at 136.
\603\Kent Dep. Tr. at 111; Yovanovitch Dep. Tr. at 192; see also
Matt Zapotosky et al., Trump Wanted Barr to Hold News Conference Saying
the President Broke No Laws in Call with Ukrainian Leader, Wash. Post,
Nov. 6, 2019.
\604\Although the President's supporters have noted that some
Ukrainian officials made critical statements about President Trump
during his campaign, as witnesses testified, witnesses explained that
mere public comments are dramatically different than an orchestrated
attempt to interfere in the level of election interference by the
Ukrainian government. Moreover, those statements--which the Minority
asserts became public in 2016 and early 2017--were not publicly raised
by President Trump prior to 2019 nor during his call with President
Zelensky, nor is there any evidence that President Trump was concerned
about them. Rather, and quite irresponsibly, they have been raised by
the President's political supporters in what appears to be an after-
the-fact effort to manufacture a pretextual justification for the
President's course of conduct.
---------------------------------------------------------------------------
Third, the role of Mr. Giuliani also belies the suggestion
that this was about legitimate United States investigations.
Mr. Giuliani is not a representative of the United States
government and had no formal role in facilitating Ukraine's
involvement in United States criminal investigations. His
involvement, as well as the lack of formal, official
involvement by DOJ, provide ever more evidence that President
Trump's actions were unrelated to legitimate United States
criminal investigations, but rather about Giuliani's effort to
``meddle in investigations'' on behalf of his client, President
Trump, as Giuliani told the New York Times in May.
Indeed, the record makes clear that President Trump was not
seeking Ukrainian assistance in United States criminal
investigations; rather, he wanted Ukraine to announce its own
investigations of Vice President Biden and the 2016 United
States Presidential election. This is clear from DOJ's non-
involvement, as well as the President's public comments that
Ukraine should ``start a major investigation into the
Bidens.''\605\ Multiple witnesses testified that it is
extremely inappropriate and irregular for the United States to
ask Ukraine to investigate a United States citizen--
particularly when that citizen is a former Vice President and
current political candidate.\606\ For example, Lieutenant
Colonel Vindman testified that he reported President Trump's
July 25 call to legal counsel because he ``did not think it was
proper to demand that a foreign government investigate a U.S.
citizen.''\607\ Ambassador Taylor echoed this concern, stating
that ``[a] formal U.S. request to the Ukrainians to conduct an
investigation based on violations of their own law struck me as
improper, and I recommended to Ambassador Volker that we stay
clear.''\608\ Ambassador Volker, too, testified that ``[t]o
investigate the Vice President of the United States or someone
who is a U.S. official. I don't think we should be asking
foreign governments to do that. I would also say that's true of
a political rival.''\609\ The President's improper request that
Ukraine announce investigations varied from standard rules and
norms; further demonstrating that it marked a dangerous abuse
of power by the President.
---------------------------------------------------------------------------
\605\The White House, Remarks by President Trump Before Marine One
Departure, Oct. 3, 2019.
\606\See, e.g., Taylor-Kent Hearing Tr. at 159 (``it is not role of
politicians to be involved in directing the judicial systems of . . .
other countries''); Taylor Dep. Tr. at 32 (``A formal U.S. request to
the Ukrainians to conduct an investigation based on violations of their
own law struck me as improper, and I recommended to Ambassador Volker
that we stay clear.''); Volker-Morrison Hearing Tr. at 156 (``I don't
believe it is appropriate for the President to [ask a foreign
government to investigate a U.S. citizen]. If we have law enforcement
concerns with a U.S. citizen generally, there are appropriate channels
for that.'').
\607\Vindman Dep. Tr. at 18.
\608\Taylor Dep. at 32.
\609\Volker Hearing Tr. at 103.
---------------------------------------------------------------------------
Finally, both theories asserted by President Trump have
been proven false. None of the 17 witnesses who appeared as
part of this inquiry testified that they were aware of any
factual basis to support the allegation that Ukraine interfered
in the 2016 election; rather, multiple witnesses confirmed that
these were false, debunked conspiracy theories.\610\ As Dr.
Fiona Hill testified, ``[t]his is a fictional narrative that is
being perpetrated and propagated by the Russian security
services themselves.''\611\ Further, on December 9, 2019, FBI
Director Christopher Wray stated, ``We have no information that
indicates that Ukraine interfered with the 2016 presidential
election.''\612\ The Republican-led Senate Select Committee on
Intelligence concluded the same.\613\ It is therefore entirely
not credible to suggest that the President's actions were based
on a sincere belief that Ukraine interfered in the 2016 United
States election or that the so-called ``Crowdstrike theory''
had any validity.\614\
---------------------------------------------------------------------------
\610\Hill Dep. Tr. at 173, 175; Kent Dep. Tr. at 198; Vindman Dep.
Tr. at 330-31; Hale Dep. Tr. at 121; Holmes Dep. Tr. at 128.
\611\Hill-Holmes Hearing Tr. at 40.
\612\Luke Barr & Alexander Mallin, FBI Director Pushes Back on
Debunked Conspiracy Theory About 2016 Election Interference, ABC News,
Dec. 9, 2019.
\613\Natasha Bertrand, Senate Panel Look into Ukraine Interference
Comes Up Short, Politico, Dec. 2, 2019.
\614\In fact, what President Trump raised on his call was a false
conspiracy theory that Russia did not hack the Democratic National
Committee (``DNC'') servers in 2016 and that there is a DNC server
hidden in Ukraine. As President Trump's own former Homeland Security
Advisor Tom Bossert confirmed and previously advised President Trump,
this theory has ``no validity'' and is ``completely debunked.'' See
Sheryl Gay Stolberg et al., Trump Was Repeatedly Warned That Ukraine
Conspiracy Theory Was `Completely Debunked', N.Y. Times, Sept. 29,
2019. The theory appears to stem in part from an inaccurate suggestion
by the President that Crowdstrike, an American cybersecurity firm
retained by the DNC in 2016 to investigate the origins of Russia's hack
on DNC servers, is owned by a Ukrainian. It is not. The intelligence
communities have unanimously concluded that Russia interfered in the
2016 election, and the President has been repeatedly advised that the
Crowdstrike theory is illegitimate. Dr. Hill testified that Mr. Bossert
and National Security Advisor H.R. McMaster ``spent a lot of time'' in
2017 ``trying to refute'' the Crowdstrike theory and advised the
President that the theory of Ukrainian interference was false. Hill
Dep. Tr. at 234
---------------------------------------------------------------------------
Similarly, there is no legitimate basis for President Trump
to claim former Vice President Biden behaved improperly in
calling for the removal of Ukrainian prosecutor general Viktor
Shokin. When he called for Mr. Shokin's removal, then-Vice
President Biden acted in accordance with and in furtherance of
an official United States policy and the broad consensus of
various European countries and the International Monetary
Fund.\615\ Indeed, in late 2015, the International Monetary
Fund threatened Ukraine that it would not receive $40 billion
in international assistance unless Mr. Shokin was removed.\616\
Vice President Biden was subsequently enlisted by the State
Department to call for Mr. Shokin's removal--and in late 2015
and early 2016, he announced that the United States would
withhold $1 billion in loan guarantees unless Mr. Shokin was
dismissed.\617\ Ultimately, in March 2016, Ukraine's parliament
voted to dismiss Mr. Shokin.\618\ Moreover, multiple witnesses
confirmed that the removal of Mr. Shokin would have increased
the likelihood that Burisma would be investigated for
corruption, not the opposite, given that Mr. Shokin was widely
considered to be both ineffective and corrupt.\619\ Any
suggestion that former Vice President Biden called for Mr.
Shokin's removal in order to stop an investigation of Burisma,
the company whose board Hunter Biden sat on, is inconsistent
with these facts.\620\
---------------------------------------------------------------------------
\615\Multiple witnesses thus testified that Mr. Shokin was corrupt
and failing to fulfill his duties as Prosecutor General. Mr. Kent, an
expert on Ukraine and anti-corruption matters, described ``a broad-
based consensus'' among the United States, European allies, and
international financial institutions that Mr. Shokin was ``a typical
Ukraine prosecutor who lived a lifestyle far in excess of his
government salary, who never prosecuted anybody known for having
committed a crime'' and who ``covered up crimes that were known to have
been committed.'' Kent Dep. Tr. at 45. In addition, Ukraine's former
prosecutor general Yuriy Lutsenko who had perpetuated this allegation
of wrongdoing by the Bidens has since recanted and stated that there is
no evidence of wrongdoing by Vice President Biden or his son. See
Ukraine Report at 42.
\616\Courtney Subramanian, Explainer: Biden, Allies Pushed Out
Ukrainian Prosecutor Because He Didn't Pursue Corruption Cases, USA
Today, Oct. 3, 2019; Neil Buckley, Roman Olearchyk, & Shawn Donnan, IMF
Warning Sparks Ukraine Pledge on Corruption and Reform, Fin. Times,
Feb. 10, 2016.
\617\Taylor-Kent Hearing Tr. at 93; Matt Viser & Paul Sonne, Inside
Joe Biden's Brawling Efforts to Reform Ukraine--Which Won Him Successes
and Enemies, Wash. Post, Oct. 19, 2019.
\618\Andrew E, Kramer, Ukraine Ousts Viktor Shokin, Top Prosecutor,
and Political Stability Hangs in the Balance, N.Y. Times, Mar. 29,
2016.
\619\Ukraine Report at 42.
\620\Because Mr. Shokin failed to prosecute corruption in Ukraine,
his removal made it more--not less--likely that Ukrainian authorities
might investigate any allegations of wrongdoing at Burisma. In
addition, Ukraine's former Prosecutor General Yuri Lutsenko who had
perpetuated this allegation of wrongdoing by the Bidens has since
recanted and stated that there is no evidence of wrongdoing by Vice
President Biden or his son. See Tracy Wilkinson & Sergei L. Loiko,
Former Ukraine Prosecutor Says He Saw No Evidence of Wrongdoing by
Biden, L.A. Times, Sept. 29, 2019. For these reasons, the allegations
that Vice President Biden inappropriately pressured Ukraine to remove
Mr. Shokin in order to protect his son are baseless.
---------------------------------------------------------------------------
iv. Conclusion
The Committee does not lightly conclude that President
Trump acted with corrupt motives. But the facts, including the
uncontradicted and corroborated testimony and documents, as
well as common sense once again, all support that inescapable
conclusion. President Trump exercised his official powers to
solicit and pressure Ukraine to launch investigations into
former Vice President Biden and the 2016 election. He did so
not for any legitimate reason, but to obtain an improper
personal political benefit by aiding his reelection, harming
the election prospects of a political opponent, and influencing
the 2020 United States Presidential election to his advantage.
In so doing, President Trump violated his Oath of Office and
abused his public trust. The Framers could not have been
clearer that Presidents who wield power for their own personal
advantage are subject to impeachment, particularly when their
private gain comes at the expense of the national interest.
3. President Trump Ignored and Injured Vital National Interests
President Trump's abuse of power harmed the United States.
It undermined our national security and weakened our democracy.
There is no indication that the President attended to these
concerns in pursuing his own political errand--and there is
every indication that he purposely ignored them. This is
exactly what the Framers feared, and it is why they authorized
Presidential impeachment.
a. National Security
While carrying out his corrupt scheme in Ukraine, President
Trump ignored and injured the national security of the United
States. He did so by threatening our safety and security,
weakening democracy at home and abroad, undermining our efforts
to promote the rule of law on a global stage, and tarnishing
our reputation with allies. This is not a matter of policy
disagreement. It is an objective assessment of the consequences
of President Trump's conduct--an assessment that the House is
entitled and required to make in these circumstances.
First, when he withheld military and security assistance
from Ukraine (and did so for his own personal political
benefit), President Trump threatened the safety and security of
the United States. Ukraine is a ``strategic partner of the
United States.''\621\ By contrast, United States ``national
security policy'' correctly identifies Russia as an
adversary.\622\ As multiple witnesses affirmed, the United
States therefore has an interest in supporting Ukraine, to
ensure it remains an independent and democratic country that
can deter Russian influence, expansion, and military
aggression. For example, Ambassador Yovanovitch explained in
her testimony that ``[s]upporting Ukraine is the right thing to
do. It's also the smart thing to do. If Russia prevails and
Ukraine falls to Russia dominion, we can expect to see other
attempts by Russia to expand its territory and
influence.''\623\ Mr. Morrison elaborated: ``Russia is a
failing power, but it is still a dangerous one. The United
States aids Ukraine and her people so that they can fight
Russia over there, and we don't have to fight Russia
here.''\624\
---------------------------------------------------------------------------
\621\Taylor-Kent Hearing Tr. at 28.
\622\Id. at 53; see also Worldwide Threat Assessment of the U.S.
Intelligence Community Before S. Select Comm. on Intelligence, 116th
Cong. (Jan. 29, 2019) (testimony by Director Daniel R. Coats, Office of
the Director of National Intelligence) (``We assess that Russia poses a
cyber espionage, influence, and attack threat to the United States and
our allies.'').
\623\Impeachment Inquiry: Marie Yovanovitch: Hearing Before the H.
Perm. Select Comm. on Intelligence, 116th Cong. 18 (Nov. 15, 2019). Mr.
Holmes elaborated on the importance of Ukraine to our policy goals:
``It's been said that without Ukraine, Russia is just a country, but
with it, it's an empire.'' Hill-Holmes Hearing Tr. at 162.
\624\Ukraine Report at 69; Morrison-Volker Hearing Tr. at 11.
---------------------------------------------------------------------------
The military and security assistance that the United States
has approved with bipartisan support to Ukraine since 2014 is
critical to preventing Russia's expansion and aggression.
Ukraine is on the front line of conflict with Russia; its
forces defend themselves against Russian aggression every day,
in an ongoing war.\625\ When the United States provides
assistance that allows Ukraine to equip itself with ``radar and
weapons and sniper rifles, that saves lives. It makes the
Ukrainians more effective. It might even shorten the war.
That's what our hope is, to show that the Ukrainians can defend
themselves and the Russians, in the end, will say `Okay, we're
going to stop.'''\626\ In addition, as Ambassador Taylor
explained, the delay occurred ``at a time when hostilities were
still active in the east and when Russia was watching closely
to gauge the level of American support for the Ukrainian
Government.''\627\
---------------------------------------------------------------------------
\625\See, e.g., Ukraine Report at 67-69; Kent. Dep. Tr. at 202,
338-339.
\626\Ukraine Report at 68; Taylor Dep. Tr. at 153.
\627\Ukraine Report at 129; Taylor-Kent Hearing Tr. at 40.
---------------------------------------------------------------------------
Above and beyond the security assistance itself, public
support from the United States demonstrates to Russia that ``we
are Ukraine's reliable strategic partner.''\628\ In withholding
not only assistance, but also a White House meeting, the
President denied Ukraine a show of strength that could deter
further Russian aggression and help Ukraine negotiate an end to
its five-year war with Russia (a war that has already killed
over 13,000 Ukrainians).\629\ Indeed, the very fact of delayed
assistance quite certainly emboldened our enemies and weakened
our partner. President Trump's conduct continues to exacerbate
these dynamics; for example, the day after Presidents Zelensky
and Putin met to negotiate an end to the war in their border
region, on December 10, President Trump met with Russia's top
envoy in the Oval Office, but has yet to schedule a White House
meeting with President Zelensky.\630\
---------------------------------------------------------------------------
\628\See Ukraine Report at 83. Mr. Kent also testified to this
point, explaining that a White House meeting was ``also important for
U.S. national security because it would have served to bolster
Ukraine's negotiating position in peace talks with Russia. It also
would have supported Ukraine as a bulwark against further Russian
advances in Europe.'' Id. at 83-84.
\629\Ukraine Report at 68, 83-84.
\630\John Hudson & Anne Gearan, Trump Meets Russia's Top Diplomat
Amid Scrap Over Election Interference, Wash. Post, Dec. 10, 2019.
---------------------------------------------------------------------------
Second, our national security goals in support of Ukraine
are part of a ``broader strategic approach to Europe,'' whereby
we seek to facilitate negotiation of conflicts in Europe,
maintain peace and order in that region, and prevent further
Russian aggression not just in Ukraine but in Europe and
elsewhere.\631\ Ambassador Taylor explained the importance of
Ukraine to these policy goals in his testimony:
---------------------------------------------------------------------------
\631\Taylor-Kent Hearing Tr. at 169-70.
Russians are violating all of the rules, treaties,
understandings that they committed to that actually kept peace
in Europe for nearly 70 years. Until they invaded Ukraine in
2014, they had abided by sovereignty of nations, of
inviolability of borders. That rule of law, that order that
kept the peace in Europe and allowed for prosperity as well as
peace in Europe was violated by the Russians. And if we don't
push back on that, on those violations, then that will
continue. . . . [This] affects the kind of world that we want
to see abroad. So that affects our national interests very
directly. Ukraine is on the front line of that conflict.\632\
---------------------------------------------------------------------------
\632\Taylor-Kent Hearing Tr. at 52-53.
Third, President Trump's actions diminished President
Zelensky's ability to advance his anti-corruption reforms in
Ukraine--and, in turn, to help the United States promote our
ideals abroad.
President Zelensky, who ran on a strong anti-corruption
platform, was elected by a large majority of Ukrainians;
subsequent to that election, Ukrainians voted to replace 80% of
their Parliament to endorse a ``platform consistent with our
democratic values, our reform priorities, and our strategic
interests.''\633\ Mr. Kent thus emphasized that President
Zelensky's anti-corruption efforts could ensure that ``the
Ukrainian Government has the ability to go after corruption and
effectively investigate, prosecute, and judge alleged criminal
activities using appropriate institutional mechanisms, that is,
to create and follow the rule of law.''\634\ Of course, it is
always in our national security interest to help advance such
democratic and anti-corruption platforms. At a time of shifting
alliances, ``Ukrainians and freedom loving people everywhere
are watching the example we set here of democracy and rule of
law.''\635\ ``If Ukraine is able to enforce that anti-
corruption agenda, it can serve as an example to other post-
Soviet countries and beyond, from Moscow to Hong Kong.''\636\
``A secure, democratic, and free Ukraine [thus] serves not just
the Ukrainian people, but the American people as well. That's
why it was our policy and continues to be our policy to help
the Ukrainians achieve their objectives. They match our
objectives.''\637\
---------------------------------------------------------------------------
\633\Hill-Holmes Hearing Tr. at 35.
\634\Ukraine Report at 149; Taylor-Kent Hearing Tr. at 24.
\635\Hill-Holmes Hearing Tr. at 36.
\636\Id. at 35.
\637\Yovanovitch Hearing Tr. at 17.
---------------------------------------------------------------------------
As Mr. Holmes testified, a White House visit and U.S.
support was ``critical'' to President Zelensky implementing his
platform.\638\ President Zelensky was a new leader, ``looking
to establish his bona fides as a regional and maybe even a
world leader.'' In that context, a meeting with the United
States--the most ``powerful country in the world and Ukraine's
most significant benefactor''--would have gone a long way in
ensuring that President Zelensky had the credibility to
implement his reforms.\639\ Yet, to this day and as a result of
President Trump's desire to obtain a personal political
advantage in the upcoming election, no such meeting has
occurred. This surely has not gone unnoticed by Ukraine, our
democratic allies, or countries struggling to enforce similar
democratic ideals. Indeed, Zelensky administration officials
already are reportedly ``now reconsidering their strategy on
communication with and about the Trump administration.''\640\
---------------------------------------------------------------------------
\638\Hill-Holmes Hearing Tr. at 23.
\639\Id. at 38-39.
\640\Betsy Swan, Ukrainians: Trump Just Sent Us `a Terrible
Signal', Daily Beast, Dec. 11, 2019; see also Michael Birnbaum, Ukraine
Desperately Wants the U.S. on its Side. They Just Don't Know who has
Trump's Ear Anymore, Wash. Post, Nov. 22, 2019 (quoting a Zelensky ally
who noted that the U.S. delay in military aid is ``making us rethink
how U.S. policy is operating'').
---------------------------------------------------------------------------
Fourth, President Trump's brazen use of official acts to
pressure Ukraine to announce a politically motivated
investigation undermined our credibility in promoting
democratic values and the rule of law in Ukraine and elsewhere.
As Ambassador Taylor underscored, ``[o]ur credibility is based
on a respect for the United States,'' and ``if we damage that
respect, then it hurts our credibility and makes it more
difficult for us to do our jobs.''\641\ Mr. Kent, too, agreed
that the President's request for investigations ``went against
U.S. policy'' and ``would've undermined the rule of law and our
longstanding policy goals in Ukraine, as in other countries, in
the post-Soviet space.''\642\
---------------------------------------------------------------------------
\641\Ukraine Report at 150; Taylor-Kent Hearing Tr. at 165.
\642\Ukraine Report at 150; Taylor-Kent Hearing Tr. at 164.
---------------------------------------------------------------------------
Ukrainian officials' reaction to American requests
following President Trump's demand illuminates this concern.
When Ambassador Volker advised Mr. Yermak about ``potential
problems'' with investigations that the Zelensky administration
was contemplating into former Ukrainian President Petro
Poroshenko, Mr. Yermak retorted, ``what, you mean like asking
us to investigate Clinton and Biden?''\643\ Ambassador Volker
did not respond.\644\
---------------------------------------------------------------------------
\643\Ukraine Report at 150; Volker-Morrison Hearing Tr. at 139.
\644\Id., at 139. President Trump's removal of Ambassador
Yovanovitch following a discredited smear campaign on her character,
and subsequent comments attacking her and telling a foreign leader that
she would ``go through some things,'' contributed to this harm, as
well. As she explained, ``[i]f our chief representative is kneecapped
it limits our effectiveness to safeguard the vital national security
interests of the United States.'' Ukraine Report at 49; Yovanovitch
Hearing Tr. at 22.
---------------------------------------------------------------------------
Finally, President Trump's conduct threatened to harm
America's alliances more broadly. ``The U.S. is the most
powerful country in the history of the world in large part
because of our values, and our values have made possible the
network of alliances and partnerships that buttresses our own
strength.''\645\ Yet President Trump's scheme--using Ukraine's
desperation for military assistance and support to pressure our
ally to announce an investigation into his political rival--
shook Ukraine's ``faith in us.''\646\ Even worse, it sent a
message to our allies that the United States may withhold
critical military and security assistance for our President's
personal political benefit; if such conduct is allowed to
stand, our allies will ``constantly question the extent to
which they can count on us.''\647\
---------------------------------------------------------------------------
\645\Yovanovitch Hearing Tr. at 17.
\646\Ukraine Report at 136; Text Message from Ambassador Taylor to
Ambassador Sondland (Sept. 9, 2019, 12:31 AM).
\647\Hill-Holmes Hearing Tr. at 175.
---------------------------------------------------------------------------
President Trump ignored and injured our national security
when he corruptly abused the powers of his office for personal
political gain. As Ambassador Yovanovitch summarized in her
testimony, President Trump's ``conduct undermines the U.S.,
exposes our friends, and widens the playing field for autocrats
like President Putin. Our leadership depends on the power of
our example and the consistency of our purpose. Both have now
been opened to question.''\648\
---------------------------------------------------------------------------
\648\Yovanovitch Hearing Tr. at 19.
---------------------------------------------------------------------------
b. Free and Fair Elections
As explained at the outset, the Framers of our Constitution
were particularly fearful that a President might someday abuse
the powers of his office to undermine free and fair elections.
The heart of the Framers' project was a commitment to popular
sovereignty. In an age when ``democratic self-government
existed almost nowhere on earth,''\649\ the Framers imagined a
society ``where the true principles of representation are
understood and practi[c]ed, and where all authority flows from,
and returns at stated periods to, the people.''\650\ But that
would be possible only if ``those entrusted with [power] should
be kept in dependence on the people.''\651\ This is why the
President, and Members of Congress, must stand before the
public for re-election on fixed terms. Through free and fair
democratic elections the American people protect their system
of political self-government.
---------------------------------------------------------------------------
\649\Akhil Reed Amar, America's Constitution: A Biography 8 (2006).
\650\4 Debates in the Several State Conventions, at 331; see also
James Madison, Federalist No. 14.
\651\James Madison, Federalist No. 37, at 268.
---------------------------------------------------------------------------
President Trump's conduct ignored and injured the Nation's
fundamental interest in self-governance and free and fair
elections. As Professor Pamela S. Karlan of Stanford Law School
explained in her testimony before this Committee, ``[t]he very
idea that a President might seek the aid of a foreign
government in his reelection campaign would have horrified [the
Framers].''\652\ Professor Karlan added:
---------------------------------------------------------------------------
\652\The Impeachment Inquiry into President Donald J. Trump:
Constitutional Grounds for Presidential Impeachment Before the H. Comm.
on the Judiciary, 116th Cong. (Dec. 4, 2019) (written testimony of
Professor Pamela S. Karlan).
[O]ur elections become less free when they are distorted by
foreign interference. What happened in 2016 was bad enough:
there is widespread agreement that Russian operatives
intervened to manipulate our political process. But that
distortion is magnified if a sitting President abuses the
powers of his office actually to invite foreign intervention .
. . That is not politics as usual--at least not in the United
States or any other mature democracy. It is, instead, a
cardinal reason why the Constitution contains an impeachment
power. Put simply, a candidate for president should resist
foreign interference in our elections, not demand it.\653\
---------------------------------------------------------------------------
\653\Id.
When asked to elaborate on her view that President Trump's
conduct endangered the right to vote, which ranks among our
most precious rights, Professor Karlan observed: ``The way that
it does it is exactly what President Washington warned about,
by inviting a foreign government to influence our elections. It
takes the right away from the American people and it turns that
into a right that foreign governments decide to interfere for
their own benefit. Foreign governments don't interfere in our
elections to benefit us; they intervene to benefit
themselves.''\654\
---------------------------------------------------------------------------
\654\Id. (testimony by Professor Pamela S. Karlan in response to
question by Chairman Jerrold Nadler).
---------------------------------------------------------------------------
Ultimately, the Constitution does not care whether
President Trump, former Vice President Biden, or any other
candidate wins the 2020 United States Presidential election. It
is indifferent to political parties and individual
candidates.\655\ But it does care that we have free and fair
elections. That is why foreigners can be excluded from
activities of democratic self-government, including voting and
contributing to political candidates.\656\ And it is why a
President who uses the powers of his office to invite foreign
government interference in an election, all for his own
personal political gain, is a President who has abandoned our
constitutional commitment to democracy.\657\
---------------------------------------------------------------------------
\655\The sole exception is a provision that restricts the
Presidency to natural born citizens. U.S. CONST. art. II, Sec. 1. As
relevant here, this provision is intended to guard against improper
foreign influence in American politics. See 1 James Kent, Commentaries
on American Law 255 (1826).
\656\See Bluman v. Fed. Election Comm'n, 800 F. Supp. 2d 281
(D.D.C. 2011), aff'd, 565 U.S. 1104 (2012).
\657\See Constitutional Grounds for Impeachment (2019) at 24-28.
---------------------------------------------------------------------------
4. President Trump's Abuse of Power Encompassed Impeachable ``Bribery''
and Violations of Federal Criminal Law
The first Article of Impeachment charged President Trump
with an abuse of power as that constitutional offense has long
been understood. While there is no need for a crime to be
proven in order for impeachment to be warranted, here,
President Trump's scheme or course of conduct also encompassed
other offenses, both constitutional and criminal in character,
and it is appropriate for the Committee to recognize such
offenses in assessing the question of impeachment.
a. Constitutional Bribery
``Bribery'' under the Impeachment Clause occurs where a
President corruptly offers, solicits, or accepts something of
personal value to influence his own official actions.\658\ In
that respect, ``Bribery is . . . an especially egregious and
specific example of a President abusing his power for private
gain.''\659\ Based on their lived experience, the Framers had
good cause to view such conduct as grounds for impeachment.
Bribery was considered ``so heinous an Offence, that it was
sometimes punished as High Treason.''\660\ And it was received
wisdom in the late-17th century that nothing can be ``a greater
Temptation to Officers [than] to abuse their Power by Bribery
and Extortion.''\661\
---------------------------------------------------------------------------
\658\Id. at 3.
\659\Id. at 16.
\660\Giles Jacob, A New Law-Dictionary 95 (1729) (hereinafter ``A
New Law-Dictionary''); see also 1 W. Hawkins, A Treatise of Pleas of
the Crown, ch. 67, Sec. 6 (1716) (hereinafter ``Pleas of the Crown'')
(noting that bribery ``was sometimes viewed as High Treason'').
\661\Pleas of the Crown, ch. 67, Sec. 3.
---------------------------------------------------------------------------
Since the Founding, ``[a] number of impeachments in the
United States have charged individuals with misconduct that was
viewed as bribery.''\662\ However, ``the practice of
impeachment in the United States has tended to envelop charges
of bribery within the broader standard of `other high Crimes
and Misdemeanors'''\663\ and, for the most part, ``the specific
articles of impeachment were framed as `high crimes and
misdemeanors'' or an `impeachable offense''' without ever
``explicitly referenc[ing] bribery.''\664\ Here, the First
Article of Impeachment alleges what is, among other things, a
bribery scheme, whereby President Trump corruptly solicited
things of value from a foreign power, Ukraine, to influence his
own official actions--namely, the release of $391 million in
Congressionally-authorized assistance and a head of state
meeting at the White House.
---------------------------------------------------------------------------
\662\Cong. Research Serv., Impeachment and the Constitution 45 & n.
475 (Nov. 20, 2019).
\663\Id. at 46.
\664\Id. at 36 (describing impeachment proceedings against Judge G.
Thomas Porteous Jr. and Judge Alcee L Hastings).
---------------------------------------------------------------------------
The elements of impeachable bribery under the Constitution
are not expressly set forth in our founding document. As
Justice Joseph Story and other authorities have made clear,
however, the Anglo-American common law tradition supplies a
complete and ``proper exposition of the nature and limits of
the offense.''\665\ This Committee has reaffirmed for more than
a century that ``[t]he offense of bribery had a fixed status in
the parliamentary law as well as the criminal law of England
when our Constitution was adopted, and there is little
difficulty in determining its nature and extent in the
application of the law of impeachments in this country.''\666\
Indeed, the four legal experts who testified before this
Committee agreed on the basic definition of common law bribery:
it occurs where a President (1) offers, solicits, or accepts
(2) something of personal value (3) to influence the official
duties he is entrusted with exercising by the American people;
(4) corruptly.\667\ The experts also agreed that an impeachable
offense need not be a crime.\668\
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\665\2 Joseph Story, Commentaries on the Constitution Sec. 794
(1833).
\666\Proceedings of the United States Senate and the House of
Representatives in the Trial of Impeachment of Robert W. Archbald, S.
Doc. No. 1140, 62nd Cong., at 1695 (1913).
\667\See The Impeachment Inquiry into President Donald J. Trump:
Constitutional Grounds for Presidential Impeachment Before H. Comm. on
the Judiciary, 116th Cong. (2019) (hereinafter ``Constitutional Grounds
Hearing (2019)'') (written testimony of Professor Jonathan Turley)
(``Under the common law definition, bribery remains relatively narrow
and consistently defined among the states. `The core concept of a bribe
is an inducement improperly influencing the performance of a public
function meant to be gratuitously exercised.''') (quoting John T.
Noonan, Jr., Bribes: The Intellectual History of a Moral Id. a xi
(1984)); id. (testimony by Professor Noah R. Feldman in response to
question by Representative Jerrold L. Nadler) (``Bribery had a clear
meaning to the Framers, it was--when the President, using the power of
his office, solicits or receives something of personal value from
someone affected by his official powers.''); see also id. (written
testimony of Professor Pamela S. Karlan); id. (written testimony of
Professor Michael J. Gerhardt) (similar).
\668\See Constitutional Grounds Hearing (2019) (written testimony
of Professor Jonathan Turley); id. (written testimony of Professor Noah
R. Feldman); id. (testimony by Professor Michael J. Gerhardt in
response to question by Special Counsel Norman L. Eisen); id.
(testimony by Professor Pamela S. Karlan in response to question by
Special Counsel Norman L. Eisen); see also Constitutional Grounds for
Impeachment (2019), at 31-38.
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Two aspects of this definition merit special note. First,
at the time of the Constitutional Convention, bribery was well
understood in Anglo-American law to encompass soliciting
bribes. As Judge John T. Noonan, Jr. explains, the drafting
history of the Impeachment Clause demonstrates that ```Bribery'
was read both actively and passively, including the chief
magistrate bribing someone and being bribed.''\669\ In a
renowned bribery case involving the alleged solicitation of
bribes, Lord Mansfield explained that ``[w]herever it is a
crime to take, it is a crime to give: they are
reciprocal.''\670\ William Blackstone likewise confirmed that
``taking bribes is punished,'' just as bribery is punishable
for ``those who offer a bribe, though not taken.''\671\ In
addition, at common law, soliciting a bribe--even if it is not
accepted--completes the offense of bribery.\672\ ``[T]he
attempt is a crime; it is complete on his side who offers
it.''\673\
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\669\Noonan, Bribes, at 430; Pleas of the Crown, ch. 67, Sec. 2.
\670\Rex v. Vaughan, 98 Eng. Rep. 308, 311 (K.B. 1769).
\671\William Blackstone, Commentaries on the Laws of England, vol.
2, Book 4, ch. 10, Sec. 17 (1771); A New Law-Dictionary, at 95
(defining ``Bribery'' as ``the Receiving, or Offering, any undue Reward
. . . to act contrary to his Duty.'').
\672\See 4 William Blackstone, Commentaries *139; Rex v. Plympton,
2 Ld. Raym. 1377, 1379 (1724); Rex v. Higgins, 102 Eng. Rep. 269, 276
(1801) (``A solicitation or inciting of another, by whatever means it
is attempted, is an act done''); see also John Marshall Gest, The
Writings of Sir Edward Coke, 18 YALE L.J. 504, 522 (1909) (``Of
bribery: `They that buy will sell.''') (quoting Coke, C.J.) (citing 3
Inst. 148); Francis B. Sayre, Criminal Attempts, 41 HARV. L. REV. 821
(1928) (citing additional cases).
\673\Vaughan, 98 Eng. Rep. at 311. American courts subsequently
repeated this principle; see, e.g., State v. Ellis, 33 N.J.L. 102, 103-
04 (N.J. Sup. Ct. 1868) (importing the common law definition of bribery
to include attempts); see also William O. Russell, A Treatise on Crimes
and Misdemeanors 239-40 (1st U.S. ed. 1824).
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Second, under common law, bribery occurred when the thing
offered or solicited was of personal value to the recipient.
Common law treatises explained that a bribe broadly encompassed
``any undue Reward,'' ``valuable thing,'' or valuable
consideration, even where ``the things were small.''\674\ The
value of the thing was measured by its value to the public
official who was offering, soliciting or receiving it.\675\
Accordingly, as Professor Turley recognized in his testimony,
the common law encompassed non-pecuniary things of value--even
including, in the case of King Charles II (as would have been
well known to the Framers), ``a young French mistress.''\676\
Consistent with this broad understanding, in guarding against
foreign efforts to corrupt American officials, the Constitution
forbids any ``Person holding any Office of Profit or Trust,''
from accepting ``any present, Office or Title, of any kind
whatever, from . . . a foreign State,'' unless Congress
consents.\677\ An equally capacious view applies to the
impeachable offense of ``Bribery.''
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\674\Pleas of the Crown, ch. 67, Sec. 2; Edward Coke, The Third
Part of the Institutes of the Laws of England: Concerning High Treason,
and Other Pleas of the Crown, and Criminal Causes 147 (1644).
\675\A New Law-Dictionary, at 734 (defining the ``Value'' of a
thing to turn on ``the valuation of the owner on it.''); see also Com.
v. Callaghan, 2 Va. Cas. 460 (1825) (holding that the ``corrupt
agreement'' between two Justices of the Peace to trade votes qualified
as a misdemeanor at Common Law).
\676\Constitutional Grounds for Impeachment (2019) (written
testimony of Professor Jonathan Turley). This case was discussed on
multiple occasions at the Constitutional Convention. See, e.g., id.
(``Louis XIV bribed Charles II to sign the secret Treaty of Dover of
1670 with the payment of a massive pension and other benefits. . . . In
return, Charles II not only agreed to convert to Catholicism, but to
join France in a wartime alliance against the Dutch.'') (citing George
Clark, The Later Stuarts (1660-1714) 86-87, 130 (2d ed. 1956)); 5
Debates in the Several State Conventions, at 343 (recounting Morris's
argument that the President should be removable through the impeachment
process, noting concern that the President might ``be bribed by a
greater interest to betray his trust,'' and pointed to the example of
Charles II receiving a bribe from Louis XIV).
\677\U.S. Const., art. I, Sec. 9, cl. 8 (emphasis added).
---------------------------------------------------------------------------
Applying the constitutional definition of ``Bribery'' here,
there can be little doubt that it is satisfied. President Trump
solicited President Zelensky for a ``favor'' of great personal
value to him\678\; he did so corruptly\679\; and he did so in a
scheme to influence his own official actions respecting the
release of military and security assistance and the offer of a
White House meeting.\680\
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\678\July 25 Call Record at 3.
\679\Ukraine Report at 140 (referring to President Trump's
``scheme'' to condition release of military aid and White House meeting
on favors to benefit his reelection campaign); see supra at Section
III.D.2.
\680\Id.; see supra at Section III.D.1.c.
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b. Criminal Bribery, 18 U.S.C. Sec. 201
Although President Trump's actions need not rise to the
level of a criminal violation to justify impeachment, his
conduct here was criminal. In this section we address the
federal statute banning bribery; in the next section we address
the wire fraud statute. Both of these laws underscore the
extent to which Congress and the American people have broadly
condemned the use of a public position of trust for personal
gain. As this Committee observed decades ago, ``[n]othing is
more corrosive to the fabric of good government than
bribery.''\681\ The federal anti-bribery statute imposes up to
fifteen years' imprisonment for public officials who solicit or
obtain bribes.\682\ The wire fraud statute, in turn, imposes up
to twenty years imprisonment for public officials who breach
the public trust by depriving them of their honest
services.\683\ President Trump's violation of both statutes is
further evidence of the egregious nature of his abuse of power.
---------------------------------------------------------------------------
\681\Bribery, Graft, and Conflicts of Interest, H. Rep. No. 87-748,
at 6 (1961).
\682\18 U.S.C. Sec. 201(b)(2).
\683\18 U.S.C. Sec. Sec. 1343, 1346.
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Starting with the federal anti-bribery statute, criminal
bribery occurs when a public official (1) ``demands [or]
seeks''' (2) ``anything of value personally,'' (3) ``in return
for being influenced in the performance of any official
act.''\684\ Additionally, the public official must carry out
these actions (4) ``corruptly.''\685\ We address the four
statutory elements in turn.
---------------------------------------------------------------------------
\684\18 U.S.C. Sec. 201(b)(2).
\685\18 U.S.C. Sec. 201(b)(2)(A).
---------------------------------------------------------------------------
i. ``Demands'' or ``Seeks''
The evidence before the Committee makes clear that the
President solicited from the President of Ukraine a public
announcement that he would undertake two politically motivated
investigations. That conduct satisfies the actus reus element
of bribery under the federal criminal code.\686\ Section 201
prohibits a wide variety of solicitations, including
solicitations that are ``indirect[ ].''\687\ Courts have
concluded that a bribe was solicited, for example, where a
public official with authority to award construction contracts
requested that a contractor ``take a look at the roof'' of the
official's home.\688\ Notably, where the other elements are
met, the statutory offense of bribery is complete upon the
demand--even if the thing of value is not provided.\689\ That
is because ``the purpose of the statute is to discourage one
from seeking an advantage by attempting to influence a public
official to depart from conduct deemed essential to the public
interest.''\690\
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\686\As a threshold matter, the President is plainly a ``public
official'' within the meaning of the criminal anti-bribery statute. See
18 U.S.C. Sec. 201(a)(1) (``public official'' includes ``an officer . .
. acting for or on behalf of the United States'').
\687\18 U.S.C. Sec. 201(b)(2).
\688\United States v. Repak, 852 F.3d 230, 238 (3d Cir. 2017); see
also id. at 251-52, 254.
\689\United States v. Jacobs, 431 F.2d 754, 759-60 (2d Cir. 1970)
(reaffirming that statute ``is violated even though the official
offered a bribe is not corrupted, or the object of the bribe could not
be attained, or it could make no difference if after the act were done
it turned out that there had been actually no occasion to seek to
influence any official conduct'').
\690\Id. at 759.
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President Trump solicited from President Zelensky a public
announcement that he would conduct two politically motivated
investigations into President Trump's political rival and into
discredited claims about election interference in 2016. These
demands easily constitute solicitation under federal law. To
begin with, the President's improper solicitation is apparent
in the record of his July 25 phone call with President
Zelensky. As the record makes clear, after President Zelensky
raised the issue of United States military assistance to
Ukraine, President Trump immediately responded: ``I would like
you to do us a favor though[.]''\691\ President Trump then
explained the ``favor,'' which involved the two demands for
baseless investigations. In addition, the July 25 call ``was
neither the start nor the end'' of these demands.\692\ In the
weeks leading up to it, for example, Ambassadors Volker and
Sondland had both personally informed President Zelensky and
his staff of the President's demands and advised the Ukrainian
leader to agree to them.\693\ These and other related actions
by the President's subordinates were taken in coordination with
Rudolph Giuliani, who was understood to be ``expressing the
desires of the President of the United States.''\694\ There can
thus be no doubt that President Trump's conduct constituted a
solicitation.
---------------------------------------------------------------------------
\691\July 25 Call Record at 3.
\692\Ukraine Report at 9.
\693\Id. at 85-86.
\694\Id. at 19 (quoting Ambassador Sondland).
---------------------------------------------------------------------------
ii. ``Anything of Value Personally''
The next question is whether any of the ``things'' that
President Trump solicited from President Zelensky count as a
``things of value.'' Section 201 makes clear that bribery
occurs when the thing offered or solicited is ``anything of
value personally'' to the recipient\695\--and in this instance,
President Trump placed significant personal value on the
``favor[s]'' demanded.
---------------------------------------------------------------------------
\695\18 U.S.C. Sec. 201(b)(2) (emphasis added).
---------------------------------------------------------------------------
``The phrase `anything of value' has been interpreted
broadly to carry out the congressional purpose of punishing the
abuse of public office.''\696\ It ``is defined broadly to
include `the value which the defendant subjectively attaches to
the items received.'''\697\ For example, it has been held to
include shares of stock that had ``no commercial value'' where
the official receiving the bribe expected otherwise.\698\ As
the court in that case explained, ``[c]orruption of office
occurs when the officeholder agrees to misuse his office in the
expectation of gain, whether or not he has correctly assessed
the worth of the bribe.''\699\ The term ``thing of value''
encompasses intangible things of value as well. As used
throughout the criminal code, it has been held to include
(among other things): research work product,\700\ conjugal
visits for a prison inmate,\701\ confidential government files
about informants,\702\ information about the location of a
witness,\703\ a promise of future employment,\704\ a promise to
contact a public official,\705\ ``the amount of a confidential,
competitive bid'' for a government contract,\706\ copies of
grand jury transcripts provided to the target of an
investigation,\707\ and the testimony of a witness at a
criminal trial.\708\
---------------------------------------------------------------------------
\696\United States v. Renzi, 769 F.3d 731, 744 (9th Cir. 2014)
(emphasis added) (quoting United States v. Williams, 705 F.2d 603, 623
(2d Cir. 1983)).
\697\Id. (quoting United States v. Gorman, 807 F.2d 1299, 1305 (6th
Cir. 1986)).
\698\Williams, 705 F.2d at 622-23.
\699\Id. at 623.
\700\United States v. Croft, 750 F.2d 1354, 1361-62 (7th Cir. 1984)
(holding labor of government employee, whose research work product was
appropriated by defendant for private gain, was ``thing of value''
under theft statute, 18 U.S.C. Sec. 641). Courts have also explained
that ```Congress's frequent use of the term `thing of value' in various
criminal statutes has evolved the phrase into a term of art''' and have
therefore applied it broadly and consistently across various federal
statutes. United States v. Petrovic, 701 F.3d 849, 858 (8th Cir. 2012)
(quoting United States v. Nilsen, 967 F.2d 539, 542 (11th Cir. 1992)
(per curiam)).
\701\United States v. Marmolejo, 89 F.3d 1185, 1191-93 (5th Cir.
1996).
\702\United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979)
(holding that information was ``thing of value'' under federal theft
statute, and listing cases in which the term was held to encompass
``amusement,'' ``the testimony of a witness,'' ``the promise of sexual
intercourse,'' ``an agreement not to run in a primary election,'' and
``a promise to reinstate an employee'').
\703\United States v. Sheker, 618 F.2d 607, 608-09 (9th Cir. 1980)
(per curiam).
\704\Gorman, 807 F.2d at 1305.
\705\United States v. Scruggs, 916 F. Supp. 2d 670 (N.D. Miss.
2012) (holding promise to contact public official constituted
``anything of value'' under bribery theory of honest services fraud, 18
U.S.C. Sec. Sec. 1341, 1343, 1346).
\706\United States v. Matzkin, 14 F.3d 1014, 1020 (4th Cir. 1994).
\707\United States v. Jeter, 775 F.2d 670, 680 (6th Cir. 1985).
\708\Nilsen, 967 F.2d at 543; see also Off. of the Chair of the
Fed. Election Comm'n, The Law of a `Thing of Value: Summary of the
Sorts of Tangible and Intangible Goods and Services that Have Been
Found to Have `Value' by the Commission and Other U.S. Government
Entities 1 (2019) (``Federal courts have consistently applied an
expansive reading to the term `thing of value' in a variety of
statutory contexts to include goods and services that have tangible,
intangible, or even merely perceived benefits, for example: promises,
information, testimony, conjugal visits, and commercially worthless
stock.'').
---------------------------------------------------------------------------
In this case, President Trump indisputably placed a
subjective personal value on the announcement of investigations
that he solicited from President Zelensky. The announcement of
an investigation into President Trump's political rival would
redound to President Trump's personal benefit; and the
announcement of an investigation into purported Ukrainian
interference in the 2016 election would vindicate the
President's frequent denials that he benefitted from Russia's
assistance. Mr. Giuliani recognized as much many times as he
pursued his client's own interests in Ukraine.\709\
Furthermore, Ambassador Sondland and others testified that
President Trump's true priority was the public announcement of
these investigations more than the investigations
themselves.\710\ This fact makes clear that ``the goal was not
the investigations, but the political benefit [President] Trump
would derive from their announcement and the cloud they might
put over a political opponent.''\711\ The promotion of these
investigations and the political narratives behind them thus
``served the [President's] personal political interests . . .
because they would help him in his campaign for reelection in
2020.''\712\
---------------------------------------------------------------------------
\709\See Vogel Giuliani (Giuliani acknowledging that investigations
would produce ``information [that] will be very, very helpful to my
client'').
\710\See Ukraine Report at 21.
\711\Id.; see also id. at 134 (Ambassador Taylor testified that
according to information he had received, President Trump ``insist[ed]
that President Zelensky go to a microphone and say he is opening
investigations of Biden and 2016 election interference'').
\712\Id. at 42.
---------------------------------------------------------------------------
iii. ``In Return for Being Influenced in the Performance of
any Official Act''
In Return for Being Influenced: This element of the
criminal anti-bribery statute requires showing ``a specific
intent to give or receive something of value in exchange for an
official act.''--i.e., a quid pro quo.\713\ As detailed above,
the evidence satisfies this standard. President Trump sought an
announcement of these investigations in return for performing
two official acts. First, the President ``conditioned release
of [ ] vital military assistance . . . on [President
Zelensky's] public announcement of the investigations.''\714\
Second, he ``conditioned a head of state meeting at the White
House . . . on Ukraine publicly announcing the
investigations.''\715\
---------------------------------------------------------------------------
\713\United States v. Sun-Diamond Growers of Cal., 526 U.S. 398,
404-05 (1999) (emphasis in original).
\714\Ukraine Report at 35.
\715\Id.
---------------------------------------------------------------------------
Official Act: Federal anti-bribery law defines an
``official act'' as ``any decision or action on any question,
matter, cause, suit, proceeding or controversy'' that may be
pending or brought before a public official in that person's
official capacity.\716\ Both of the acts in question--releasing
$391 million in approved military and security assistance, and
hosting an official head-of-state diplomatic visit at the White
House--plainly qualify as ``official act[s]'' within the
meaning of the statute.
---------------------------------------------------------------------------
\716\18 U.S.C. Sec. 201(a)(3).
---------------------------------------------------------------------------
First, the release of much-needed assistance to Ukraine was
unquestionably an official act. Release of these funds,
totaling $391 million, involved a formal certification process
by the Department of Defense regarding certain preconditions
and an official notification to Congress, among other
things.\717\ In addition, President Trump's placement of a hold
on the funds precipitated ``a series of policy meetings
involving increasingly senior officials'' across numerous
federal agencies.\718\ These processes unmistakably involved
``formal exercise[s] of government power'' as defined by the
Supreme Court in McDonnell v. United States.\719\ Indeed,
McDonnell confirmed that a decision to allocate funds obviously
qualifies as an ``official act.''\720\
---------------------------------------------------------------------------
\717\Ukraine Report at 17-18.
\718\Id. at 18.
\719\136 S. Ct. 2355, 2368-70, 2372 (2016).
\720\Id. at 2370.
---------------------------------------------------------------------------
Second, when the President hosts a foreign head of state
for an official diplomatic visit, he performs an official act
specifically assigned to him by Article II of the Constitution.
The President's official functions include the duty to
``receive Ambassadors and other public Ministers.''\721\ By
receiving ambassadors and foreign heads of state under that
authority, the President recognizes the legitimacy of their
governments.\722\ Furthermore, an official diplomatic visit by
a head of state is an extensive governmental undertaking.
During the type of visit sought here (an official ``working''
visit\723\), the visiting official is typically hosted at Blair
House for several days, during which time the official meets
with the President and attends a working luncheon at the White
House, along with the Secretary of State.\724\ Such engagements
usually involve weeks of preparation and agenda-setting, at the
end of which significant new policy initiatives may be
announced.
---------------------------------------------------------------------------
\721\U.S. Const., art. II, Sec. 3.
\722\See Zivotofsky, 135 S. Ct. at 2086.
\723\See Sondland Deposition Tr. at 25; Sondland Hearing Tr. at 42.
\724\Julie Moffett, World: How the U.S. Ranks the Visits of Foreign
Heads of State, Radio Free Europe, Aug. 6, 1997.
---------------------------------------------------------------------------
For these reasons, it is beyond question that official
White House visits constitute a ``formal exercise of
governmental power'' within the meaning of McDonnell. In that
case, the Supreme Court held that the former governor of
Virginia did not perform ``official acts'' when he arranged
meetings and hosted events for a benefactor. There, however,
the actions in question were frequent and informal in nature.
Official diplomatic visits to the White House, by contrast, are
conducted pursuant to the President's express Article II
authority, involve significant use of government resources, and
entail extensive preparation. Indeed, the visiting official
must even obtain a special kind of visa--a process that itself
involves the performance of an official act.\725\
---------------------------------------------------------------------------
\725\United States v. Jefferson, 289 F. Supp. 3d 717, 738 (E.D. Va.
2017); see 9 Foreign Affairs Manual Sec. 402.3-5 (2019) (explaining
that diplomats and other foreign government officials traveling to the
United States to engage solely in official duties or activities on
behalf of their national government must obtain A-1 or A-2 visas prior
to entering the United States).
---------------------------------------------------------------------------
The context addressed by the Supreme Court in McDonnell
also bears emphasis. The governor in that case ``referred
thousands of constituents to meetings with members of his staff
and other government officials'' and routinely hosted events
for state businesses.\726\ His arrangement of meetings was
commonplace and casual, and the Court expressed deep concern
about ``chill[ing] federal officials'' interactions with the
people they serve'' by bringing those interactions within the
scope of anti-bribery laws.\727\ The context here could not be
more different, and there is no risk that applying anti-bribery
laws to this context would chill diplomatic relations. Foreign
nationals are already prohibited from donating to United States
political campaigns\728\--or, for that matter, from giving any
sorts of ``presents'' or ``emoluments'' to the President or
other officials without Congress's express consent.\729\
Application of anti-bribery laws in this context--i.e., making
it unlawful for the President to exchange official diplomatic
visits for personal benefits--is therefore consistent with and
compelled by the plain text of federal law.
---------------------------------------------------------------------------
\726\McDonnell, 136 S. Ct. at 2361-62.
\727\Id. at 2372 (internal quotation marks omitted).
\728\See 52 U.S.C. Sec. 30121.
\729\U.S. Const., art. I, Sec. 9, cl. 8.
---------------------------------------------------------------------------
iv. ``Corruptly''
President Trump behaved corruptly throughout this course of
conduct because he offered to perform official acts ``in
exchange for a private benefit,'' rather than for any public
policy purpose.\730\ Policymakers may of course trade support
or assistance, and that type of ``logrolling'' does not
constitute an exchange of bribes.\731\ But that is entirely
different from the President seeking an announcement of
investigations to serve his personal and political interests,
as he did here.\732\ Indeed, and as detailed above, the record
is clear that President Trump acted with corrupt motives,
including that:
---------------------------------------------------------------------------
\730\United States v. Blagojevich, 794 F.3d 729, 735 (7th Cir.
2015) (emphasis added).
\731\Id.
---------------------------------------------------------------------------
President Trump's request for investigations on
the July 25 call was not part of any official briefing
materials or talking points he received in preparation for the
call; nor were the investigations part of any U.S. official
policy objective.
President Trump's primary focus relating to
Ukraine during the relevant period was the announcement of
these two investigations that were not part of official U.S.
policy objectives.
There is no evidence that the President's request
for the investigations was part of a change in official U.S.
policy; that fact further supports the alternative and only
plausible explanation that President Trump pressed the public
announcements because there were of great personal, political
value to him.
President Trump's requests departed from
established channels, including because he used his personal
attorney, Mr. Giuliani, to press the investigations and never
contacted the Department of Justice or made a formal request.
President Trump's request was viewed by key United
States and Ukrainian officials as improper, unusual,
problematic, and, most importantly, purely political.
For all these reasons, President Trump's conduct satisfies
the fourth and final element of the federal anti-bribery
statute.
c. Honest Services Fraud, 18 U.S.C Sec. 1346
In addition to committing the crime of bribery, President
Trump knowingly and willfully orchestrated a scheme to defraud
the American people of his honest services as President of the
United States. In doing so, he betrayed his position of trust
and the duty he owed the citizenry to be an honest fiduciary of
their trust. That offense is codified in the federal criminal
code, which imposes up to twenty years' imprisonment for public
officials who (by mail or wire fraud) breach the public trust
by participating in a bribery scheme.\733\ In Skilling v.
United States, the Supreme Court confirmed that the statute
governing ``honest services fraud'' applies to ``bribes and
kickbacks,'' and noted that this concept ``draws content from''
the federal anti-bribery statute.\734\ As such, public
officials who engage in bribery may also be charged with honest
services fraud.\735\
---------------------------------------------------------------------------
\733\See 18 U.S.C. Sec. Sec. 1341, 1343, 1346.
\734\561 U.S. 358, 412 (2010); see also id. at 404.
\735\Governor McDonnell, for example, was also charged for honest
services fraud. See McDonnell, 136 S. Ct. at 2365. See also, e.g.,
United States v. Nagin, 810 F.3d 348, 351 (5th Cir. 2016).
---------------------------------------------------------------------------
Fundamentally, the President has deprived the American
people of the honorable stewardship that the Nation expects and
demands of its chief executive. Since Skilling, federal courts
have looked to federal bribery statutes, paying particular
attention to Section 201, to assess what constitutes willful
participation in a scheme to defraud in the provision of
``honest services.''\736\ As described above, President Trump
engaged in conduct that constitutes a violation of Section 201.
President Trump conditioned specific ``official acts''--the
provision of military and security assistance and a White House
meeting--on President Zelensky announcing investigations that
benefitted him personally, while harming national interests. In
doing so, President Trump willfully set out to defraud the
American people, through bribery, of his ``honest services.''
---------------------------------------------------------------------------
\736\See, e.g., United States v. Suhl, 885 F.3d 1106, 1111 (8th
Cir. 2018), cert. denied, 139 S. Ct. 172 (2018); Woodward v. United
States, 905 F.3d 40, 44 (1st Cir. 2018).
---------------------------------------------------------------------------
The underlying wire fraud statute, upon which the ``honest
services'' crime is based, requires a transmission by ``wire,
radio, or television communication in interstate or foreign
commerce any writings . . . for the purpose of executing [a] .
. . scheme or artifice.''\737\ President Trump's July 25 call
to President Zelensky, as well as his July 26 call to
Ambassador Gordon Sondland both were foreign wire
communications made in furtherance of an ongoing bribery
scheme. Thus, the President's telephone calls on July 25th and
July 26th lay bare the final element to find him criminally
liable for his failure to provide ``honest services'' to the
American people.
---------------------------------------------------------------------------
\737\18 U.S.C. Sec. 1343.
---------------------------------------------------------------------------
d. Conclusion
For the reasons given above, President Trump's abuse of
power encompassed both the constitutional offense of
``Bribery'' and multiple federal crimes. He has betrayed the
national interest, the people of this Nation, and should not be
permitted to be above the law. It is therefore all the more
vital that he be removed from office.
5. President Trump Poses a Continuing Threat if Left in Office
Impeachment exists ``not to inflict personal punishment for
past wrongdoing, but rather to protect against future
Presidential misconduct that would endanger democracy and the
rule of law.''\738\ By virtue of the conduct encompassed by the
First Article of Impeachment, President Trump ``has
demonstrated that he will remain a threat to national security
and the Constitution if allowed to remain in office, and has
acted in a manner grossly incompatible with self-governance and
the rule of law.'' That is true in at least two respects:
first, he has shown no remorse or regret, but rather insists
that his conduct was ``perfect'' and continues to engage in
misconduct; and second, the egregiousness and complexity of his
scheme confirm his willingness to abuse the powers of his
office for private gain.
---------------------------------------------------------------------------
\738\Constitutional Grounds for Impeachment (2019) at 10.
---------------------------------------------------------------------------
a. Lack of Remorse and Continued Misconduct
``It is true that the President has expressed regret for
his personal misconduct. But he has never--he has never--
accepted responsibility for breaking the law. He has never
taken that essential step . . . He has stubbornly resisted any
effort to be held accountable for his violations of the law,
for his violations of his constitutional oath, and his
violation of his duty as President. To this day, he remains
adamantly unrepentant.''\739\
---------------------------------------------------------------------------
\739\Proceedings of the U.S. Senate in the Impeachment Trial of
President William Jefferson Clinton Vol. II: Floor Trial Proceedings,
106th Cong. 1471 (1999) (statement of Rep. Charles Canady).
---------------------------------------------------------------------------
Representative Charles Canady, serving as a House Manager,
spoke those words while urging the Senate to uphold articles of
impeachment against President Clinton. They apply here with
full force and only one modification: it is not true ``that the
President has expressed regret for his personal misconduct.''
When President Trump, for his own personal political gain,
asked for a favor from President Zelensky, he did exactly what
our Framers feared most. He invited the influence of a foreign
power into our elections--and used the powers of his office to
secure that advantage at the direct expense of our national
security. Yet President Trump has admitted to no wrongdoing. He
maintains that he was always in the right and that his July 25
call with President Zelensky was ``perfect.''\740\ President
Trump has made it clear that he believes he is free to use his
Presidential powers the same way, to the same ends, whenever
and wherever he pleases.
---------------------------------------------------------------------------
\740\Ukraine Report at 10.
---------------------------------------------------------------------------
Any doubt on that score is resolved by his conduct since
the scheme came to light. He has made repeated false
statements. He has stonewalled Congressional investigators and
ordered others to do the same. He has argued that it is
illegitimate for the House to investigate him. He has stayed in
contact with Mr. Giuliani, his private lawyer, who remains hard
at work advancing his client's personal interests in Ukraine.
He has attacked Members of the House, as well as witnesses in
House proceedings, who questioned his conduct. He has asserted
and exercised the prerogative to urge foreign nations to
investigate citizens who dare to challenge him
politically.\741\
---------------------------------------------------------------------------
\741\See Ukraine Report at 140-50; 207-60.
---------------------------------------------------------------------------
Indeed, even after the Speaker announced the impeachment
inquiry, President Trump stated on October 2, ``And just so you
know, we've been investigating, on a personal basis--through
Rudy and others, lawyers--corruption in the 2016
election.''\742\ The next day, President Trump went further: he
not only acknowledged that he wanted Ukraine to investigate
former Vice President Biden, but also publicly suggested that
China should do the same. When asked what he hoped President
Zelensky would do about the Bidens, he stated as follows:
---------------------------------------------------------------------------
\742\The White House, Remarks by President Trump and President
Niinisto of the Republic of Finland in Joint Press Conference (Oct. 2,
2019).
Well, I would think that, if they were honest about
it, they'd start a major investigation into the Bidens.
It's a very simple answer. They should investigate the
Bidens, because how does a company that's newly
formed--and all these companies, if you look at--And,
by the way, likewise, China should start an
investigation into the Bidens, because what happened in
China is just about as bad as what happened with--with
Ukraine. So, I would say that President Zelensky--if it
were me, I would recommend that they start an
investigation into the Bidens. Because nobody has any
doubt that they weren't crooked. That was a crooked
deal--100 percent. He had no knowledge of energy;
didn't know the first thing about it. All of a sudden,
he is getting $50,000 a month, plus a lot of other
things. Nobody has any doubt. And they got rid of a
prosecutor who was a very tough prosecutor. They got
rid of him. Now they're trying to make it the opposite
way. But they got rid--So, if I were the President, I
would certainly recommend that of Ukraine.\743\
---------------------------------------------------------------------------
\743\The White House, Remarks by President Trump Before Marine One
Departure (Oct. 3, 2019).
President Trump added that asking President Xi of China to
investigate the Bidens ``is certainly something we can start
thinking about.''\744\ And the day after that, on October 4, in
remarks before he departed on Marine One, the President stated:
---------------------------------------------------------------------------
\744\Id.
When you look at what Biden and his son did, and when
you look at other people--what they've done. And I
believe there was tremendous corruption with Biden, but
I think there was beyond--I mean, beyond corruption--
having to do with the 2016 campaign, and what these
lowlifes did to so many people, to hurt so many people
in the Trump campaign--which was successful, despite
all of the fighting us. I mean, despite all of the
unfairness.\745\
---------------------------------------------------------------------------
\745\The White House, Remarks by President Trump Before Marine One
Departure (Oct. 4, 2019).
President Trump then once again reiterated his willingness
to solicit foreign assistance related to his personal
interests: ``Here's what's okay: If we feel there's corruption,
like I feel there was in the 2016 campaign--there was
tremendous corruption against me--if we feel there's
corruption, we have a right to go to a foreign country.''
b. The Egregiousness of the President's Conduct Confirms His
Willingness to Abuse His Power for Personal Political Gain
The first Article of Impeachment does not seek President
Trump's removal for an isolated error of judgment on the July
25 phone call, or for a mere series of related misjudgments in
his public statements since then. The President's abuse of
power involved a course of conduct in which he willfully chose,
time and again, to place his own personal political gain above
our national security and commitment to free and fair
elections. He did so in ways large and small, using many
Executive Branch agencies, offices, and officers to advance his
corrupt agenda throughout 2019. Some may have joined knowingly;
others, including several witnesses who testified before the
Investigating Committees, only recognized the impropriety of
the activity once the White House released the record of the
President's July 25 call with President Zelensky or were
dragooned against their will and resisted within the bounds of
professional propriety. In the end, President Trump relied on a
network of agents within and beyond the United States
government to bend our Ukraine policy to use the powers of the
presidency to harm a prominent political opponent, all at the
expense of our security and democracy.
No private citizen could do this. Ordinary citizens cannot
deny White House meetings, block Congressionally-appropriated
military and security assistance, or condition such official
acts on an agreement to sabotage their political opponents.
These powers reside in the Office of the President. It was thus
solely by virtue of powers entrusted to his office that
President Trump could distort our foreign policy, and weaken
our national security, to his own personal political gain. His
conduct is thus an ``abuse or violation of . . . public trust''
and evokes the Framers' fear that ``the Executive will have
great opportunitys [sic] of abusing his power.''\746\ It also
demonstrates that he will continue to engage in such abuses
unless he is removed from office.
---------------------------------------------------------------------------
\746\2 Farrand, Records of the Federal Convention, at 67 (statement
of Edmund Randolph).
---------------------------------------------------------------------------
The Minority has objected that there is no such risk
because the assistance to Ukraine was eventually released. But
that is irrelevant. The fact that the President's scheme was
discovered and disrupted does not cure his abuse of power or
suggest that he will honor his Oath of Office in the future.
That is true as a matter of law and as a matter of fact.
Starting with the law, as this Committee made clear in
President Nixon's case, a President who tries and fails to
abuse power remains subject to removal for his underlying
wrong.\747\ George Mason confirmed this principle at the
Constitutional Convention, where he declared that ``attempts to
subvert the Constitution'' rank as ``great and dangerous
offenses.''\748\ That is because attempts can still reveal the
President as a threat to our society. Impeachment exists to
save the Nation from such threats; we need not wait for harm to
befall, or for the President to try again, before deeming his
conduct impeachable.\749\ This principle applies with added
force where the President has insisted that he did nothing
wrong and has unrepentantly continued his pattern of
misconduct.
---------------------------------------------------------------------------
\747\See Nixon Impeachment Report at 82-136.
\748\Cass R. Sunstein, Impeachment: A Citizen's Guide 47 (2017).
\749\As Professor Feldman testified, ``If the President of the
United States attempts to abuse his office, that is a complete
impeachable offense. The possibility that the President might get
caught in the process of attempting to abuse his office and then not be
able to pull it off does not undercut in any way the impeachability of
the act. . . . The attempt itself is the impeachable act.''
Constitutional Grounds Hearing (2019).
---------------------------------------------------------------------------
Turning to the facts, the military and security assistance
was released to Ukraine only after President Trump got caught.
On August 12, 2019, a whistleblower filed a complaint
concerning the President's July 25 call and his actions towards
Ukraine.\750\ In late August, the President's counsel
reportedly briefed President Trump about the complaint.\751\ On
September 5, The Washington Post published an editorial
alleging that President Trump had withheld aid to Ukraine in an
attempt ``to force Mr. Zelensky to intervene in the 2020 U.S.
presidential election by launching an investigation of the
leading Democratic candidate, Joe Biden.''\752\ On September 9,
several House Committees launched an 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.''\753\ On September 10, Intelligence Committee
Chairman Adam Schiff requested that the complaint be provided
to the Committee, as required by law.\754\ Finally, on
September 11, without any public explanation, President Trump
abruptly ordered that the assistance be released to Ukraine;
remarkably, he still has not held a White House meeting with
President Zelensky.
---------------------------------------------------------------------------
\750\Letter from Michael K. Atkinson, Inspector General of the
Intelligence Community, to Adam Schiff, Chairman, H. Permanent Select
Comm. on Intelligence, and Devin Nunes, Ranking Member, H. Permanent
Select Comm. on Intelligence (Sept. 9, 2019).
\751\Michael S. Schmidt et al., Trump Knew of Whistleblower
Complaint When He Released Aid to Ukraine, N.Y. Times, Nov. 26, 2019.
\752\Editorial, Trump Tries to Force Ukraine to Meddle in the 2020
Election, Wash. Post, Sept. 5, 2019.
\753\H. Perm. Select Comm. on Intelligence, Three House Committees
Launch Wide-Ranging Investigation into Trump-Giuliani Ukraine Scheme
(Sept. 9, 2019).
\754\Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, to Joseph Maguire, Acting Director of Nat'l Intelligence
(Sept. 10, 2019).
---------------------------------------------------------------------------
This delay in releasing the assistance had significant
real-world consequences. By the time the President ordered the
release of security assistance to Ukraine, the Department of
Defense was unable to spend approximately 14 percent of the
funds appropriated by Congress for Fiscal Year 2019; as a
result, Congress had to pass a new law to extend the funding in
order to ensure the full amount could be used by Ukraine to
defend itself.\755\ Moreover, by delaying the assistance for
purposes understood by United States and Ukrainian officials as
corrupt, President Trump harmed our relationship with Ukraine,
signaled vulnerability to Russia, and more broadly injured
American credibility and national security. As Ambassador
Taylor testified, President Vladimir Putin of Russia would
``love to see the humiliation of President Zelensky at the
hands of the Americans,''\756\ which ``would give the Russians
a freer hand.''\757\ Ambassador Taylor further emphasized that
the Ukrainians ``counted on . . . the assurance of U.S.
support'' and so the hold on assistance had ``shaken their
faith in us.''\758\ President Zelensky echoed a similar
sentiment in a recent interview with Time: ``I don't want us to
look like beggars. But you have to understand, we're at war. If
you're our strategic partner, then you can't go blocking
anything for us.''\759\
---------------------------------------------------------------------------
\755\Cooper-Hale Hearing Tr. at 13, 69; see also Continuing
Appropriations Act, 2020, and Health Extenders Act of 2019, H.R. 4378,
116th Cong (2019).
\756\Taylor-Kent Hearing Tr. at 40.
\757\Taylor Dep. Tr. at 210.
\758\Id. at 28, 39.
\759\Simon Shuster, `I Don't Trust Anyone at All.' Ukrainian
President Volodymyr Zelensky Speaks Out on Trump, Putin and a Divided
Europe, Time, Dec. 2, 2019.
---------------------------------------------------------------------------
The bottom line is that President Trump used for personal
political gain the powers entrusted to his office. He did so
knowingly, deliberately, and repeatedly. He involved parts of
the Executive Branch in his scheme. He undermined American
security and democracy to help ensure his re-election--and did
not care. And after he was caught, President Trump not only
insisted his conduct was acceptable and did everything in his
power to obstruct Congress's investigation into his misconduct,
he also sought to normalize and justify his behavior by
publicly soliciting foreign powers to investigate a citizen who
is challenging him in next year's election.
A President who acts this way believes he stands above the
law. That belief is itself a guarantee that allowing him to
remain in our highest office, vested with our mightiest
political powers, poses a continuing threat to the
Constitution. Unless he is stopped, President Trump will
continue to erode our democracy and the fundamental values on
which the Nation was founded.
6. Consistency with Previous Conduct
The First Article of Impeachment impeaches President Trump
for abuse of power relating to Ukraine. Yet, as noted in that
Article, President Trump's conduct is ``consistent with
President Trump's previous invitations of foreign interference
in United States elections.'' An understanding of those
previous efforts, and the pattern of misconduct they represent,
sheds light on the particular conduct set forth in that Article
as sufficient grounds for the impeachment of President Trump.
These previous efforts include inviting and welcoming
Russian interference in the 2016 United States Presidential
election. On July 27, 2016, then-candidate Trump declared at a
public rally: ``Russia, if you're listening, I hope you're able
to find the 30,000 emails that are missing. I think you will
probably be rewarded mightily by our press.''\760\ The
referenced emails were stored on a personal server used by
then-candidate Trump's political opponent, Hillary Clinton. And
Russia was listening. Within approximately five hours of
Trump's statement, Russian hackers targeted Clinton's personal
office and the referenced emails for the very first time.\761\
---------------------------------------------------------------------------
\760\Mueller Report, Vol. I at 49.
\761\Id.
---------------------------------------------------------------------------
In the fall of 2016, as Election Day approached, WikiLeaks
began publishing stolen emails that were damaging to the
Clinton Campaign. WikiLeaks received these e-mails from the
GRU, a Russian military group. Rather than condemn this
interference in our elections, then-candidate Trump repeatedly
praised and encouraged Wikileaks. For instance, he said on
October 10, 2016: ``This just came out. WikiLeaks! I love
WikiLeaks!''\762\ Two days later, he said: ``This WikiLeaks
stuff is unbelievable. It tells you the inner heart, you gotta
read it.''\763\ Similar statements from then-Candidate Trump
continued over the following weeks. As the Special Counsel
testified before House Committees, to call these statements
``problematic'' would be an ``understatement'' because they
gave ``hope or some boost to what is and should be illegal
activity.''\764\
---------------------------------------------------------------------------
\762\Former Special Counsel Robert S. Mueller, III on the
Investigation into Russian Interference in the 2016 Presidential
Election: Hearing Before the H. Perm. Select Comm. on Intelligence,
116th Cong. 49 (July 24, 2019) (hereinafter ``HPSCI Mueller Hearing'').
\763\Id. at 48-49.
\764\Id.
---------------------------------------------------------------------------
During this period, senior members of the Trump Campaign
were maintaining significant contacts with Russian nationals
and seeking damaging information on candidate Hillary
Clinton.\765\ Among other evidence of such contacts, the
Special Counsel's Report notes that President Trump somehow
knew in advance about upcoming releases of stolen emails;\766\
that the Trump Campaign's foreign policy adviser met repeatedly
with Russian officials who claimed to have ``dirt'' on Clinton
``in the form of thousands of emails'';\767\ and that Trump
Campaign Chairman Paul Manafort caused internal campaign
polling data to be shared with a Russian national.\768\ There
is no indication that anyone from the Trump Campaign, including
the candidate, reported any of these contacts or offers of
foreign assistance to U.S. law enforcement.\769\
---------------------------------------------------------------------------
\765\Mueller Report, Vol. I at 5-7, 66-144.
\766\Id. at 54.
\767\Id. at 5-6. This individual--George Papadopoulos has since
been sentenced to 14 days in prison for lying to the F.B.I. about his
contacts with Russian intermediaries during the 2016 presidential race.
See Mark Mazzetti & Sharon LaFraniere, George Papadopoulos, Ex-Trump
Adviser, Is Sentenced to 14 Days in Jail, N.Y. Times, Sept. 7, 2018.
\768\Mueller Report, Vol. I at 129. Mr. Manafort has since been
sentenced to over 7 years in prison for various federal crimes,
including conspiracy against the United States and obstruction of
justice. See id., Vol I at 129 n.838.
\769\See HPSCI Mueller Hearing Tr. at 29.
---------------------------------------------------------------------------
A redacted version of the Special Counsel's Report was
released to the public on April 18, 2019. The evidence obtained
by the Special Counsel relating to this conduct, including
Russia's attack on our elections, resulted in the criminal
indictment of more than a dozen defendants.\770\ It also
indicated that the President had sought to thwart rather than
advance the Special Counsel's investigation into Russian
interference. When this Committee conducted its own
investigation, President Trump similarly sought to thwart
rather than advance those fact-finding efforts.
---------------------------------------------------------------------------
\770\Mueller Report, Vol. I at 14 n.4; see also id., Vol. I at 174-
75.
---------------------------------------------------------------------------
Since the release of the Special Counsel's report,
President Trump has confirmed his willingness to welcome and
invite foreign interference in our elections. For example, two
months after the report was released and while President Trump
was under congressional investigation, he admitted on live
television that he would still welcome foreign interference. In
an interview with George Stephanopoulos, President Trump
disputed the idea that if a foreign government provided
information on a political opponent--as Russia had done in
2016--it would be considered interference in our elections:
``[I]t's not an interference, they have information--I think
I'd take it if I thought there was something wrong, I'd go
maybe to the FBI--if I thought there was something wrong. But
when somebody comes up with oppo research, right, they come up
with oppo research, `oh let's call the FBI.' The FBI doesn't
have enough agents to take care of it.''\771\
---------------------------------------------------------------------------
\771\Interview by George Stephanopoulos of President Donald Trump,
ABC News, Jun. 13, 2019.
---------------------------------------------------------------------------
On July 24, 2019, the Special Counsel testified before
HPSCI and this Committee.\772\ He affirmed his Report's
evidence, which showed that--despite over 100 contacts between
individuals associated with the Trump Campaign and Russian
nationals or their agents while Russia was attacking our
elections--no one from the Trump Campaign reported those
contacts to law enforcement.\773\ The Special Counsel
emphasized to the Committees that reporting such information is
something that Presidential campaigns ``would and should do,''
not least because ``knowingly accepting foreign assistance
during a Presidential campaign'' is a crime.\774\
---------------------------------------------------------------------------
\772\Oversight of the Report on the Investigation into Russian
Interference in the 2016 Presidential Election: Former Special Counsel
Robert S. Mueller, III: Before the H. Comm. On the Judiciary, 116th
Cong. (July 24, 2019); see also HPSCI Mueller Hearing.
\773\See Karen Yourish & Larry Buchanan, Mueller Report Shows Depth
of Connections Between Trump Campaign and Russians, N.Y. Times, Apr.
19, 2019.
\774\HPSCI Mueller Hearing Tr. at 30.
---------------------------------------------------------------------------
The next day, however, President Trump did the opposite: he
did not just accept and fail to report foreign interference in
our elections, he demanded it on his July 25 call with
President Zelensky. Moreover, this time he leveraged the powers
of his presidential office, including military and security
assistance and a White House visit, against a vulnerable
foreign ally.
The Constitution creates a democracy that derives its power
from the American people. Elections are crucial to that system
of self-government. But the Framers knew that elections alone
could ``not guarantee that the United States would remain a
republic'' if ``unscrupulous officials''' rigged the process.
President Trump has done just that. He has done it before, he
has done it here, and he has made clear he will do it again. As
Professor Karlan observes, what happened in ``2016 was bad
enough: there is a widespread agreement that Russian operatives
intervened to manipulate our political process.''\775\ But
``that distortion is magnified'' when the President uses his
official powers to procure and induce foreign intervention, all
as part of a scheme to ensure his own re-election.\776\
---------------------------------------------------------------------------
\775\Constitutional Grounds Hearing (2019) (written testimony of
Professor Pamela S. Karlan).
\776\Id.
---------------------------------------------------------------------------
Although the First Article of Impeachment addresses
President Trump's solicitation and pressuring of Ukraine to
announce two investigations for his own personal political
benefit, as well as his persistence in such conduct since the
scheme came to light, the consistency of this scheme with his
broader pattern of welcoming and inviting foreign interference
into our elections is relevant and striking.
E. IT IS NECESSARY TO APPROVE ARTICLES OF IMPEACHMENT WITHOUT DELAY
There is an instinct in any investigation to seek more
evidence, interview more witnesses, and turn over every
remaining stone. But there also comes a point when the evidence
is powerful enough, and the danger of delay is great enough,
that inaction is irresponsible. We have reached that point
here. For all the reasons given above, President Trump will
continue to threaten the Nation's security, democracy, and
constitutional system if he is allowed to remain in office.
That threat is not hypothetical. As noted above, President
Trump has persisted during this impeachment inquiry in
soliciting foreign powers to investigate his political
opponent. The President steadfastly insists that he did nothing
wrong and is free to do it all again. Every day that this
Committee fails to act is thus another day that the President
might use the powers of his office to rig the election while
ignoring or injuring vital national interests. In Chairman
Schiff's words: ``The argument `Why don't you just wait?'
amounts to this: `Why don't you just let him cheat in one more
election? Why not let him cheat just one more time? Why not let
him have foreign help just one more time?'''\777\
---------------------------------------------------------------------------
\777\Allan Smith & Rebecca Shabad, House Leaders Unveil Two
Articles of Impeachment, Accusing Trump of `High Crimes and
Misdemeanors,' NBC News, Dec. 10, 2019 (quoting Chairman Schiff).
---------------------------------------------------------------------------
Members of the Minority have objected that the evidence is
too thin; that it rests entirely on hearsay, speculation, and
presumptions. That accusation is false. The evidentiary record
developed by the Investigating Committees is extensive. The
Committees heard more than 100 hours of deposition testimony
from 17 witnesses with personal knowledge of key events. HPSCI
heard an additional 30 hours of public testimony from 12 of
those witnesses.\778\ In addition, the Committees considered
the records of President Trump's phone calls with President
Zelensky. They obtained hundreds of text messages, which
navigate the months-long efforts by Mr. Giuliani and United
States officials to push Ukraine to make a public statement
announcing the politically-motivated investigations sought by
President Trump. They relied on hundreds of public statements,
interviews, and tweets by the President and Mr. Giuliani, his
personal attorney, unabashedly describing efforts to pursue
investigations into former Vice President Biden prior to the
2020 election. And they relied on the press briefing by Mr.
Mulvaney, who confirmed why the military and security
assistance was withheld and then told Americans to ``get over''
it.\779\
---------------------------------------------------------------------------
\778\Ukraine Report at 7.
\779\Id. at 12; The White House, Press Briefing by Acting Chief of
Staff Mick Mulvaney (Oct. 17, 2019).
---------------------------------------------------------------------------
The record contains extensive direct evidence--powerfully
corroborated by circumstantial evidence--rendering the key
facts indisputable. Most critically, the record includes the
President's own words on the July 25 call, which by itself
reveals his corrupt scheme. It includes testimony and
contemporaneous text messages from Ambassadors Volker and
Sondland, who were directed by the President to ``Talk to
Rudy,''\780\ and who pushed Ukrainian officials to publicly
announce the two investigations to ``break the logjam'' on
assistance and a White House visit.\781\ It includes the
testimony of three first-hand witnesses to the July 25 phone
call. It includes the testimony of Mr. Holmes, who overheard
President Trump ask Ambassador Sondland whether President
Zelensky was ``going to do the investigation,''\782\ and who
was then told by Ambassador Sondland that President Trump cared
only about the ``big stuff'' (namely, the investigations and
nothing else relating to Ukraine).\783\ It includes the
testimony of Ambassador Sondland, a political appointee of the
President who had multiple discussions with him--and who
confirmed that there was a ``quid pro quo'' relating to the
potential White House visit for President Zelensky, and that,
in light of President Trump's statements and conduct, it became
clear that assistance was also conditioned on an announcement
of the investigations.\784\
---------------------------------------------------------------------------
\780\Sondland Dep. Tr. at 62; Volker Dep. Tr. 305; Morrison-Volker
Hearing Tr. at 39.
\781\Sondland Hearing Tr. at 29.
\782\Hill-Holmes Hearing Tr. at 29.
\783\Id.
\784\Sondland Hearing Tr. at 26.
---------------------------------------------------------------------------
Collectively, the evidence gathered by the Investigating
Committees is consistent, reliable, well-corroborated, and
derived from diverse sources. It paints a detailed picture of
President Trump's scheme. To the extent that the Committees did
not obtain additional documents--or additional testimony from
witnesses with personal knowledge of the relevant events--that
is a direct consequence of the President's unprecedented,
categorical, and indiscriminate order that the entire Executive
Branch unlawfully defy duly authorized Congressional subpoenas.
As explained in the discussion of the Second Article of
Impeachment, the President's obstruction of Congress is not
cured by the possibility of judicial review, which, among other
difficulties, would undoubtedly last well beyond the very
election that President Trump seeks to corrupt. Given the
President's unlawful cover up, and given the powerful evidence
of a looming Presidential threat to the next election, this
Committee cannot stand silent. Nor can it agree that the record
is insufficient just because it could be broader. The record
stands firmly on its own two feet. Indeed, President Trump has
not stonewalled the entire impeachment inquiry so that he can
protect a hidden trove of exculpatory evidence.
Put simply, President Trump's own words reveal that he
solicited a foreign government to investigate his political
rival. The President did so for his own political gain, rather
than for foreign policy reasons. The testimony of experienced,
expert officials in his own administration--including several
of his own appointees--reveal that the President used his
official powers as leverage to pressure a vulnerable strategic
partner to do his bidding. And every indication, every piece of
evidence, supports that the President will abuse his power
again. Under these circumstances, Congress is duty-bound to
invoke its ``sole Power of Impeachment.''
IV. Conclusion
To the Framers of our Constitution, tyranny was no
abstraction. They had suffered under King George III. They had
studied republics that faltered when public virtue fell to
private vice. They knew that freedom demands constant
protection from leaders whose taste of power sparks a voracious
need for more. So even as they created a powerful Presidency,
they authorized Congress to impeach and remove Presidents whose
persistence in office threatened the Constitution. As they
designed this impeachment power, they turned repeatedly to
three risks: corrupt abuse of power; betrayal of the nation
through foreign entanglements; and corruption of free and fair
elections.
President Trump has realized the Framers' worst nightmare.
He has abused his power in soliciting and pressuring a
vulnerable foreign nation to corrupt the next United States
Presidential election by sabotaging a political opponent and
endorsing a debunked conspiracy theory promoted by our
adversary, Russia. President Trump has done all this for his
own personal gain, rather than for any legitimate reason, and
has compromised our national security and democratic system in
the process. After he was caught, President Trump defiantly
insisted his conduct was ``perfect.''
Democracy is fragile. Men and women have fought and died to
protect ours--and for the right to participate in it. The
President of the United States is a steward of that system, in
which ``We the People'' are sovereign. His duty is to uphold
the Constitution and protect our lives and liberty. But
President Trump has betrayed that trust. He has placed his own
interest in retaining power above our national security and
commitment to self-governance. He has done so before, he has
done so here, and he will undoubtedly do so again. To protect
the Nation, and preserve our freedom, President Trump must be
impeached by the House of Representatives for abuse of power.
Article II: Obstruction of Congress
I. The Second Article of Impeachment
The Constitution provides that the House of Representatives
``shall have the sole Power of Impeachment'' and that the
President ``shall be removed from Office on Impeachment for,
and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.'' In his conduct of the office of President of
the United States--and in violation of his constitutional oath
faithfully to execute the office of President of the United
States and, to the best of his ability, preserve, protect, and
defend the Constitution of the United States, and in violation
of his constitutional duty to take care that the laws be
faithfully executed--Donald J. Trump has directed the
unprecedented, categorical, and indiscriminate defiance of
subpoenas issued by the House of Representatives pursuant to
its ``sole Power of Impeachment''. President Trump has abused
the powers of the Presidency in a manner offensive to, and
subversive of, the Constitution, in that:
The House of Representatives has engaged in an impeachment
inquiry focused on President Trump's corrupt solicitation of
the Government of Ukraine to interfere in the 2020 United
States Presidential election. As part of this impeachment
inquiry, the Committees undertaking the investigation served
subpoenas seeking documents and testimony deemed vital to the
inquiry from various Executive Branch agencies and offices, and
current and former officials.
In response, without lawful cause or excuse, President
Trump directed Executive Branch agencies, offices, and
officials not to comply with those subpoenas. President Trump
thus interposed the powers of the Presidency against the lawful
subpoenas of the House of Representatives, and assumed to
himself functions and judgments necessary to the exercise of
the ``sole Power of Impeachment'' vested by the Constitution in
the House of Representatives.
President Trump abused the powers of his high office
through the following means:
(1) Directing the White House to defy a lawful
subpoena by withholding the production of documents
sought therein by the Committees.
(2) Directing other Executive Branch agencies and
offices to defy lawful subpoenas and withhold the
production of documents and records from the
Committees--in response to which the Department of
State, Office of Management and Budget, Department of
Energy, and Department of Defense refused to produce a
single document or record.
(3) Directing current and former Executive Branch
officials not to cooperate with the Committees--in
response to which nine Administration officials defied
subpoenas for testimony, namely John Michael ``Mick''
Mulvaney, Robert B. Blair, John A. Eisenberg, Michael
Ellis, Preston Wells Griffith, Russell T. Vought,
Michael Duffey, Brian McCormack, and T. Ulrich
Brechbuhl.
These actions were consistent with President Trump's
previous efforts to undermine United States Government
investigations into foreign interference in United States
elections.
Through these actions, President Trump sought to arrogate
to himself the right to determine the propriety, scope, and
nature of an impeachment inquiry into his own conduct, as well
as the unilateral prerogative to deny any and all information
to the House of Representatives in the exercise of its ``sole
Power of Impeachment''. In the history of the Republic, no
President has ever ordered the complete defiance of an
impeachment inquiry or sought to obstruct and impede so
comprehensively the ability of the House of Representatives to
investigate ``high Crimes and Misdemeanors''. This abuse of
office served to cover up the President's own repeated
misconduct and to seize and control the power of impeachment--
and thus to nullify a vital constitutional safeguard vested
solely in the House of Representatives.
In all of this, President Trump has acted in a manner
contrary to his trust as President and subversive of
constitutional government, to the great prejudice of the cause
of law and justice, and to the manifest injury of the people of
the United States.
Wherefore, President Trump, by such conduct, has
demonstrated that he will remain a threat to the Constitution
if allowed to remain in office, and has acted in a manner
grossly incompatible with self-governance and the rule of law.
President Trump thus warrants impeachment and trial, removal
from office, and disqualification to hold and enjoy any office
of honor, trust, or profit under the United States.
II. Introduction
This Nation has no kings. Unlike a monarch, whose every
word is law, the President of the United States answers to the
Constitution and the American people. He ordinarily does so
through elections, legislative oversight, judicial review, and
public scrutiny. In truly extraordinary cases, however, the
Constitution empowers the House of Representatives to hold the
President accountable through its ``sole Power of
Impeachment.''\785\ This power is not to be exercised lightly.
It is one of the greatest powers in the Constitution. But when
the House, in its own independent judgment, has cause to
suspect the President of committing ``high Crimes and
Misdemeanors,'' it has the constitutional right and duty to
investigate his conduct.\786\ As Presidents, legislators, and
judges have long recognized, that authority inheres in the
``sole Power of Impeachment,'' which would be undermined if the
House lacked a thorough power of inquiry.
---------------------------------------------------------------------------
\785\U.S. Const., art. I, Sec. 2, cl. 5.
\786\U.S. Const., art. II, Sec. 4.
---------------------------------------------------------------------------
In the history of the Republic, no President has ever
claimed the unilateral prerogative to categorically and
indiscriminately defy a House impeachment inquiry. Nor has any
President ever directed his administration to do so. On the
contrary, every President to address the issue has acknowledged
that Congress possesses a broad and penetrating power of
inquiry when investigating grounds for impeachment. Even
President Richard M. Nixon, who resisted full personal
compliance with House subpoenas, instructed his staff to
testify voluntarily in the Senate Watergate inquiry: ``All
members of the White House Staff will appear voluntarily when
requested by the committee. They will testify under oath, and
they will answer fully all proper questions.''\787\
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\787\The White House, Remarks by President Nixon (Apr. 17, 1973).
---------------------------------------------------------------------------
Presidents wield extraordinary power, but they do so under
law. That law provides the House with sole authority to impeach
Presidents. It does not allow Presidents to dictate the terms
on which they will be impeached or investigated for impeachable
offenses, to order subordinates to break the law by ignoring
subpoenas, or to use executive power to orchestrate a cover up.
The Constitution confirms that the House alone, and not the
President, determines what documents and testimony are relevant
to its exercise of the impeachment power.
If allowed to stand, President Trump's actions will
undermine the Constitution's defenses against a tyrannical
President. Over the past months, the House has engaged in an
impeachment inquiry focused on President Trump's corrupt
solicitation and inducement of Ukrainian interference in the
2020 United States Presidential Election. As part of this
inquiry, the Investigating Committees served subpoenas on
various Executive Branch agencies and offices, as well as
current and former officials, seeking documents and testimony
relevant to the investigation. President Trump responded by
directing all Executive Branch agencies, offices, and officials
not to cooperate with the impeachment inquiry. In so doing, he
arrogated to himself the power to determine when and how an
impeachment inquiry should be carried out. President Trump's
direction has no precedent in American history. His order to
the Executive Branch was categorical and indiscriminate. It did
not allow for any case-by-case weighing of privacy or national
security interests, nor did it permit any efforts at
accommodation or compromise. Through his order, the President
slammed the door shut.
Following President Trump's direction, and at his behest,
the White House, the Department of State under Secretary
Michael R. Pompeo, the Office of Management and Budget under
Acting Director Russell T. Vought, the Department of Energy
under Secretary James Richard ``Rick'' Perry, and the
Department of Defense under Secretary Mark T. Esper refused to
produce a single document or record in response to
Congressional subpoenas. Moreover, adhering to President
Trump's direction, nine Administration officials defied
subpoenas for testimony, namely John Michael ``Mick'' Mulvaney,
Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston
Wells Griffith, Russell T. Vought, Michael Duffey, Brian
McCormack, and T. Ulrich Brechbuhl. In directing these
agencies, offices, and officials to disobey subpoenas,
President Trump prevented Congress from obtaining additional
evidence highly pertinent to the House's impeachment inquiry.
He did so, moreover, through an official direction lacking any
valid cause or excuse--and that strikingly reflected his
previous pattern of obstructing United States government
investigations into foreign interference in our elections. By
engaging in this conduct, President Trump grossly abused his
power and sought to arrogate to himself the right to determine
the propriety, scope, and nature of an impeachment inquiry into
his own wrongdoing.
Despite President Trump's obstruction, the Investigating
Committees gathered overwhelming evidence of his misconduct
from courageous public servants who were willing to follow the
law, comply with subpoenas, and tell the truth. On the basis of
that formidable body of evidence, the House Committee on the
Judiciary recommends the adoption of the First Article of
Impeachment.
Yet there can be no doubt that President Trump's blanket
defiance of Congressional subpoenas, and his direction that
many others defy such subpoenas, substantially interfered with
the House's efforts to fulfill its constitutional
responsibilities. ``If left unanswered, President Trump's
ongoing effort to thwart Congress' impeachment power risks
doing grave harm to the institution of Congress, the balance of
power between our branches of government, and the
Constitutional order that the President and every Member of
Congress have sworn to protect and defend.''\788\
---------------------------------------------------------------------------
\788\The Trump-Ukraine Impeachment Inquiry Report: Report for the
H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in
Consultation with the H. Comm. on Oversight and Reform and the H. Comm.
on Foreign Affairs at 28, 116th Cong. (2019) (hereinafter ``Ukraine
Report'').
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President Trump's obstruction of Congress does not befit
the leader of a democratic society. It calls to mind the very
claims of royal privilege against which our Founders rebelled.
Nor is President Trump's obstruction mitigated by a veneer of
legal arguments. Some conclusions are so obviously wrong that
their premises cannot be taken seriously; that is true of
President Trump's theory that he sets the terms of his own
impeachment. Through this conduct, President Trump has shown
his rejection of checks and balances. A President who will not
abide legal restraint or supervision is a President who poses
an ongoing threat to our liberty and security.
The Second Article of Impeachment reflects the judgment of
the Committee that President Trump committed ``high Crimes and
Misdemeanors'' in directing the unprecedented, categorical, and
indiscriminate defiance of subpoenas issued by the House
pursuant to its ``sole Power of Impeachment.'' As the Article
explains: ``This abuse of office amounts to an effort by the
President to seize and control the power of impeachment--and
thus to nullify a vital constitutional safeguard vested solely
in the House of Representatives.''\789\
---------------------------------------------------------------------------
\789\H. Res. 755, Articles of Impeachment Against President Donald
J. Trump, 116th Cong. (Dec. 11, 2019).
---------------------------------------------------------------------------
III. President Trump Committed ``High Crimes and Misdemeanors'' in
Directing Categorical and Indiscriminate Defiance of the House
Impeachment Inquiry
Under our Constitution, the House is empowered to
investigate grounds for impeachment and the President is
required to cooperate with such investigations. Given the
impeachment power's central role in protecting the Nation from
Presidential wrongdoing--and as confirmed by historical
practice and precedent--Congressional investigative authority
is at its constitutional zenith during an impeachment inquiry.
When the House takes up its ``sole Power of Impeachment,'' the
overwhelming presumption is that its subpoenas must be and will
be obeyed, including by the President and all other recipients
in the Executive Branch. In such cases, the House acts not only
pursuant to its ordinary legislative powers, but also serves as
a ``grand inquest of the nation.''\790\ It is therefore
presumed that ``all the archives and papers of the Executive
Departments, public or private, would be subject to . . .
inspection'' and ``every facility in the power of the Executive
[would] be afforded to enable [the House] to prosecute the
investigation.''\791\
---------------------------------------------------------------------------
\790\Report of the Committee on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, H. Rep. No. 93-1305
at 207 (1974) (quoting President Polk) (citations omitted) (hereinafter
``Committee Report on Nixon Articles of Impeachment (1974)'').
\791\Id.
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In contravention of those settled principles, and in
violation of the assignment of powers under the Constitution,
President Trump has defied a subpoena served on the White
House. He has also directed other agencies, offices, and
officials across the Executive Branch to violate their own
obligations under the law. His direction has been complete and
wholly unqualified in nature. Rather than undertake a process
of dialogue and accommodation, the President has stonewalled
all investigative prerogatives and interests held by the House
in an impeachment inquiry. Although the Justice Department and
individual Executive Branch officials have additionally raised
specific objections to certain subpoenas--none of which have
merit--President Trump's general direction that the Executive
Branch obstruct Congress has rendered those objections
practically irrelevant. President Trump's unprecedented conduct
thus raises a single question: Is it an impeachable offense
under the Constitution for the President to direct the
categorical and indiscriminate defiance of subpoenas issued
pursuant to a House impeachment inquiry?
The Committee has undertaken a thorough survey of relevant
authorities and concludes that the answer is plainly ``yes.''
This is not a close case. President Trump has asserted and
exercised the unilateral prerogative to direct complete
defiance of every single impeachment-related subpoena served on
the Executive Branch. He has purported to justify this
obstruction by attacking the motives, procedures, and
legitimacy of the House impeachment inquiry--in overt violation
of our Constitution, which vests the House (and not the
President) with the ``sole Power of Impeachment.''
Simply stated, these are not judgments for the President to
make. His position would place Presidents in control of a power
meant to restrain their own abuses. That is not what the
Constitution provides. As Judiciary Committee Chairman Peter W.
Rodino correctly explained to President Nixon in May 1974,
``[u]nder the Constitution it is not within the power of the
President to conduct an inquiry into his own impeachment, to
determine which evidence, and what version or portion of that
evidence, is relevant and necessary to such an inquiry. These
are matters which, under the Constitution, the House has the
sole power to determine.''\792\
---------------------------------------------------------------------------
\792\Committee Report on Nixon Articles of Impeachment (1974), at
194.
---------------------------------------------------------------------------
President Trump's direction to obstruct the House
impeachment inquiry is thus grossly incompatible with, and
subversive of, the Constitution. It marks a dangerous step
toward debilitating the Impeachment Clause and unraveling the
Framers' plan. This claim of Presidential power is also
recognizably wrong--as every President in American history,
except President Trump, has in fact recognized. Through his
conduct, President Trump's has revealed himself as a continuing
threat to constitutional governance if he remains in office. It
is one thing for a President to use harsh rhetoric in
criticizing an impeachment inquiry. It is something else
entirely for that President to declare such an inquiry
``illegitimate'' and use his official powers to stonewall the
House.\793\ A President who declares himself above impeachment
is a President who sees himself as above the law. That
President is a monarch in all but name and imperils our
democracy.\794\
---------------------------------------------------------------------------
\793\Letter from Pat A. Cipollone, Counsel to the President, The
White House, to Hon. Nancy Pelosi, Speaker of the House, Hon. Adam B.
Schiff, Chairman, H. Perm. Select Comm. on Intelligence, Hon. Eliot L.
Engel, Chairman, H. Foreign Affairs Comm., and Hon. Elijah E. Cummings,
Chairman, H. Comm. on Oversight and Reform, at 8 (Oct. 8, 2019)
(hereinafter, ``Oct. 8 Cipollone Letter'').
\794\See The Federalist No. 69, at 444-45 (Alexander Hamilton)
(Benjamin Fletcher Wright ed. 1961) (``The President of the United
States would be liable to be impeached, tried, and, upon conviction of
treason, bribery, or other high crimes or misdemeanors, removed from
office; and would afterwards be liable to prosecution and punishment in
the ordinary course of law. The person of the king of Great Britain is
sacred and inviolable; there is no constitutional tribunal to which he
is amenable; no punishment to which he can be subjected without
involving the crisis of a national revolution.'').
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To explain our judgment that President Trump's conduct
constitutes ``high Crimes and Misdemeanors,'' we first describe
the House's power of inquiry, as well as its power to
investigate grounds for impeachment. We next confirm the
Committee's assessment from President Nixon's case that
obstruction of a House impeachment inquiry is an impeachable
offense. Finally, we apply the law to President Trump's
conduct, consider his various excuses, and assess whether he
remains a continuing threat to constitutional governance and
democracy if allowed to remain in office.
A. THE HOUSE'S POWER OF INQUIRY
``[L]egislative subpoenas are older than our country
itself.''\795\ They originated in the English Parliament,
``when that body, as part of its campaign to `challenge the
absolute power of the monarch,' asserted `plenary authority' to
hold offending parties in contempt.''\796\ By the late 17th
century, ``[t]he privileges and powers of the [House of]
Commons''--which include the linked powers of contempt and
inquiry--``were naturally assumed to be an incident of the
representative assemblies of the Thirteen Colonies.''\797\ In
part for that reason, ``[a]fter the Revolutionary War and the
Constitutional Convention, the U.S. Congress wasted little time
in asserting its power to use compulsory process to investigate
matters of national--and potentially legislative--
importance.''\798\ Such Congressional oversight activity was
grounded in Article I of the Constitution, which grants
Congress ``[a]ll legislative Powers,''\799\ and authorizes
``[e]ach House [to] determine the Rules of its
Proceedings.''\800\ Through these provisions, the Constitution
vests the House with a ``power of inquiry,'' including
``process to enforce it,'' as an ``essential and appropriate
auxiliary to the legislative function.''\801\
---------------------------------------------------------------------------
\795\Trump v. Mazars USA, LLP, 940 F.3d 710, 718 (D.C. Cir. 2019),
cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)
(``Mazars'').
\796\Id. (quoting Watkins v. United States, 354 U.S. 178, 188
(1957)).
\797\Id. (citations omitted).
\798\Id.; see also M'Culloch v. State, 17 U.S. 316, 401 (1819)
(``[A] doubtful question . . . if not put at rest by the practice of
the government, ought to receive a considerable impression from that
practice.'').
\799\U.S. Const., art. I, Sec. 1.
\800\Id. at Sec. 5.
\801\McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
---------------------------------------------------------------------------
``So long as the [House] is investigating a matter on which
Congress can ultimately propose and enact legislation, the
[House] may issue subpoenas in furtherance of its power of
inquiry.''\802\ And the House's constitutional authority ``to
conduct investigations'' is ``broad.''\803\ ``It encompasses
inquiries concerning the administration of existing laws as
well as proposed or possibly needed statutes,'' ``[i]t includes
surveys of defects in our social, economic or political system
for the purpose of enabling the Congress to remedy them,'' and
``[i]t comprehends probes into departments of the Federal
Government to expose corruption, inefficiency or waste.''\804\
Congress may not usurp the constitutional functions of other
branches of government, violate individual rights, engage in
law enforcement, or investigate topics over which it cannot
legislate.\805\ But apart from these narrow limitations, ``[a]
legislative inquiry may be as broad, as searching, and as
exhaustive as is necessary to make effective the constitutional
powers of Congress.''\806\ Moreover, the ultimate outcome of
oversight need not be apparent from the outset for it to be
proper: ``The very nature of the investigative function--like
any research--is that it takes the searchers up some `blind
alleys' and into nonproductive enterprises. To be a valid
legislative inquiry there need be no predictable end
result.''\807\
---------------------------------------------------------------------------
\802\Comm. on Judiciary, U.S. House of Representatives v. Miers,
558 F. Supp. 2d 53, 77 (D.D.C. 2008).
\803\Watkins, 354 U.S. at 187; accord Eastland v. U.S. Servicemen's
Fund, 421 U.S. 491, 504 n.15 (1975) (``[T]he power to investigate is
necessarily broad.''); Barenblatt v. United States, 360 U.S. 109, 111
(1959) (describing Congress's investigative power as ``broad''); Quinn
v. United States, 349 U.S. 155, 161 (1955) (same); McGrain, 273 U.S.,
at 173-74 (same).
\804\Watkins, 354 U.S. at 187.
\805\See Mazars, 940 F.3d at 723.
\806\Townsend v. United States, 95 F.2d 352, 361 (D.C. Cir. 1938);
accord Mazars, 940 F.3d at 723.
\807\Eastland, 421 U.S. at 509.
---------------------------------------------------------------------------
Consistent with Congress's role in checking the Executive
Branch, ``Presidents, too, have often been the subjects of
Congress's legislative investigations.''\808\ ``Historical
examples stretch far back in time and broadly across subject
matters,'' ranging from investigations of contract fraud under
President Andrew Jackson, to allegations that President Abraham
Lincoln was mishandling military strategy during the Civil War,
to charges that President Franklin D. Roosevelt had incited the
Japanese into bombing Pearl Harbor, to President Nixon and the
Watergate scandal, to President Ronald W. Reagan's involvement
in the Iran-Contra Affair, to President William J. Clinton and
Whitewater, to the Benghazi investigation under President
Barack H. Obama.\809\
---------------------------------------------------------------------------
\808\Mazars, 940 F.3d at 721.
\809\See id. at 721-22; see also Ukraine Report, at 205-206.
---------------------------------------------------------------------------
As the Supreme Court has observed, ``[w]ithout the power to
investigate--including of course the authority to compel
testimony, either through its own processes or through judicial
trial--Congress could be seriously handicapped in its efforts
to exercise its constitutional function wisely and
effectively.''\810\esidential obstruction of legislative
subpoenas thus undermines Congress's constitutional function,
offends the separation of powers, and effectively places the
President above the law.
---------------------------------------------------------------------------
\810\Quinn, 349 U.S. at 160-61 (citations omitted).
---------------------------------------------------------------------------
B. THE HOUSE'S POWER TO INVESTIGATE GROUNDS FOR IMPEACHMENT
In light of the impeachment power's central role in our
system of checks and balances, the House's investigative
authority is at its peak during an impeachment inquiry. All
three branches of the federal government have repeatedly
confirmed this point.
When the Framers authorized the House to impeach
Presidents, they necessarily empowered it to obtain and examine
evidence deemed necessary to the exercise of that
constitutional responsibility. This understanding follows
directly from the Constitutional Convention. There, several
delegates opposed including an impeachment power in the
Constitution. They warned that it would be ``destructive of
[the executive's] independence.''\811\ The majority of
delegates agreed that allowing impeachment would affect the
separation of powers--but welcomed that result. As George Mason
declared, ``[n]o point is of more importance than that the
right of impeachment should be continued.''\812\ Alexander
Hamilton, in turn, later observed that ``the powers relating to
impeachments'' are ``an essential check in the hands of
[Congress] upon the encroachments of the executive.''\813\ Many
Americans in this period agreed that impeachment played an
important role; it would keep Presidents in line and protect
the Nation from abuse, betrayal, or corruption. Thus, even as
the Constitution created a powerful presidency, it included a
safety valve for emergencies.
---------------------------------------------------------------------------
\811\2 Farrand, Records of the Federal Convention, at 67.
\812\2 Farrand, Records of the Federal Convention, at 65.
\813\The Federalist No. 66, at 431 (Alexander Hamilton) (Benjamin
Fletcher Wright ed., 1961).
---------------------------------------------------------------------------
Yet the impeachment power could not serve that role if the
House were unable to investigate the facts necessary to make an
informed impeachment determination, or if the President could
liberally obstruct such efforts. This was recognized early on.
In 1796, the House requested that President George Washington
provide it with sensitive diplomatic materials relating to the
Jay Treaty. President Washington famously declined this request
on the ground that it exceeded the House's role and intruded
upon his executive functions. But in that same letter,
President Washington agreed that impeachment would change his
calculus: ``It does not occur that the inspection of the papers
asked for can be relative to any purpose under the cognizance
of the House of Representatives, except that of an impeachment,
which the resolution has not expressed.''\814\ In the ensuing
House debates, one Member noted that President Washington had
``admitted, by implication, that where the House expresses an
intention to impeach, the right to demand from the Executive
all papers and information in his possession belongs to
it.''\815\ And President Washington was right, because ``the
sole Power'' of impeachment includes ``a right to inspect every
paper and transaction in any department, otherwise the power of
impeachment could never be exercised with any effect.''\816\
---------------------------------------------------------------------------
\814\George Washington, Message to the House Regarding Documents
Relative to the Jay Treaty (Mar. 30, 1796) (emphasis added),
(hereinafter ``Message on Jay Treaty''); see also Laurence H. Tribe &
Joshua Matz, To End A Presidency: The Power of Impeachment 153-155
(2018) (hereinafter ``To End A Presidency'') (discussing scattered
calls in local newspapers for the impeachment of President Washington
over his handling of the Jay Treaty).
\815\Frauds Upon Indians--Right of the President to Withhold
Papers, H.R. Rep. No. 27-271, at 12 (1843); see also Message on Jay
Treaty (``It does not occur that the inspection of the papers asked for
can be relative to any purpose under the cognizance of the House of
Representatives, except that of an impeachment, which the resolution
has not expressed.'').
\816\Committee Report on Nixon Articles of Impeachment (1974) at
206 (citing 5 Annals of Congress 601 (1796)).
---------------------------------------------------------------------------
In 1833, Supreme Court Justice Joseph Story emphasized the
House's broad investigatory power in impeachments--and the
importance of not permitting the President to obstruct such
inquiries. In his influential Commentaries on the Constitution
of the United States, Justice Story addressed the interaction
between impeachment and Presidential pardons. While doing so,
he pointedly observed that ``[t]he power of impeachment will
generally be applied to persons holding high offices under the
government; and it is of great consequence that the President
should not have the power of preventing a thorough
investigation of their conduct, or of securing them against the
disgrace of a public conviction by impeachment.''\817\
---------------------------------------------------------------------------
\817\3 Joseph Story, Commentaries on the Constitution of the United
States Sec. 1495 at 352 (1833) (emphasis added).
---------------------------------------------------------------------------
In 1842, amid ongoing strife between the House and
President John Tyler, the House took substantial steps toward
an impeachment inquiry.\818\ During a dispute with President
Tyler over the production of documents--which he ultimately
provided--a Committee of the House confirmed its robust
understanding of the power to investigate impeachable offenses:
---------------------------------------------------------------------------
\818\Tribe and Matz, To End A Presidency at 19-20.
The House of Representatives has the sole power of
impeachment. The President himself in the discharge of
his most independent functions, is subject to the
exercise of this power which implied the right of
inquiry on the part of the House to the fullest and
most unlimited extent. . . . If the House possess the
power to impeach, it must likewise possess all the
incidents of that power--the power to compel the
attendance of all witnesses and the production of all
such papers as may be considered necessary to prove the
charges on which impeachment is founded. If it did not,
the power of impeachment conferred upon it by the
Constitution would be nugatory. It could not exercise
it with effect.\819\
---------------------------------------------------------------------------
\819\ Committee Report on Nixon Articles of Impeachment (1974) at
206 (internal citations omitted).
Consistent with this precedent, President James K. Polk
``cheerfully admitted'' in 1846 the right of the House to
investigate the conduct of all government officers with a view
to exercising its impeachment power.\820\ ``In such a case,''
he wrote:
---------------------------------------------------------------------------
\820\Committee Report on Nixon Articles of Impeachment (1974) at
207.
[T]he safety of the Republic would be the supreme
law, and the power of the House in the pursuit of this
object would penetrate into the most secret recesses of
the Executive Departments. It could command the
attendance of any and every agent of the Government,
and compel them to produce all papers, public or
private, official or unofficial, and to testify on oath
to all facts within their knowledge.\821\
---------------------------------------------------------------------------
\821\Committee Report on Nixon Articles of Impeachment (1974) at
207 (internal citations omitted).
President Andrew Johnson conducted himself in accordance
with this understanding when the Judiciary Committee undertook
an initial inquiry into grounds for impeachment. During that
investigation, which occurred in 1867, the Committee obtained
executive and Presidential records; interviewed cabinet
officers and Presidential aides about cabinet meetings and
conversations with the President; and examined a number of
Presidential decisions, including Presidential pardons, the
issuance of executive orders, the implementation of
Congressional Reconstruction, and the vetoing of
legislation.\822\ Multiple witnesses, moreover, answered
questions about the opinions of the President, statements made
by the President, and advice given to the President.\823\
Significantly, as this Committee has previously summarized,
``[t]here is no evidence that [President] Johnson ever asserted
any privilege to prevent disclosure of presidential
conversations to the Committee, or failed to comply with any of
the Committee's requests.''\824\
---------------------------------------------------------------------------
\822\Committee Report on Nixon Articles of Impeachment (1974) at
206 (internal citations omitted).
\823\When asked to disclose a conversation between himself and
President Johnson regarding the preparation of a veto message, an
advisor named Jeremiah Black thus agreed he was ``bound in conscience
to answer a question which that tribunal declares he ought to answer;
that he is himself not the judge of what he ought to answer and what he
ought not.'' Committee Report on Nixon Articles of Impeachment (1974)
at 207.
\824\Id.
---------------------------------------------------------------------------
With only a few exceptions, invocations of the impeachment
power largely subsided from 1868 to 1972.\825\ Yet even in that
period, while objecting to acts of ordinary legislative
oversight, Presidents Ulysses S. Grant, S. Grover Cleveland,
and Theodore Roosevelt each noted that Congress could obtain a
broader set of Executive Branch documents in an impeachment
inquiry.\826\
---------------------------------------------------------------------------
\825\Tribe and Matz, To End A Presidency at 156-169.
\826\See Staff of H. Comm. on the Judiciary, 116th Cong.,
Constitutional Grounds for Presidential Impeachment 42 (Comm. Print
2019) (citing Jonathan David Shaub, The Executive's Privilege:
Rethinking the President's Power to Withhold Information, Lawfare (Oct.
31, 2019)) (hereinafter ``Constitutional Grounds for Impeachment
(2019)'').
---------------------------------------------------------------------------
In 1973 and 1974, this Committee investigated whether
President Nixon had committed ``high Crimes and Misdemeanors.''
During that period, the Senate also investigated events
relating to the Watergate break-in and its aftermath. Faced
with these inquiries, President Nixon allowed senior
administration officials to testify voluntarily in the Senate.
As a result, many senior White House officials testified,
including White House Counsel John W. Dean III, White House
Chief of Staff H.R. ``Bob'' Haldeman, Deputy Assistant to the
President Alexander P. Butterfield, and Chief Advisor to the
President for Domestic Affairs John D. Ehrlichman.\827\
President Nixon also produced numerous documents and records in
response to Congressional subpoenas, including more than 30
transcripts of White House recordings and notes from meetings
with the President.\828\ This was consistent with prior
practice. As the Judiciary Committee explained at the time:
``Before the current inquiry, sixty-nine Federal officials had
been the subject of impeachment investigations. With the
possible exception of one minor official who invoked the
privilege against self-incrimination, not one of them
challenged the power of the committee conducting the
investigation to compel the production of evidence it deemed
necessary.''\829\
---------------------------------------------------------------------------
\827\See, e.g., Senate Select Committee on Presidential Campaign
Activities, Testimony of John Dean, Watergate and Related Activities,
Phase I: Watergate Investigation, 93d Cong. (June 25, 1973); Senate
Select Committee on Presidential Campaign Activities, Testimony of H.R.
Haldeman, Watergate and Related Activities, Phase I: Watergate
Investigation, 93d Cong. (July 30, 1973); Senate Select Committee on
Presidential Campaign Activities, Testimony of Alexander Butterfield,
Watergate and Related Activities, Phase I: Watergate Investigation, 93d
Cong. (July 16, 1973); Senate Select Committee on Presidential Campaign
Activities, Testimony of John Ehrlichman, Watergate and Related
Activities, Phase I: Watergate Investigation, 93d Cong. (July 24,
1973); see also Ukraine Report at 206.
\828\Committee Report on Nixon Articles of Impeachment (1974) at
196.
\829\Id. at 206 (footnote omitted).
---------------------------------------------------------------------------
However, President Nixon's production of records was
incomplete in a very important respect: he did not produce key
tape recordings of Oval Office conversations, and some of the
transcripts of such recordings that he produced were heavily
edited or inaccurate.\830\ President Nixon claimed that his
noncompliance with House subpoenas was necessary to protect the
confidentiality of Presidential conversations. But as we
explain further in the next section, this Committee rejected
his arguments and approved an article of impeachment against
President Nixon for obstruction of the House's impeachment
inquiry.\831\
---------------------------------------------------------------------------
\830\Id. at 203.
\831\Id. at 382-83.
---------------------------------------------------------------------------
Twenty-four years later, the House undertook impeachment
proceedings against President Clinton. Consistent with
precedent, he ``pledged to cooperate fully with the
[impeachment] investigation.''\832\ And although the House
engaged in very little independent fact-finding, President
Clinton substantially cooperated, providing written responses
to 81 interrogatories from the Judiciary Committee during the
impeachment inquiry--as well as his own DNA.\833\
---------------------------------------------------------------------------
\832\Andrew Miga, White House in Crisis, Boston Herald, Oct. 9,
1998.
\833\Impeachment of William Jefferson Clinton, President of the
United States: Report of the Committee on the Judiciary, H. Rep. No.
105-830 at 77 (1998) (``On November 5, 1998, the Committee presented
President Clinton with 81 requests for admission.'') (hereinafter
``Committee Report on Clinton Articles of Impeachment (1998)''). The
Judiciary Committee nevertheless concluded that President Clinton's
failure to respond to certain written requests for admission, and his
alleged perjurious, false, and misleading sworn statements in response
to other requests, warranted impeachment. Id. at 76 (Article IV). This
proposed article of impeachment, however, was voted down on the House
floor. 144 Cong. Rec. H11975, 12042 (1998).
---------------------------------------------------------------------------
Thus, Presidents have long recognized that the House enjoys
a nearly plenary power of inquiry while investigating grounds
for impeachment. This conclusion is further supported by an
additional Executive Branch policy. In the current view of the
Department of Justice (DOJ)--the accuracy of which we do not
here opine upon--the President cannot be indicted or face
criminal prosecution while in office.\834\ As support for that
view, DOJ has reasoned that a President ``who engages in
criminal behavior falling into the category of `high Crimes and
Misdemeanors''' is ``always subject to removal from office upon
impeachment by the House and conviction by the Senate.''\835\
DOJ adds that ``the constitutionally specified impeachment
process ensures that the immunity [of a sitting President from
prosecution] would not place the President `above the
law.'''\836\ Given DOJ's refusal to indict or prosecute a
sitting President, impeachment and removal may be one of the
few available mechanisms to hold a President immediately
accountable for criminal conduct also constituting ``high
Crimes and Misdemeanors.'' On that view, the House must have
broad access to evidence supporting or refuting allegations of
impeachable misconduct, since an unduly narrow view of the
House's authority would place the President beyond all legal
constraint.
---------------------------------------------------------------------------
\834\See A Sitting President's Amenability to Indictment and
Criminal Prosecution, 24 Op. O.L.C. 222, 260 (2000).
\835\Id. at 257.
\836\Id.
---------------------------------------------------------------------------
The Judiciary has similarly concluded that the House enjoys
broad investigative power in an impeachment setting. In
Kilbourn v. Thompson, for example, the Supreme Court
invalidated a contempt order by the House, but emphasized that
``the whole aspect of the case would have changed'' were it an
impeachment proceeding, since ``[w]here the question of such
impeachment is before either [House of Congress] acting in its
appropriate sphere on that subject, 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.''\837\
---------------------------------------------------------------------------
\837\Kilbourn v. Thompson, 103 U.S. 168, 190, 194 (1880); see also
Barry v. U.S. ex rel. Cunningham, 279 U.S. 597, 616 (1929) (recognizing
that the Senate would have added power to compel witness testimony in
an impeachment trial).
---------------------------------------------------------------------------
More recently, Judge John J. Sirica's influential opinion
on the Watergate ``road map'' likewise emphasized the special
and substantial weight assigned to legislative interests in an
impeachment context: ``[I]t should not be forgotten that we
deal in a matter of the most critical moment to the Nation, an
impeachment investigation involving the President of the United
States. It would be difficult to conceive of a more compelling
need than that of this country for an unswervingly fair inquiry
based on all the pertinent information.''\838\ Sitting en banc,
the United States Court of Appeals for the District of Columbia
Circuit further recognized that the House has enhanced legal
powers to obtain material from the President in an impeachment
inquiry because ``[t]he investigative authority of the
Judiciary Committee with respect to presidential conduct has an
express constitutional source.''\839\
---------------------------------------------------------------------------
\838\In re Report & Recommendation of June 5, 1972 Grand Jury
Concerning Transmission of Evidence to House of Representatives, 370 F.
Supp. 1219, 1230 (D.D.C. 1974).
\839\Senate Select Comm. on Presidential Campaign Activities v.
Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974).
---------------------------------------------------------------------------
A spate of decisions from the 1980s further support the
House's robust investigative powers during impeachment. In
Nixon v. Fitzgerald, the Supreme Court announced a rule of
absolute Presidential immunity from civil damages.\840\ In so
doing, it emphasized that this rule ``will not leave the Nation
without sufficient protection against misconduct on the part of
the Chief Executive,'' since ``there remains the constitutional
remedy of impeachment.''\841\ The Court pointedly added that
``[v]igilant oversight by Congress also may serve to deter
Presidential abuses of office, as well as to make credible the
threat of impeachment.''\842\ This statement constituted a
recognition by the Court that the House cannot effectively
exercise its impeachment power without the ability to undertake
``vigilant oversight.''\843\
---------------------------------------------------------------------------
\840\Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982) (``[W]e hold
that petitioner, as a former President of the United States, is
entitled to absolute immunity from damages liability predicated on his
official acts.'').
\841\Id. at 757.
\842\Id.
\843\Id.
---------------------------------------------------------------------------
Over the following years, several federal courts agreed. In
1984, the United States Court of Appeals for the Eleventh
Circuit emphasized that impeachment inquiries require courts to
place a heavy thumb on the scale in favor of turning over
materials to Congressional investigators.\844\ Three years
later, a district judge elaborated that courts have limited
power to constrain legislative investigations in an impeachment
setting: ``Ancillary to the sole power of impeachment vested in
the House by the Constitution is the power to disclose the
evidence that it receives as it sees fit. Again, recognition of
the doctrine of separation of powers precludes the judiciary
from imposing restrictions on the exercise of the impeachment
power.''\845\ In affirming this decision, the Eleventh Circuit
noted that ``[p]ublic confidence in a procedure as political
and public as impeachment is an important consideration
justifying disclosure'' of grand jury materials to
Congress.\846\
---------------------------------------------------------------------------
\844\See In re Petition to Inspect & Copy Grand Jury Materials, 735
F.2d 1261, 1269-71 (11th Cir. 1984) (``Moreover, the question under
investigation--whether an Article III judge should be recommended for
impeachment by the Congress, otherwise disciplined, or granted a clean
bill of health--is a matter of great societal importance. Given the
character of an investigating committee and what is at stake--the
public confidence in the judiciary, the independence and reputation of
the accused judge--paragraph (c)(5) must in our view be read, with very
few strings, as conferring authority to look into whatever is material
to a determination of the truth or falsity of the charges.'').
\845\In re Grand Jury Proceedings of Grand Jury No. 81-1, 669 F.
Supp. 1072, 1078 (S.D. Fla. 1987).
\846\In re Request for Access to Grand Jury Materials Grand Jury
No. 81-1, Miami, 833 F.2d 1438, 1445 (11th Cir. 1987).
---------------------------------------------------------------------------
More recent opinions have echoed these points. As one judge
observed, when ``subpoenas [are] issued in connection with an
impeachment proceeding. . . . Congress's investigatory powers
are at their peak.''\847\ Other judges have more broadly
emphasized the public interest in obtaining Executive Branch
records that may be relevant to an ongoing impeachment
inquiry.\848\
---------------------------------------------------------------------------
\847\Trump v. Deutsche Bank AG, No. 19-1540, 2019 WL 6482561 at *38
n.1 (2d Cir. Dec. 3, 2019) (Livingston, J., concurring part and
dissenting in part); see also Comm. on the Judiciary, U.S. House of
Representatives v. Donald F. McGahn II, No. 19 Civ. 2379, 2019 WL
6463406 at *6 (D.D.C. Dec. 2, 2019) (emphasizing ``the public's
interest in thorough and well-informed impeachment proceedings.''); In
re Application of Comm. on Judiciary, U.S. House of Representatives,
for an Order Authorizing Release of Certain Grand Jury Materials, No.
19-48, 2019 WL 5608827 at *3 (D.D.C. Oct. 29, 2019) (```[A]n
impeachment investigation involving the President of the United States
is a matter of the most critical moment to the Nation' . . . Both HJC
itself and the public, therefore, have an interest in HJC gaining
immediate access to this grand jury material.'') (citations and
quotation marks omitted)).
\848\See, e.g., Ctr. for Pub. Integrity v. U.S. Dep't of Def., No.
19 Civ. 3265, 2019 WL 6270921 at *3 (D.D.C. Nov. 25, 2019)
(``Currently, the [House] is in the process of conducting impeachment
proceedings concerning the same subject matter as the documents
requested by Plaintiff. As such, the requested documents are sought in
order to inform the public on a matter of extreme national concern.
Only an informed electorate can develop its opinions and persuasively
petition its elected officials to act in ways which further the aims of
those opinions.''); Am. Oversight v. U.S. Dep't of State, No. 19 Civ.
2934, 2019 WL 5665930 at *4 (D.D.C. Oct. 25, 2019) (``This is the
extraordinary case where the public interest favors placing American
Oversight's requests ahead of other requests in the State Department's
FOIA queue. Presidential impeachment investigations are solemn affairs,
which Congress thankfully has seen fit to undertake only a few times in
the Nation's history. The records American Oversight seeks, if they
exist, could directly inform the present investigation and the
surrounding public debate. The public's interest in disclosure of
responsive, non-exempt records is therefore high and outweighs any harm
to other FOIA requesters that might result from a temporary diversion
of the State Department's FOIA resources to accelerate processing of
this request.'').
---------------------------------------------------------------------------
``Long settled and established practice is a consideration
of great weight in a proper interpretation of constitutional
provisions regulating the relationship between Congress and the
President.''\849\ Viewed together, the practices and express
statements set forth above confirm that the House enjoys an
exceedingly expansive power of inquiry when investigating
grounds for impeachment. Because the House's interests in any
such inquiry evoke the interests underlying the impeachment
power itself, subpoenas issued by a House impeachment inquiry
should overcome nearly any countervailing interest or
privilege. Finally, by virtue of the plain language of Article
I of the Constitution, which vests the House with the ``sole
Power of Impeachment'' as a check against the Presidency, it is
for the House--and not the President--to determine what
documents and testimony are needed for its exercise of the
impeachment power.
---------------------------------------------------------------------------
\849\N.L.R.B. v. Noel Canning, 573 U.S. 513, 524 (2014) (quotation
marks and citation omitted).
---------------------------------------------------------------------------
C. OBSTRUCTION OF CONGRESS IS AN IMPEACHABLE OFFENSE
Impeachment is a cornerstone of the Constitution. When the
House wields the impeachment power, it serves as a grand
inquest of the Nation on behalf of the American people, charged
with protecting our democracy. Because the premise of the
Impeachment Clause is that the House must be able to act when
the President has abused his power, betrayed the national
interest, or corrupted elections, a President who obstructs
House investigators has attacked the Constitution itself. Even
when the President strenuously disagrees with the impeachment
inquiry--and even when he doubts its motives--he must obey the
law and allow others to meet their legal obligations. The
absurdity of allowing Presidents to dictate the terms of
impeachment inquiries is obvious. The danger of allowing
Presidents to do so is manifest. For that reason, Presidential
obstruction of an impeachment inquiry is itself an impeachable
abuse of power under the Constitution.\850\
---------------------------------------------------------------------------
\850\See, e.g., Frank O. Bowman III, High Crimes & Misdemeanors: A
History of Impeachment for the Age of Trump 199 (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.'').
---------------------------------------------------------------------------
To be sure, Presidents may still raise privacy, national
security, and other concerns in the course of an impeachment
inquiry, to the extent they apply. There is room for inter-
branch negotiation and accommodation--though there is an
overwhelming presumption in favor of full disclosure and
compliance with House subpoenas. But when a President abuses
his office to defy House investigators on matters that they
deem pertinent to their inquiry, and does so without lawful
cause or excuse, his conduct may constitute an unconstitutional
effort to seize and break the impeachment power vested solely
in the House. In that respect, obstruction of Congress involves
``the exercise of official power in a way that, on its very
face, grossly exceeds the President's constitutional authority
or violates legal limits on that authority.''\851\
---------------------------------------------------------------------------
\851\Constitutional Grounds for Impeachment (2019) at 18; see also
id. (explaining that impeachable abuse of power was understood by the
Framers as encompassing, inter alia, ``conduct that is inherently and
sharply inconsistent with the law--and that amounts to claims of
monarchical prerogative'').
---------------------------------------------------------------------------
This is illustrated by President's Nixon case. As explained
above, President Nixon allowed senior administration officials
to testify and produced many documents. He did not direct
anything approximating a categorical and indiscriminate
blockade of the House's impeachment inquiry. But in response to
the Judiciary Committee's eight subpoenas for recordings and
materials related to 147 conversations, he produced only
limited documents and edited transcripts of roughly 30
conversations; many of those transcripts were inaccurate or
incomplete.\852\ President Nixon claimed that his non-
compliance was legally defensible, invoking the doctrine of
executive privilege.\853\
---------------------------------------------------------------------------
\852\Committee Report on Nixon Articles of Impeachment (1974), at
203.
\853\Id. at 207-208.
---------------------------------------------------------------------------
The Judiciary Committee rejected these arguments and deemed
President Nixon's conduct to be impeachable. It observed that
his ``statements that the institution of the Presidency is
threatened when he is required to comply with a subpoena in an
impeachment inquiry exaggerate both the likelihood of such an
inquiry and the threat to confidentiality from it.''\854\ The
Committee also emphasized that ``the doctrine of separation of
powers cannot justify the withholding of information from an
impeachment inquiry.''\855\ After all, ``[t]he very purpose of
such an inquiry is to permit the House, acting on behalf of the
people, to curb the excesses of another branch, in this
instance the Executive.''\856\ Therefore, ``[w]hatever the
limits of legislative power in other contexts--and whatever
need may otherwise exist for preserving the confidentiality of
Presidential conversations--in the context of an impeachment
proceeding the balance was struck in favor of the power of
inquiry when the impeachment provision was written into the
Constitution.''\857\
---------------------------------------------------------------------------
\854\Id. at 210.
\855\Id. at 208.
\856\Id.
\857\Id. at 209.
---------------------------------------------------------------------------
Because ``the refusal of [President Nixon] to comply with
the subpoenas was an interference by him with the efforts of
the Committee and the House of Representatives to fulfill their
constitutional responsibilities,'' the Judiciary Committee
deemed it impeachable.\858\ The Committee reached that
determination even though it had ``been able to conduct an
investigation and determine that grounds for impeachment
exist,'' despite ``the President's refusal to comply.''\859\ On
that point, the Committee observed that President Nixon's
obstruction ``was not without practical import,'' since ``[h]ad
it received the evidence sought by the subpoenas, the Committee
might have recommended articles structured differently or
possible ones covering other matters.''\860\
---------------------------------------------------------------------------
\858\Id. at 188.
\859\Id. at 189.
\860\Id.
---------------------------------------------------------------------------
President Nixon's obstruction of the House impeachment
inquiry featured in two of the three articles approved by the
Judiciary Committee. Article II charged President Nixon with
abuse of power, including ``failing to act when he knew or had
reason to know that his close subordinates endeavored to impede
and frustrate lawful inquiries by duly constituted executive,
judicial and legislative entities concerning the unlawful entry
into the headquarters of the Democratic National Committee, and
the cover-up thereof, and concerning other unlawful activities
. . . .''\861\
---------------------------------------------------------------------------
\861\Id. at 3-4 (emphasis added).
---------------------------------------------------------------------------
More directly, Article III charged President Nixon with
abusing his power by interfering with the discharge of the
Judiciary Committee's responsibility to investigate fully and
completely whether sufficient grounds existed to impeach him:
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.
In all of this, Richard M. Nixon has acted in a
manner contrary to his trust as President and
subversive of constitutional government, to the great
prejudice of the cause of law and justice, and to the
manifest injury of the people of the United States . .
. .\862\
---------------------------------------------------------------------------
\862\Id. at 4.
President Nixon's case is thus persuasive authority that
Presidential defiance of a House impeachment inquiry may
constitute ``high Crimes and Misdemeanors.''
This Committee took the same view in President Clinton's
case. The fourth article of impeachment against President
Clinton charged that he had ``impaired the due and proper
administration of justice and the conduct of lawful inquiries,
and contravened the authority of the legislative branch and the
truth seeking purpose of a coordinate investigative
proceeding.''\863\ Specifically, it accused him of failing to
respond to certain written requests and making false and
misleading statements to Congress. To justify impeaching
President Clinton on that basis, the Committee reasoned as
follows:
---------------------------------------------------------------------------
\863\Committee Report on Clinton Articles of Impeachment (1998) at
4.
In responding in such a manner, the President
exhibited contempt for the constitutional prerogative
of Congress to conduct an impeachment inquiry. The
impeachment duty is a solemn one vested exclusively in
the House of Representatives as a check and balance on
the President and the Judiciary. The Committee reached
the unfortunate conclusion that the President, by
giving perjurious, false, and misleading answers under
oath to the Committee's requests for admission, chose
to take steps to thwart this serious constitutional
process.\864\
---------------------------------------------------------------------------
\864\Id. at 77.
Ultimately, the House declined to approve this article.
That decision, however, did not constitute a determination that
obstruction of a House impeachment inquiry cannot be
impeachable. Instead, it appears to reflect a judgment by the
full House that President Clinton's conduct was not
substantial, malicious, or obstructive enough to warrant an
article of impeachment.
Applying these principles, a President commits ``high
Crimes and Misdemeanors''' when he abuses his office to
substantially obstruct House impeachment investigators on
matters that it deems pertinent to its inquiry, and does so
without lawful cause or excuse.
D. PRESIDENT TRUMP HAS COMMITTED ``[H]IGH CRIMES AND MISDEMEANORS''
1. President Trump Substantially Obstructed the Impeachment Inquiry
The evidentiary record bearing on President Trump's
obstruction of the House impeachment inquiry is set forth in
the Ukraine Report and incorporated by reference here.\865\ On
the basis of that record, it is indisputable that President
Trump substantially obstructed the House impeachment inquiry.
The essential facts bearing on that judgment include the
following:
---------------------------------------------------------------------------
\865\Ukraine Report at 201-260 & nn.1-441.
---------------------------------------------------------------------------
From September through November 2019, the
Investigating Committees served subpoenas on numerous Executive
Branch agencies, offices, and officials. These subpoenas sought
evidence and testimony regarding President Trump's efforts to
solicit and pressure the Government of Ukraine to announce
investigations into former Vice President Joseph R. Biden and a
discredited conspiracy theory alleging Ukrainian interference
in the 2016 United States Presidential election.\866\
---------------------------------------------------------------------------
\866\Id. at 216-42.
---------------------------------------------------------------------------
At the time the Investigating Committees served
these subpoenas, and continually since then, they were acting
pursuant to a House impeachment inquiry under Article I of the
Constitution.\867\
---------------------------------------------------------------------------
\867\See supra The Impeachment Inquiry.
---------------------------------------------------------------------------
Even before the House launched its Ukraine
inquiry, President Trump rejected the authority of Congress to
investigate his actions, stating, ``We're fighting all the
subpoenas,''\868\ and ``I have an Article [II], where I have
the right to do whatever I want as President.''\869\
---------------------------------------------------------------------------
\868\Jeremy Diamond & Allie Malloy, Trump at war with Democrats:
`We're fighting all the subpoenas', CNN, Apr. 24, 2019.
\869\Remarks by President Trump at Turning Point USA's Teen Student
Action Summit 2019, The White House, July 23, 2019.
---------------------------------------------------------------------------
Writing ``on behalf of President Donald J.
Trump,'' White House Counsel Pat A. Cipollone sent a letter to
senior House officials on October 8, 2019, confirming that
President Trump had directed his entire Administration to defy
the impeachment inquiry. Mr. Cipollone wrote: ``President Trump
cannot permit his Administration to participate in this
partisan inquiry under these circumstances.''\870\
---------------------------------------------------------------------------
\870\Oct. 8 Cipollone Letter at 1, 4.
---------------------------------------------------------------------------
Two days later, President Trump agreed that Mr.
Cipollone was conveying the President's direction in the
October 8 letter. President Trump stated: ``As our brilliant
White House Counsel wrote to the Democrats yesterday, he said
their highly partisan and unconstitutional effort threatens
grave and lasting damage to our democratic institutions, to our
system of free elections, and to the American people. That's
what it is. To the American people. It's so terrible. Democrats
are on a crusade to destroy our democracy. That's what's
happening. We will never let it happen. We will defeat
them.''\871\
---------------------------------------------------------------------------
\871\Speech: Donald Trump Holds a Political Rally in Minneapolis,
Minnesota, Factbase Videos, Oct. 10, 2019.
Consistent with these statements, President Trump never negotiated
in good faith with the Investigating Committees. He simply made one
demand after another--each of them unjustified as a matter of law--and
asserted that he would completely blockade the Investigating Committees
if they did not concede. By no definition of the term is that a good
faith negotiation. As Chief Judge Beryl Howell has observed in a
related context, ``The reality is that DOJ and the White House have
been openly stonewalling the House's efforts to get information by
subpoena and by agreement, and the White House has flatly stated that
the Administration will not cooperate with congressional requests for
information.'' In re Application of Comm. on Judiciary, U.S. House of
Representatives, for an Order Authorizing Release of Certain Grand Jury
Materials, 2019 WL 5485221, at *36 (citing the Oct. 8 Cipollone
Letter).
---------------------------------------------------------------------------
President Trump's direction was categorical and
indiscriminate: he directed all agencies, offices, and
officials not to cooperate with the impeachment inquiry. In
other words, President Trump directed officials throughout the
Executive Branch to violate their own independent legal
obligations.
President Trump's direction was unprecedented: no
President has ever issued such direction--or anything even
approximating it--in response to an impeachment inquiry.
President Trump's direction had the natural and
foreseeable consequence of obstructing--and did, in fact,
obstruct--the House impeachment inquiry:
Defying a subpoena, the White House refused to
produce any information or records to the Investigating
Committees as part of this inquiry.\872\
---------------------------------------------------------------------------
\872\See Ukraine Report at 217. The White House has not produced a
single document in response to the subpoena. Instead, it has released
to the public only two documents: call records from the President's
phone calls with President Zelensky on April 21 and July 25, 2019. The
public release of a mere two documents comes nowhere close to
satisfying President Trump's obligations, or to mitigating the sheer
scope and scale of his Administration-wide obstruction of Congress.
---------------------------------------------------------------------------
Defying subpoenas, the Department of State, the
Office of Management and Budget, the Department of
Energy, and the Department of Defense refused to
produce a single record to the Investigating Committees
as part of this inquiry.\873\
---------------------------------------------------------------------------
\873\See Ukraine Report at 219-227.
---------------------------------------------------------------------------
Defying subpoenas, nine Administration
officials refused to testify before the Investigating
Committees, namely Mick Mulvaney (Acting White House
Chief of Staff), Robert B. Blair (Assistant to the
President and Senior Advisor to the Chief of Staff),
John A. Eisenberg (Deputy Counsel to the President for
National Security Affairs and Legal Advisor, National
Security Council), Michael Ellis (Senior Associate
Counsel to the President 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 of Energy Rick Perry), and T. Ulrich
Brechbuhl (Counselor, Department of State).\874\
---------------------------------------------------------------------------
\874\See Ukraine Report at 231-244. ``In addition to the
President's broad orders seeking to prohibit all Executive Branch
employees from testifying, many of these witnesses were personally
directed by senior political appointees not to cooperate with the
House's impeachment inquiry. These directives frequently cited or
enclosed copies of Mr. Cipollone's October 8 letter conveying the
President's order not to comply.'' Id. at 31, 243.
---------------------------------------------------------------------------
The Investigating Committees concluded--with ample
reason--that this defiance of their subpoenas resulted in the
denial of evidence relevant to the inquiry. Numerous witnesses
identified specific relevant documents that have been withheld,
and there is substantial evidence that officials who followed
President Trump's direction not to appear could have offered
testimony bearing on President Trump's course of conduct
regarding Ukraine.\875\
---------------------------------------------------------------------------
\875\See Ukraine Report at 216-227, 229.
---------------------------------------------------------------------------
President Trump lacked lawful cause or excuse for
issuing his direction that all Executive Branch officials defy
their legal obligations in response to Congressional
subpoenas.\876\
---------------------------------------------------------------------------
\876\See Ukraine Report at 211-215.
---------------------------------------------------------------------------
Despite President Trump's direction that the Executive
Branch blockade the impeachment inquiry, the Investigating
Committees found clear and overwhelming evidence of his
misconduct. This includes powerful direct evidence,
strengthened and supported by compelling circumstantial
evidence, of President Trump's course of conduct and corrupt
motivations in soliciting and pressuring the Government of
Ukraine to interfere in the 2020 Presidential election. Some of
the evidence before the Committee consists of testimony from
officials who properly complied with their Congressional
subpoenas, notwithstanding the President's contrary
direction.\877\ In response to such testimony, President Trump
used the world's most powerful bully pulpit to attack,
threaten, and intimidate numerous witnesses and potential
witnesses.\878\
---------------------------------------------------------------------------
\877\See Watkins, 354 U.S. at 187-88 (``It is unquestionably the
duty of all citizens to cooperate with the Congress in its efforts to
obtain the facts needed for intelligent legislative action. It is their
unremitting obligation to respond to subpoenas, to respect the dignity
of the Congress and its committees and to testify fully with respect to
matters within the province of proper investigation.'').
\878\See Ukraine Report at 255-60. The Minority's dissenting views
on the nature of impeachable offenses consist almost exclusively of
testimony by Professor Turley, who contends that the President did not
obstruct the inquiry because ``many officials opted to testify, despite
the orders from the President that they should decline.'' Minority
Views, Constitutional Grounds for Impeachment (2019), attaching Written
Statement of Jonathan Turley, Dec. 4, 2019, at 42. This is a curious
argument. When the House issues subpoenas in an impeachment inquiry and
the President orders total defiance, it is hardly a point in the
President's favor that a handful of his subordinates disobey that
unlawful order (even as most officials comply, and even as all agencies
and offices comply). Professor Turley further notes that the officials
who violated President Trump's directive ``remain in federal service in
good standing.'' Id. But the fact that President Trump has not (yet)
fired or disciplined the witnesses who came forward in no respect
ameliorates his unlawful order. His attempts at thwarting their
testimony is itself grounds for impeachment and, significantly, he
succeeded in substantially obstructing the House impeachment inquiry as
to the strong majority of documents and testimony sought.
---------------------------------------------------------------------------
Ultimately, as in President Nixon's case, House Committees
have ``been able to conduct an investigation and determine that
grounds for impeachment exist--even in the face of the
President's refusal to comply.''\879\ But here, as there, the
President's obstruction of the House impeachment inquiry was
not ``without practical import.''\880\ It may have prevented
the House from learning the full extent of the President's
misdeeds.
---------------------------------------------------------------------------
\879\Committee Report on Nixon Articles of Impeachment (1974 at
189.
\880\Id.
---------------------------------------------------------------------------
The President thus inflicted concrete harm on the House,
which is duty-bound to inquire when it has cause to believe the
President may have committed ``high Crimes and Misdemeanors.''
The House made that judgment here when evidence emerged that
President Trump had solicited and pressured a foreign power to
interfere in our elections for his own personal political
benefit. To discharge its constitutional obligations, the
House--acting through its Committees--pursued an impeachment
inquiry and subpoenaed relevant Executive Branch agencies,
offices, and officials. In seeking to thwart the House in the
faithful performance of that constitutional function, President
Trump committed a gross abuse of power. Most immediately, this
abuse involved ordering the defiance of Congressional
subpoenas. That stands as ``an affront to the mechanism for
curbing abuses of power that the Framers carefully crafted for
our protection.''\881\
---------------------------------------------------------------------------
\881\McGahn, 2019 WL 6312011, at *28 (D.D.C. Nov. 25, 2019), appeal
docketed, No. 19-5331 (D.C. Cir. Nov. 26, 2019).
---------------------------------------------------------------------------
More fundamentally, President Trump's direction to defy
House subpoenas constituted an assault on the Impeachment
Clause itself--and thus on our Constitution's final answer to
corrupt Presidents. As explained above, the ``sole Power of
Impeachment'' authorizes the House to review information that
resides within the very branch of government it is empowered to
scrutinize. By engaging in substantial obstruction of a House
impeachment inquiry, the President could effectively seek to
control a check on his own abuses. That is exactly what
happened here.
In President Nixon's case, this Committee concluded that
``[u]nless the defiance of the [House] subpoenas . . . is
considered grounds for impeachment, it is difficult to conceive
of any President acknowledging that he is obligated to supply
the relevant evidence necessary for Congress to exercise its
constitutional responsibility in an impeachment
proceeding.''\882\ The same lesson applies now, but with
exponentially greater force. President Nixon authorized other
officials and agencies to honor their legal obligations.\883\
He also turned over many of his own documents, failing only to
respond fully to eight subpoenas.\884\ President Trump, in
contrast, directed his entire Administration--every agency,
office, and official in the Executive Branch--not to cooperate
with the impeachment inquiry, including by disobeying duly
authorized subpoenas. If this does not qualify as impeachable
obstruction of Congress, then nothing does, and the House will
have sent a dangerous invitation to future Presidents to defy
impeachment inquiries.
---------------------------------------------------------------------------
\882\Nixon Impeachment Report (1974), at 213.
\883\The President's Remarks Announcing Developments and Procedures
to be Followed in Connection with the Investigation, The White House,
Apr. 17, 1973 (``All members of the White House Staff will appear
voluntarily when requested by the committee. They will testify under
oath, and they will answer fully all proper questions.'').
\884\Committee Report on Nixon Articles of Impeachment (1974) at
478-82.
---------------------------------------------------------------------------
2. President Trump's Obstruction of Congress Lacked Lawful Cause or
Excuse and Involved Recognizably Wrongful Conduct
President Trump and his lawyers have offered various
arguments to justify the President's complete defiance of the
House impeachment inquiry. Those arguments are indefensible as
a matter of law and come nowhere close to excusing the
President's unprecedented obstruction of Congress. They amount
to a claim that the President has the power to dictate the
terms on which he is investigated for ``high Crimes and
Misdemeanors''--a claim that is fundamentally at odds with the
Constitution.
The President's excuses consist mainly of complaints about
the procedures adopted by the House and its Committees. For
example, the President asserts that the full House needed to
vote to authorize the impeachment inquiry at an earlier date;
that the Investigating Committees were required to afford him a
broad array of rights to intervene and participate in their
proceedings as they engaged in fact finding; that the
Investigating Committees were forbidden to conduct portions of
their fact-finding investigations behind closed doors; that the
Investigating Committees were required to allow agency
attorneys to attend depositions; that the Minority was entitled
to certain subpoena powers; and that the House engaged in
``threats and intimidation'' by informing Executive Branch
subpoena recipients of the legal consequences of their failure
to comply with duly authorized Congressional subpoenas.\885\
---------------------------------------------------------------------------
\885\See Oct. 8 Cipollone Letter. President Trump also raised
arguments relating to ``confidentiality interests'' and the so-called
doctrine of ``absolute immunity.'' Id.; see also, e.g., McGahn, 2019 WL
6312011, at *34-45. As to the first argument, ``[t]here is no basis in
the law of executive privilege for declaring a categorical refusal to
respond to any House subpoena. In an impeachment inquiry the House's
need for information and its Constitutional authority are at their
greatest, and the Executive's interest in confidentiality must yield.''
Ukraine Report, at 214. Moreover, although executive privilege could
not excuse or justify the President's categorical and indiscriminate
defiance, it bears notice that the President has not actually asserted
executive privilege in the House's impeachment inquiry. Turning to the
second argument, the House has never recognized the fictional theory of
``absolute immunity'' as a valid ground for defying an impeachment
inquiry, and every federal court to consider the doctrine of ``absolute
immunity'' has rejected it. See McGahn, 2019 WL 6312011, at *45; Comm.
on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d
135-36 (D.D.C. 2008). It is inconceivable that this doctrine has
lurked, in hiding, for centuries as a hidden excuse for Presidents to
block untold numbers of current and former Executive Branch officials
from giving any testimony whatsoever to the House. In any event,
President Trump's direction that the Executive Branch undertake a total
blockade of the House impeachment inquiry extends well beyond even the
most extreme view of ``absolute immunity,'' and so this doctrine
neither excuses nor explains the President's position as articulated in
Mr. Cipollone's letter.
---------------------------------------------------------------------------
The President has asserted many procedural arguments, but
they all fail for similar reasons. First, the House--not the
President--has the ``sole Power of Impeachment''\886\ and the
sole power ``to determine the Rules of its Proceedings.''\887\
President Trump's process complaints thus concern matters
entrusted to the exclusive discretion of the House. His
disagreement with how the House has organized its hearings and
carried out its investigations offers no excuse for breaking
the law and directing others to do so. Second, as already
described, impeachment proceedings are not criminal in
character and involve only the charging-style decision on
whether to accuse the President of ``high Crimes and
Misdemeanors.''\888\ Thus, although President Trump has
described his demands as seeking ``due process,'' none of these
procedures are ``due'' to him under the Constitution here.
Third, President Trump's demands have no basis in history or
prior practice, which cut against him.\889\ Finally, in passing
H. Res. 660, the House implemented procedural protections for
the President that exceed (or are consistent with) those
afforded to Presidents Nixon and Clinton.\890\ The fact that
President Trump declined to take advantage of these protections
does not excuse his across-the-board stonewalling of the
House.\891\
---------------------------------------------------------------------------
\886\U.S. Const. art. I, Sec. 2.
\887\Id. at Sec. 5.
\888\See supra The Impeachment Inquiry.
\889\See supra The Impeachment Inquiry.
\890\See supra The Impeachment Inquiry.
\891\President Trump's process objections are addressed
individually, and at much greater length, in the Ukraine Report. We
incorporate its reasoning and conclusions by reference. The October 8
letter from Mr. Cipollone raises two additional arguments, both of
which fail for the reasons set forth above. First, the President cannot
defy an impeachment inquiry just because he concludes that the minority
has not been afforded sufficient subpoena rights in House committees;
the House has both the ``sole Power of Impeachment'' and the sole power
to ``determine the Rules of its Proceedings.'' Nor can the President
ignore Congressional subpoenas, or direct others to do so, by
complaining that the House has informed subpoena recipients that it
will treat non-compliance as evidence of obstruction. The House does
not somehow forfeit its ``sole Power of Impeachment'' by pointing out
that unlawful defiance of its duly-authorized Congressional subpoenas
may have legal consequences or bear on the impeachment inquiry.
---------------------------------------------------------------------------
President Trump's remaining arguments fare no better.
Through Mr. Cipollone's letter, he asserts the prerogative to
defy all House subpoenas because he has unilaterally decided
that he did not do anything wrong.\892\ He adds that the House
must be acting with ``partisan'' and ``illegitimate''
motives.\893\ Notably, the President did not simply make these
points at a press conference or on Twitter. He had the White
House Counsel include them in a letter to the House as part of
his formal legal basis for directing obstruction of the House
impeachment inquiry.\894\
---------------------------------------------------------------------------
\892\See Oct. 8 Cipollone Letter at 6 (``It is transparent that you
have resorted to such unprecedented and unconstitutional procedures
because you know that a fair process would expose the lack of any basis
for your inquiry. Your current effort is founded on a completely
appropriate call on July 25, 2019, between President Trump and
President Zelenskyy of Ukraine [. . .] That record clearly established
that the call was completely appropriate, that the President did
nothing wrong, and that there is no basis for an impeachment
inquiry.'').
\893\Oct. 8 Cipollone Letter at 7, 8.
\894\ See id. at 5 (``In fact, your transparent rush to judgment,
lack of democratically accountable authorization, and violation of
basic rights in the current proceedings make clear the illegitimate,
partisan purpose of this purported `impeachment inquiry.'''); see also
To End A Presidency at 64-66.
---------------------------------------------------------------------------
To state the obvious, a President cannot obstruct a House
impeachment inquiry because he believes his conduct was proper
and sees no need for his acts to be investigated. Nor can he do
so by impugning the House's motives or attacking its
legitimacy. Once again, the Constitution vests the House with
the ``sole Power of Impeachment.'' These are judgments for the
House alone to make, guided always by the Constitution.
Otherwise, in contravention of the entire Anglo-American legal
tradition, Presidents would truly be the judge of their own
case.\895\ That is why the Framers gave the impeachment power
to Congress, not the President, and it is why the House and
Senate, respectively, have ``sole Power'' to impeach and to
adjudicate articles of impeachment.\896\
---------------------------------------------------------------------------
\895\See Dr. Bonham's Case, 8 Co. Rep. 114a, 118b, 77 Eng. Rep.
638, 654 (1610) (Coke, C.J.).
\896\U.S. Const. art. I, Sec. Sec. 2, 3.
---------------------------------------------------------------------------
On this score, the Supreme Court's decision in Walter Nixon
v. United States is instructive: ``Judicial involvement in
impeachment proceedings, even if only for purposes of judicial
review, is counterintuitive because it would eviscerate the
important constitutional check placed on the Judiciary by the
Framers. [Judge] Nixon's argument would place final reviewing
authority with respect to impeachments in the hands of the same
body that the impeachment process is meant to regulate.''\897\
In practice, President Trump would do what the Supreme Court
has clearly warned against: place vital constitutional
judgments about exercises of the impeachment power ``in the
hands of the same [President] that the impeachment process is
meant to regulate.''\898\ Thus, while President Trump merely
erred in asserting that the impeachment inquiry was unfounded,
partisan, and ``illegitimate,'' he moved from error to ``high
Crimes and Misdemeanors'' in declaring that his self-determined
innocence somehow justifies his scorched-earth obstruction
campaign.
---------------------------------------------------------------------------
\897\Nixon v. United States, 506 U.S. 224, 235 (1993) (quotation
marks and citation omitted).
\898\Cf. id.
---------------------------------------------------------------------------
Throughout our history, impeachments--particularly of
Presidents--have been rare. Moreover, in Judge Walter Nixon's
case, the Supreme Court made clear its extreme wariness of
intruding on powers of impeachment entrusted solely to
Congress. As a result, impeachment proceedings against a
President will inevitably raise questions of constitutional law
that have not been definitively, specifically resolved by
judicial precedent or past practice of the House. This leaves
room for inter-branch negotiation. But it does not allow the
President to seize on specious arguments, cobble them together,
and use them in an effort to justify the unjustifiable: a
Presidential direction that all House subpoenas be entirely
defied under all circumstances. Such unyielding Presidential
obstruction of an impeachment inquiry is plainly wrong. When
the House investigates impeachable offenses, the President
cannot cover up his misconduct by holding hostage all evidence
contained within the Executive Branch. The Judiciary Committee
made this clear in President Nixon's case and reaffirms that
principle today.
Simply put, there are lines that a President cannot cross
in an impeachment inquiry. Those lines exist to ensure that the
Impeachment Clause can serve its fundamental purpose as a
safeguard for the people of the United States. In
comprehensively obstructing this House impeachment inquiry,
President Trump crossed every one of these lines. He did so
without any valid cause or excuse. He must therefore be
impeached, lest future Presidents follow his example and
persist in corruption, oppression, and abuse of power with
little risk of discovery or accountability.
3. Judicial Review is Unnecessary and Impractical Here
It has been suggested that the House cannot impeach
President Trump for obstruction of Congress without seeking
judicial enforcement of the subpoenas that he has ordered be
defied. This claim is mistaken as a matter of constitutional
law, precedent, and common sense.
As already explained, the Constitution vests the House--
rather than the President or Judiciary--with ``the sole Power
of Impeachment.'' That ``sole Power'' includes the
investigatory powers that the House has invoked in serving
subpoenas as part of the current impeachment inquiry. This
Committee therefore concluded in President Nixon's case that it
would frustrate the constitutional plan for the House to depend
entirely on the Judiciary to enforce subpoenas in impeachment
proceedings.\899\ That would risk making the House subservient
to courts in matters where the Constitution gives the House the
final word.\900\ It would also raise complexities in the case
of a President who directed Executive Branch officials to defy
House subpoenas--and then used his pardon power to immunize
them from contempt orders if instructed by the Judiciary to
honor those subpoenas.\901\
---------------------------------------------------------------------------
\899\Committee Report on Nixon Articles of Impeachment (1974) at
210-212.
\900\Id. at 210 (``The Committee concluded that it would be
inappropriate to seek the aid of the courts to enforce its subpoenas
against the President. This conclusion is based on the constitutional
provision vesting the power of impeachment solely in the House of
Representatives and the express denial by the Framers of the
Constitution of any role for the courts in the impeachment process.'').
\901\See id. at 212.
---------------------------------------------------------------------------
To be sure, judicial review may at first blush seem
desirable because ``it would be an independent determination by
an entity with no interest in the proceedings.''\902\ But as
this Committee has noted: ``[T]he impeachment process itself
provides an opportunity for such a determination--initially by
the House in deciding whether to prosecute the Article of
Impeachment, and, ultimately, by the Senate, the tribunal for
an impeachment trial. Neither the Committee nor the House would
be the final judge of the validity of the Committee's
subpoenas. Whether noncompliance with the subpoenas is a ground
for impeachment would ultimately be adjudicated in the
Senate.''\903\
---------------------------------------------------------------------------
\902\Id. at 212.
\903\Id.
---------------------------------------------------------------------------
Consistent with this understanding of the constitutional
plan, the House has never before relied on litigation to compel
witness testimony or the production of documents in a
Presidential impeachment proceeding.\904\ Some members of the
Minority have suggested otherwise, but there is no law or
practice to support such a theory.\905\ As explained above, the
history of House impeachment inquiries teaches a single lesson:
compliance with subpoenas is the rule, defiance the exceedingly
rare (and impeachable) exception. No President has ever issued
a blanket ban on compliance with House subpoenas and challenged
the House to find a way around his unlawful order. Under these
strange and unprecedented circumstances, it is appropriate for
the House to reach its own independent judgment that the
President is obstructing the exercise of its constitutional
impeachment power, rather than seeking judicial review.
---------------------------------------------------------------------------
\904\In President Nixon's case, the Special Prosecutor subpoenaed
certain Oval Office tape recordings and then litigated the President's
failure to comply with the subpoena. See United States v. Nixon, 418
U.S. 683, 686 (1974). The Judiciary Committee did not file suit when
the President failed to comply fully with its own subpoenas.
\905\H. Res. 755, Articles of Impeachment Against President Donald
J. Trump: Markup Before the H. Comm. on the Judiciary, 116th Cong.
(2019) (Statement of Rep. James Sensenbrenner).
---------------------------------------------------------------------------
Indeed, whereas the Minority suggests that recourse to
litigation is required, President Trump has repeatedly argued
that the House is forbidden to seek judicial enforcement of its
subpoenas. In pending lawsuits filed by the House or its
Committees, the Justice Department has raised jurisdictional
arguments on behalf of President Trump that, if accepted, would
hamper or negate the House's ability to enforce subpoenas in
court.\906\ Those arguments are mistaken and have already been
rejected several times,\907\ but reflect the President's
sustained and unwavering view that it is legally impermissible
for the House to obtain judicial relief. Where the President
orders total defiance of House subpoenas and vigorously argues
that the courthouse door is locked, it is clear that he seeks
to obstruct the House in the exercise of its impeachment power.
---------------------------------------------------------------------------
\906\Brief for Defendant-Appellant at 1 47, Comm. on the Judiciary,
U.S. House of Representatives v. Donald F. McGahn II, No. 19-5331 (D.C.
Cir. filed Dec. 9, 2019) (arguing courts lack jurisdiction to
adjudicate subpoena enforcement suits by the House and that the House
is not even injured for purposes of Article III standing when Executive
Branch officials defy subpoenas); Memorandum of Points and Authorities
in Support of Defendants' and Defendants-Intervenors' Motion to
Dismiss, Comm. on Ways and Means, U.S. House of Representatives v.
Dep't of Treasury, No. 19 Civ. 1974 (D.D.C. filed Sept. 6, 2019).
\907\See, e.g., United States v. Am. Tel. & Tel. Co., 551 F.2d 384,
391 (D.C. Cir. 1976) (``the House as a whole has standing to assert its
investigatory power''); McGahn, 2019 WL 6312011 at *16-34 (D.D.C. Nov.
25, 2019) (rejecting DOJ's jurisdictional arguments); Comm. on
Oversight & Gov't Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013)
(same); Miers, 558 F. Supp. 2d at 65-99 (same).
---------------------------------------------------------------------------
This conclusion comports with common sense. The President
is under investigation for soliciting and pressuring a foreign
power to interfere in an election that is less than a year
away. The House has already received compelling evidence of his
misconduct. Waiting any longer would thus be an abdication of
duty--particularly given the extreme implausibility that
litigation would soon bring new evidence to light. Consider
three lawsuits filed by House Committees over the past two
decades seeking to enforce subpoenas against senior Executive
Branch officials:
In Committee on the Judiciary v. Miers, this
Committee sought to enforce a subpoena requiring former White
House Counsel Harriet Miers to give testimony about the
contentious firing of nine United States Attorneys. The
Committee served that subpoena in June 2007, filed suit in
March 2008, and won a favorable district court order in July
2008, but did not receive testimony from Miers until June 2009
due to the entry of a stay by the Court of Appeals and further
negotiations between the parties.\908\
---------------------------------------------------------------------------
\908\See Miers, 558 F. Supp. 2d 53 (D.D.C. July 31, 2008) (holding
Miers was required to testify); 542 F.3d 909 (D.C. Cir. Oct. 6, 2008)
(staying decision pending appeal); Unopposed Motion for Voluntary
Dismissal by Plaintiff at 3, Miers (D.D.C. filed Oct. 22, 2009) (Miers
testified in a transcribed interview in June 2009).
---------------------------------------------------------------------------
In Committee on Oversight and Reform v. Holder,
the Committee on Oversight and Reform (COR) sought to compel
Attorney General Eric Holder to produce documents relating to
Operation Fast and Furious. The committee served that subpoena
in October 2011 and filed suit in August 2012. It then won a
series of orders requiring the production of documents, but the
first such order did not issue until August 2014.\909\
---------------------------------------------------------------------------
\909\The district court rejected DOJ's motion to dismiss in
September 2013, see Holder, 979 F. Supp. 2d 1; ordered production only
of documents for which DOJ did not assert any privileges in August
2014, see 2014 WL 12662665 (D.D.C. Aug. 20, 2014); and did not order
production of additional documents until January 2016, see 156 F. Supp.
3d 101 (D.D.C. Jan. 19, 2016).
---------------------------------------------------------------------------
In Committee on the Judiciary v. McGahn, this
Committee seeks to enforce a subpoena requiring White House
Counsel Donald F. McGahn II to give testimony regarding matters
relating to the Special Counsel's investigation. The Committee
served that subpoena in April 2019, filed suit in August 2019,
and won a favorable district court order in November 2019, but
the Court of Appeals has stayed that ruling and will not hear
oral argument until January 2020.\910\
---------------------------------------------------------------------------
\910\McGahn, 2019 WL 6312011; see id. at *4-6 (describing case
history); see Order, No. 19-5331 (D.C. Cir. Nov. 27, 2019) (entering
``administrative stay'' and scheduling argument in January).
---------------------------------------------------------------------------
Even when the House urges expedition, it usually takes
years--not months--to obtain documents or testimony through
judicial subpoena enforcement proceedings. It would be unwise,
indeed dangerous, to allow Presidents to defy all subpoenas in
an impeachment inquiry and then assert that the House cannot
impeach without exhausting judicial remedies. Particularly in a
case like this one, where the President's misconduct is a
constitutional crime in progress, waiting for the courts is the
practical equivalent of inaction. This Committee will not stand
idly by while the President abuses power by asking and
pressuring foreign powers to corrupt the upcoming election.
4. President Trump Poses a Continuing Threat if Left in Office
Impeachment exists ``not to inflict personal punishment for
past wrongdoing, but rather to protect against future
Presidential misconduct that would endanger democracy and the
rule of law.''\911\ By virtue of the conduct encompassed by
Article II, President Trump ``has demonstrated that he will
remain a threat to the Constitution if allowed to remain in
office, and has acted in a manner grossly incompatible with
self-governance and the rule of law.''\912\ That is true in at
least three respects: first, he has debased the impeachment
remedy; second, he has broadly argued that no government entity
in the United States has the legal power to investigate his
official misconduct except on terms of his choosing; and third,
his obstruction reflects a pattern of misconduct.
---------------------------------------------------------------------------
\911\Constitutional Grounds for Impeachment (2019) at 10.
\912\H. Res. 755, 116th Cong. Art. II. (2019).
---------------------------------------------------------------------------
a. Debasement of the Impeachment Remedy
The impeachment power exists for a reason. It is the
Framers' final and most definitive answer to a fundamental
question: ``Shall any man be above Justice?''\913\ Urging the
necessity of allowing impeachments, Elbridge T. Gerry thus
emphasized: ``A good magistrate will not fear them. A bad one
ought to be kept in fear of them.''\914\ In Federalist Papers
No. 69, Alexander Hamilton affirmed that the Impeachment Clause
separates Presidents from kings and khans.\915\ Where a
President abuses his power, betrays the public through foreign
entanglements, or corrupts his office or elections, impeachment
is our Nation's last line of defense against conduct ``fatal to
the Republic.''\916\ It was partly by virtue of this limit on
malfeasance that the Framers entrusted Presidents with sweeping
executive authority. A President who seeks to sabotage the
impeachment power thus disorders our system of checks and
balances, tilting it toward executive tyranny.
---------------------------------------------------------------------------
\913\2 Farrand, Records of the Federal Convention at 65 (George
Mason).
\914\Id. at 66 (Elbridge Gerry).
\915\The Federalist No. 69 at 444-45 (Alexander Hamilton) (Benjamin
Fletcher Wright ed. 1961).
\916\2 Farrand, Records of the Federal Convention at 66 (James
Madison).
---------------------------------------------------------------------------
That is what President Trump did here. The point bears
repetition: his conduct is unlike anything this Nation has ever
seen. Other Presidents have disapproved of impeachments. Other
Presidents have criticized the House and doubted its motives.
Other Presidents have insisted they did nothing wrong. But no
President before this one has declared himself and his entire
branch of government exempt from subpoenas issued by the House
under its ``sole Power of Impeachment.'' No President has made
compliance with his every demand a condition of even
considering whether to honor subpoenas. No President has
directed his senior officials to violate their own legal
obligations because an impeachment was ``illegitimate.''
Indeed, every President in our Nation's history but one has
done the opposite--and that President, Richard M. Nixon, faced
an article of impeachment in this Committee for withholding key
evidence from the House.
b. Denial of Any Mechanism of Legal Oversight or Accountability
Approval of the Second Article of Impeachment is further
supported by President Trump's apparent view that nobody in the
United States government has the lawful authority to
investigate any misconduct in which he engages. This view is
evident in the legal positions he has taken while in office. To
start, President Trump maintains that he is completely immune
from criminal indictment and prosecution while serving as
President.\917\ He also claims that he cannot be investigated--
under any circumstance--by state or federal law enforcement
while in office.\918\ He asserts the authority to terminate and
control federal law enforcement investigations for any reason
(or none at all), including when he is the subject of an
investigation.\919\ He insists that unfounded doctrines, such
as absolute immunity, preclude testimony by many current and
former officials who might shed light on any Presidential
abuses.\920\ He defies binding Congressional subpoenas on
topics of national importance based on his own determination
that they lack a legitimate purpose,\921\ and then he sues to
block third parties from complying with such subpoenas.\922\
Even as he pursues his own interests in court, his
administration simultaneously argues that Congress is barred
from obtaining judicial enforcement when Executive Branch
officials disregard its subpoenas.\923\
---------------------------------------------------------------------------
\917\Memorandum of Law in Support of Plaintiff's Emergency Motion
For a Temporary Restraining Order and a Preliminary Injunction, Trump
v. Vance, Jr. No. 19 Civ. 08694, 2019 WL 5557333 (S.D.N.Y Sept. 20,
2019) (``Under Article II, the Supremacy Clause, and the structure of
our Constitution, the President of the United States cannot be `subject
to the criminal process' while he is in office.''); Ann E. Marimow &
Jonathan O'Connell, In Court Hearing, Trump Lawyer Argues a Sitting
President Would be Immune from Prosecution Even If He Were to Shoot
Someone, Wash. Post, Oct. 23, 2019.
\918\Trump v. Vance, 941 F.3d 631, 640 (2d Cir. 2019) (``The
President relies on what he described at oral argument as `temporary
absolute presidential immunity'--he argues that he is absolutely immune
from all stages of state criminal process while in office, including
pre-indictment investigation . . . .'').
\919\Letter from John M. Dowd & Jay A. Sekulow to Robert S.
Mueller, III (Jan. 29, 2018) (``It remains our position that the
President's actions here, by virtue of his position as the chief law
enforcement officer, could neither constitutionally nor legally
constitute obstruction because that would amount to him obstructing
himself, and that he could, if he wished, terminate the inquiry, or
even exercise his power to pardon if he so desired.'').
\920\McGahn, 2019 WL 6312011 at *34 (``DOJ asserts that current and
former senior-level presidential aides have `absolute testimonial
immunity' from compelled congressional process, as a matter of law;
therefore, if the President invokes `executive privilege' over a
current or former aides' testimony--as he has done with respect to
McGahn--that aide need not accede to the lawful demands of
Congress.''). See also, e.g., Ukraine Report at 230 (President Trump
ordered Acting Chief of Staff Mick Mulvaney to defy a subpoena for his
testimony on grounds of ``absolute immunity''); id. at 231 (same, with
respect to White House advisor Robert Blair); id. at 232 (same, with
respect to Deputy Counsel to the President for National Security
Affairs John Eisenberg).
\921\See Oct. 8 Cipollone Letter at 2. See also, e.g.,
Congressional Committee's Request for the President's Tax Returns, 43
Op. O.L.C.__, 2019 WL 2563046 (supporting Department of the Treasury's
decision to override plain statutory text requiring disclosure of the
President's tax returns based on purported absence of a ``legitimate
legislative purpose'').
\922\See, e.g., Mazars, 940 F.3d at 717; Trump v. Deutsche Bank
AG,--F.3d--, 2019 WL 6482561 at *2 (2d Cir. Dec. 3, 2019).
\923\McGahn, 2019 WL 6312011, at *26 (``Here, as in Miers, DOJ
attempts to shoehorn its emasculating effort to keep House committees
from turning to the courts as a means of vindicating their
constitutional interests into various categories of established legal
arguments, some of which overlap substantially with jurisdictional
contentions that the Court has already considered and rejected.'').
Compare Memorandum of Points and Authorities in Support of Defendants'
and Defendant-Intervenors' Motion to Dismiss at 13, Comm. on Ways and
Means, U.S. House of Representatives v. Dep't of Treasury, No. 19 Civ.
01974 (D.D.C. filed Sept. 6, 2019) (warning against ``[t]he exertion of
Federal judicial power to declare victors in inter-branch disputes of
this nature''), with Brief for the United States as Amicus Curiae at 2,
Trump v. Deutsche Bank, No. 19-1540 (2d Cir. filed Aug. 19, 2019)
(encouraging the court to ``engage in a searching evaluation of
subpoenas directed at the President'').
---------------------------------------------------------------------------
Perhaps most remarkably, President Trump claims that the
House cannot investigate his misconduct outside of an
impeachment inquiry\924\--but also claims that it cannot
investigate his misconduct as part of an impeachment inquiry if
he deems it ``illegitimate.''\925\ And an inquiry ranks as
``illegitimate,'' in President Trump's view, if he thinks he
did nothing wrong, doubts the motives of the House, or prefers
a different set of Committee procedures. It is not hyperbole to
describe this reasoning as better suited to George Orwell or
Franz Kafka than the Office of the President.
---------------------------------------------------------------------------
\924\Mazars, 940 F.3d at 750 (quoting DOJ's brief, ``The House's
impeachment power is an express authority whose exercise does not
require a connection to valid legislation. But the Committee has
asserted neither jurisdiction over, nor an objective of pursuing
impeachment.'').
\925\Oct. 8 Cipollone Letter at 8 (``For the foregoing reasons, the
President cannot allow your constitutionally illegitimate proceedings
to distract him and those in the Executive Branch from their work on
behalf of the American people.'').
---------------------------------------------------------------------------
Viewed in their totality, President Trump's positions
amount to an insistence that he is above the law; that there is
no governmental entity in the United States outside his direct
control that can investigate him for official misconduct and
hold him accountable for any wrongdoing. Even the House,
wielding one of the mightiest powers in the Constitution--a
power that exists specifically to address a rogue President--
has no authority at all to investigate his official acts if he
decides otherwise.
That is not our law. It never has been. The President is a
constitutional officer. Unlike a despot, he answers to a higher
legal authority. It is disconcerting enough that the President
has attacked and resisted the House's explicit oversight
authority in unprecedented ways. But it is worse, much worse,
that he now claims the further prerogative to ignore a House
impeachment inquiry.\926\ The continuing threat posed by
President Trump's conduct, as set forth in the Second Article
of Impeachment, is thus exacerbated by his public and legal
assertions that it is illegitimate and unlawful for anyone to
investigate him for abuse of office except on his own terms.
---------------------------------------------------------------------------
\926\The President has accompanied this conduct with a series of
public statements advocating the view that it is illegitimate for the
House to investigate him. See Ukraine Report at 28-29 (``He has
publicly and repeatedly rejected the authority of Congress to conduct
oversight of his actions and has directly challenged the authority of
the House to conduct an impeachment inquiry into his actions regarding
Ukraine . . . . [President Trump's] rhetorical attacks appeared
intended not just to dispute public reports of his misconduct, but to
persuade the American public that the House lacks authority to
investigate the President.'').
---------------------------------------------------------------------------
c. Consistency with Previous Conduct
The Second Article of Impeachment impeaches President Trump
for obstructing Congress with respect to the House impeachment
inquiry relating to Ukraine. Yet, as noted in that Article,
President Trump's obstruction of that investigation is
``consistent with [his] previous efforts to undermine United
States Government investigations into foreign interference in
United States elections.''\927\ An understanding of those
previous efforts, and the pattern of misconduct they represent,
sheds light on the particular conduct set forth in that Article
as sufficient grounds for the impeachment of President
Trump.\928\
---------------------------------------------------------------------------
\927\H. Res. 755, 116th Cong. Art. II (2019).
\928\This Committee has undertaken an investigation relating to the
Special Counsel's report. That includes inquiring into President
Trump's obstruction of the Special Counsel, as well as a review of
other aspects of the Special Counsel's underlying work that the
President obstructed. As part of this investigation, the Committee has
sought to compel testimony by former White House Counsel Donald F.
McGahn II, and to review certain grand jury materials relating to the
Special Counsel's report. Should the Committee obtain the information,
it would be utilized, among other purposes, in a Senate trial on these
articles of impeachment, if any. The Committee, moreover, has continued
and will continue those investigations consistent with its own prior
statements respecting their importance and purposes.
---------------------------------------------------------------------------
These previous efforts include, but are not limited to,
President Trump's endeavor to impede the Special Counsel's
investigation into Russian interference with the 2016 United
States Presidential election, as well as President Trump's
sustained efforts to obstruct the Special Counsel after
learning that he was under investigation for obstruction of
justice.\929\ There can be no serious doubt that the Special
Counsel's investigation addressed an issue of extraordinary
importance to our national security and democracy. As the
Special Counsel concluded, ``[t]he Russian government
interfered in the 2016 presidential election in sweeping and
systematic fashion.''\930\ This assessment accords with the
consensus view of the United States intelligence
community.\931\
---------------------------------------------------------------------------
\929\See generally Special Counsel Robert S. Mueller, III, Report
On The Investigation Into Russian Interference In The 2016 Presidential
Election, Vols. I and II (March 2019) (hereinafter, ``Mueller
Report'').
\930\Mueller Report Vol. I at 1.
\931\Ukraine Report at 13 (``[T]he U.S. Intelligence Community had
unanimously determined that Russia, not Ukraine, interfered in the 2016
election to help the candidacy of Donald Trump.'').
---------------------------------------------------------------------------
Ultimately, although the Special Counsel ``did not
establish that members of the Trump Campaign conspired or
coordinated with the Russian government in its election
interference activities,'' he did conclude 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.''\932\ Yet there is no
indication in the Special Counsel's report that anyone from the
Trump Campaign, including President Trump, reported to law
enforcement any contacts or offers of foreign assistance.
Instead, President Trump openly welcomed and invited Russian
interference in the election.\933\
---------------------------------------------------------------------------
\932\Mueller Report Vol. I at 5.
\933\See generally Mueller Report Vol. II.
---------------------------------------------------------------------------
Rather than aid the Special Counsel's investigation into
Russian interference, President Trump sought to thwart it--and
used the powers of his office as part of that scheme.\934\ Most
notably, after learning that he was himself under
investigation, President Trump among other things ordered the
firing of the Special Counsel,\935\ sought to curtail the
Special Counsel's investigation in a manner exempting his own
prior conduct,\936\ instructed the White House Counsel to
create a false record and make false public statements,\937\
and tampered with at least two key witnesses in the Special
Counsel's investigation.\938\ Based on the Special Counsel's
report, these acts were obstructive in nature, and there is
evidence strongly supporting that President Trump acted with
the improper (and criminal) purpose of avoiding potential
liability and concealing information that he viewed as
personally and politically damaging.\939\
---------------------------------------------------------------------------
\934\See id.
\935\See id. at 77-90.
\936\See id. at 90-98.
\937\See id. at 113-20.
\938\See id. at 120-56.
\939\See id. at 87-90, 97-98, 118-20, 131-33, 153-56.
---------------------------------------------------------------------------
The pattern is as unmistakable as it is unnerving. There,
President Trump welcomed and invited a foreign nation to
interfere in a United States Presidential election to his
advantage; here, President Trump solicited and pressured a
foreign nation to do so. There, Executive Branch law
enforcement investigated; here, the House impeachment inquiry
investigated. There, President Trump used the powers of his
office to obstruct and seek to fire the Special Counsel; here,
President Trump used the powers of his office to obstruct and
embargo the House impeachment inquiry. There, while obstructing
investigators, the President stated that he remained free to
invite foreign interference in our elections; here, while
obstructing investigators, President Trump in fact invited
additional foreign interference. Indeed, President Trump placed
his fateful July 25 call to President Zelensky just one day
after the Special Counsel testified in Congress about his
findings.
Viewed in this frame, it is apparent that President Trump
sees no barrier to inviting (or inducing) foreign interference
in our elections, using the powers of his office to obstruct
anyone who dares to investigate such misconduct, and engaging
in the same conduct with impunity all over again. Although the
Second Article of Impeachment focuses on President Trump's
categorical and indiscriminate obstruction of the House
impeachment inquiry, the consistency of this obstruction with
his broader pattern of misconduct is relevant and
striking.\940\
---------------------------------------------------------------------------
\940\The same point applies to President Trump's unjustified and
improper obstruction of this Committee's efforts to investigate the
evidence bearing on the question of whether President Trump committed
obstruction of justice in his efforts to undermine the Special
Counsel's investigation. See, e.g., Nadler Statement on White House
Obstruction of Dearborn, Porter & Lewandowski Testimony, House
Committee on the Judiciary, Sept. 16, 2019 (addressing White House
obstruction of witness testimony on grounds of ``absolute immunity'').
Of course, several matters relating to that issue are currently pending
before the courts. See, e.g., McGahn, 2019 WL 6312011, at *28 (D.D.C.
Nov. 25, 2019), appeal docketed, No. 19-5331 (D.C. Cir. Nov. 26, 2019).
---------------------------------------------------------------------------
IV. Conclusion
As the Investigating Committees concluded, ``it would be
hard to imagine a stronger or more complete case of obstruction
than that demonstrated by the President since the [impeachment]
inquiry began.''\941\ In the history of our Republic, no
President has obstructed Congress like President Trump. If
President Nixon's obstruction of Congress raised a slippery
slope concern, we now find ourselves at the bottom of the
slope, surveying the damage to our Constitution.
---------------------------------------------------------------------------
\941\Ukraine Report at 9.
---------------------------------------------------------------------------
That damage is extraordinary. As explained above, and as
set forth in Article II, President Trump has ``sought to
arrogate to himself the right to determine the propriety,
scope, and nature of an impeachment inquiry into his own
conduct, as well as the unilateral prerogative to deny any and
all information to the House of Representatives in the exercise
of its `sole Power of Impeachment.'''\942\ This abuse of the
Presidential office, moreover, ``served to cover up the
President's own repeated misconduct and to seize and control
the power of impeachment--and thus to nullify a vital
constitutional safeguard vested solely in the House of
Representatives.''\943\ If President Trump is left unchecked,
we will send an alarming message to future Presidents.
---------------------------------------------------------------------------
\942\H. Res. 755, 116th Cong. Art. II (2019).
\943\Id.
---------------------------------------------------------------------------
In word and deed, President Trump has sought to write the
Impeachment Clause out of the Constitution. If his excuses for
that conduct are accepted, then every future President can
choose to ignore House subpoenas, and a bulwark against tyranny
will be undone. This time, courageous and patriotic public
servants defied the President's direction and offered testimony
about his corrupt solicitation and inducement of foreign
interference in our elections. Next time, we may not be so
fortunate, and a President may perpetrate abuses that remain
unknown or unprovable. That is exactly what the Framers feared
most as they designed the Office of the President. It is what
they warned against in their deliberations, and what they
sought to prevent by authorizing impeachments. We are the
inheritors of that legacy--of a Republic, if we can keep it.
Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress and pursuant to H. Res. 660, the following
hearings were used to develop H. Res. 755:
1. ``The Impeachment Inquiry into President Donald J.
Trump: Constitutional Grounds for Presidential Impeachment,''
held before the Judiciary Committee on December 4, 2019. During
this hearing, the Committee heard testimony from: Noah Feldman,
Felix Frankfurter Professor of Law and Director, Julis-
Rabinowitz Program on Jewish and Israeli Law at Harvard Law
School; Pamela S. Karlan, Kenneth and Harle Montgomery
Professor of Public Interest Law and Co-Director, Supreme Court
Litigation Clinic at Stanford Law School; Michael Gerhardt,
Burton Craige Distinguished Professor of Jurisprudence at the
University of North Carolina School of Law; and Jonathan
Turley, J.B. and Maurice C. Shapiro Professor of Public
Interest Law at the George Washington University Law School. In
this hearing, the witnesses testified on the permissible
grounds for presidential impeachment.
2. ``The Impeachment Inquiry into President Donald J.
Trump: Presentations from the House Permanent Select Committee
on Intelligence and House Judiciary Committee,'' held before
the Judiciary Committee on December 9, 2019. During this
hearing, the Committee heard presentations from: Barry Berke,
Majority Counsel for the House Committee on the Judiciary;
Daniel Goldman, Majority Counsel for the House Permanent Select
Committee on Intelligence; and Stephen Castor Minority Counsel
for the House Committee on the Judiciary and the House
Permanent Select Committee on Intelligence. Pursuant to H. Res.
660, in this hearing, Majority and Minority Counsels for the
House Committee on the Judiciary presented opening statements,
followed by presentations of evidence from Majority and
Minority Counsels for the House Permanent Select Committee on
Intelligence.
Committee Consideration
On December 11, 12, and 13, 2019, the Committee met in open
session to consider H. Res. 755. On December 13, the Committee
ordered the resolution favorably reported to the House with an
amendment. Pursuant to clause 5 of rule XVI, the vote on
reporting the resolution was divided into separate votes on the
articles. The Committee approved Article I (abuse of power) by
a rollcall vote of 23 to 17 and it approved Article II
(obstruction of Congress) by a rollcall vote of 23 to 17, in
each case a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration H. Res. 755:
1. A motion by Ms. Lofgren to lay on the table Mr. Collins'
appeal of the ruling of the chair that the Committee was not
required to hold a minority hearing day before considering
articles of impeachment, was agreed to by a vote of 23 to 17.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
2. An amendment by Mr. Jordan to strike article I from the
resolution, was defeated by a rollcall vote of 17 to 23.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
3. An amendment by Mr. Gaetz to replace a reference to the
investigation into Joseph R. Biden with Burisma and Hunter
Biden, was defeated by a rollcall vote of 17 to 23.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
4. An amendment by Mr. Biggs to insert a section asserting
foreign aid was released after President Zelensky signed anti-
corruption measures into law, was defeated by a rollcall vote
of 17 to 23.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
5. An amendment by Mr. Reschenthaler to strike article II
from the resolution, was defeated by a rollcall vote of 17 to
23.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
6. An amendment by Mr. Jordan to strike language asserting
President Trump's conduct has demonstrated that he warrants
``impeachment and trial, removal from office, and
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States,'' was defeated by a rollcall
vote of 17 to 23.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
7. Upon demand that the vote to report the resolution, as
amended, favorably to the House be divided into two
propositions pursuant clause 5 of Rule XVI, Article I of the
resolution (abuse of power) was agreed to by a rollcall vote of
23 to 17.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
8. Upon demand that the vote to report the resolution, as
amended, favorably to the House be divided into two
propositions pursuant clause 5 of Rule XVI, Article II of the
resolution (obstruction of Congress) was agreed to by a
rollcall vote of 23 to 17.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974 and with respect to requirements of clause
(3)(c)(3) of rule XIII of the Rules of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, are inapplicable because this resolution does not
provide new budgetary authority or increased tax expenditures.
Additionally, the Committee believes that the resolution will
have no budget effect.
Duplication of Federal Programs
No provision of H. Res. 755 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H. Res.
755 recommends articles of impeachment for President Donald J.
Trump.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H. Res. 755 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Dissenting Views
CONTENTS
Page
I. Introduction....................................................181
II. Procedural Background...........................................183
A. Impeachment Proceedings Without Authorization......... 183
B. The Bifurcation of Impeachment Inquiry Proceedings
Under H. Res. 660.................................... 183
C. Committee Proceedings Under H. Res. 660............... 184
1. Failure to Schedule a Minority Hearing Day.......... 184
2. Staff Presentation.................................. 185
3. Rejection of All Republican Witness Requests........ 185
III.Factual Background..............................................186
IV. Article I Fails to Establish an Impeachable Offense.............187
A. Impeachment in the House of Representatives Requires
Clear and Convincing Evidence of Specific Impeachable
Conduct. The Majority Has Not Met Its Burden......... 188
B. Abuse of Power Allegations Are Overbroad and Fail to
Allege Specific Impeachable Conduct.................. 189
1. Claims About the 2020 Election are Hyperbolic and
Misleading......................................... 190
2. Prior Presidential Impeachments Were All Based on
Criminality........................................ 192
3. This is the First Presidential Impeachment Where the
Primary Allegations Have Not Been Proven........... 192
C. The Majority Fails to Explain Why Asking About Hunter
Biden's Role on Burisma Board of Directors is a High
Crime or Misdemeanor................................. 194
V. Article II Fails to Establish an Impeachable Offense............195
A. Obstruction of Congress Does Not Constitute a High
Crime or High Misdemeanor While Further Recourse is
Available............................................ 196
B. An Impeachment Inquiry Does Not Elevate the House of
Representatives Above Fundamental Privileges......... 198
C. The Majority's Failure to Conduct an Impeachment
Inquiry in Accordance with Precedent has Led to Ex
Post Facto Characterizations of that Inquiry......... 199
D. Assertions of Privilege by Previous Administrations
Never Merited Impeachment............................ 200
VI. Conclusion......................................................200
I. Introduction\1\
---------------------------------------------------------------------------
\1\As an initial matter, the Minority wishes to note for the record
its unwavering commitment to security for the people and the nation of
Ukraine. Throughout this process, the Minority has been cast variously
as against foreign aid, pro-Russia, or unsympathetic to the plight of
Ukrainians, who face unimaginable hardship in the face of Russian
aggression. To the Ukrainian people, we say we categorically reject
these characterizations and apologize that the Ukrainian democracy has
been thrust into the spotlight besmirching both of our leaders. We
congratulate you on your election of President Zelensky, whose
commitment to fighting corruption and the Russian threat are values all
decent Americans share with you.
---------------------------------------------------------------------------
Impeachment of an American president demands the accuser
prioritize legitimacy and thoroughness over expediency. In the
impeachment inquiries for Presidents Johnson, Nixon, and
Clinton, the facts had been established and agreed upon by the
time Articles of Impeachment were considered. Due to years-long
investigations into the allegations against Nixon and Clinton,
the only question to answer was what Congress would do to
confront the findings.
The evidence uncovered in this impeachment, by contrast,
shows the case is not only weak but dangerously lowers the bar
for future impeachments. The record put forth by the Majority
is based on inferences built upon presumptions and hearsay. In
short, the Majority has failed to make a credible, factually-
based allegation against this president that merits
impeachment.\2\
---------------------------------------------------------------------------
\2\See Jonathan Turley, ``The Impeachment Inquiry Into President
Donald J. Trump: The Constitutional Basis For Presidential
Impeachment,'' House Committee on the Judiciary, Written Statement,
Dec. 4, 2019, at 4. (``I am concerned about lowering impeachment
standards to fit a paucity of evidence and an abundance of anger. I
believe this impeachment not only fails the standard of past
impeachments but would create a dangerous precedent for future
impeachments.'').
---------------------------------------------------------------------------
By deciding to pursue impeachment first and build a case
second, the Majority has created a challenge for itself. In the
face of new information that exculpates or exonerates the
President, the Majority must choose: either accept that the
impeachment inquiry's findings do not merit impeachment and
face the political consequences or, alternatively, ignore those
facts. Regrettably, the Majority has chosen the latter.
As detailed in Section III below, since the delivery of the
Intelligence Committee's Reports (both Majority and Minority),
new developments have emerged that further undermine the case
for impeachment. The Majority's response to new exculpatory
facts, as it has been since the day the President was elected,
is to ignore them and press on.
The Majority has not only ignored exculpatory evidence but
proclaims the facts are ``uncontested.'' The facts are
contested, and, in many areas, the Majority's claims are
directly contradicted by the evidence. That assertion is
further contradicted by the Articles of Impeachment themselves.
Not one of the criminal accusations leveled at the President
over the past year--including bribery, extortion, collusion/
conspiracy with foreign enemies, or obstruction of justice--has
found a place in the Articles. Some of these accusations are,
in fact, holdovers from an earlier disingenuous attempt by the
Majority to weaponize the Russia collusion investigations for
political gain. The Majority has not made the case for
impeachment in part due to its decision to impeach being rooted
less in a concern for the nation than the debasement of the
President.
History will record the impeachment of President Donald J.
Trump as a signal that even the gravest constitutional remedy
is not beyond political exploitation. The Articles of
Impeachment alone, drafted by the Majority in haste to meet a
self-imposed December deadline, underscore the Majority's
anemic impeachment case. The Majority's actions are
unprecedented, unjustifiable, and will only dilute the
significance of the dire recourse that is impeachment. The
ramifications for future presidents are not difficult to
surmise. If partisan passions are not restrained, the House of
Representatives will be thrown into an endless cycle of
impeachment, foregoing its duty to legislate and usurping the
place of the American people in electing their president.
II. Procedural Background
Apart from those factual and evidentiary shortcomings
referenced above, the Majority's dedication to impeaching the
President at any cost was well-reflected by their willful
disregard of House Rules and congressional precedent.
Throughout the first session of the 116th Congress, Chairman
Jerrold Nadler repeatedly violated any Rules that
inconvenienced the Committee's ardent attempts to impeach the
President. The Committee's impeachment-related activities
during the first session of the 116th Congress should be viewed
as a cautionary tale.
In 1974, Chairman Peter Rodino approached the question of
presidential impeachment solemnly and with an eye towards
fairness and thoroughness. He worked diligently to ensure that
such a country-altering process was conducted with not only
bipartisan support, but with the support of the American
people. What has occurred in the halls of Congress over the
final months of 2019 has been a sharp and unfortunate departure
from Chairman Rodino's legacy. The institutional damage done to
the House of Representatives by the Majority throughout this
impeachment ``process'' can never be repeated.
A. IMPEACHMENT PROCEEDINGS WITHOUT AUTHORIZATION
For most of 2019, the House Committee on the Judiciary (the
``Committee'' or the ``Judiciary Committee'') conducted various
``impeachment'' hearings outside the scope of its authority
under rule X of the Rules of the House. The Chairman's refusal
to seek authorization by a vote of the full House of
Representatives--as was done in 1974 and 1998--denied every
Member of the House of Representatives the opportunity to
determine whether such proceedings should commence.
Not only did the Majority fail to seek authorization from
the House of Representatives, they insisted they did not need
it. On multiple occasions, Speaker of the House Nancy Pelosi
and the Chairman denied that a vote of the full House of
Representatives was necessary prior to conducting an
impeachment inquiry, arguing that House committees could
conduct oversight pursuant to rule X of the Rules of the
House.\3\ This is a manipulative reading of the Rules. Rule X
prescribes--in list format--the specific topics over which each
House committee may exercise jurisdiction. Impeachment is not
listed in rule X.\4\ To add--even temporarily--to a committee's
jurisdiction, the full House of Representatives must agree.\5\
---------------------------------------------------------------------------
\3\Nadler: These are `formal impeachment proceedings', CNN (Aug. 8,
2019); Susan Cornwall, U.S. House Will Hold Off on Vote to Authorize
Impeachment Probe: Pelosi, Reuters, (Oct. 15, 2019).; Lindsey
McPherson, McCarthy Asks Pelosi to Suspend Impeachment Inquiry Until
She Defines Procedures, RollCall, (Oct. 3, 2019).
\4\Rules of the House of Representative, Rule X.
\5\Deschler-Brown's Precedents, Volume 3, Chapter 10. 94th Cong.
2042 (1994).
---------------------------------------------------------------------------
B. THE BIFURCATION OF IMPEACHMENT INQUIRY PROCEEDINGS UNDER H. RES. 660
The adoption of H. Res. 660 diverged substantially, and
without justification, from prior authorizations agreed to by
the House of Representatives in 1974 and 1998. Most notably, it
bifurcated impeachment proceedings, allowing the House
Permanent Select Committee on Intelligence (the ``Intelligence
Committee'') to usurp what has traditionally been the
Committee's investigative role in presidential impeachment. To
be clear, Members of the House of Representatives will soon
have to vote on Articles of Impeachment reported by a Judiciary
Committee that has barely reviewed the alleged evidence. After
the Intelligence Committee ``investigation,'' the Judiciary
Committee held only one hearing and one presentation from staff
on the impeachment inquiry. Not only was the Judiciary
Committee almost completely shut out from the impeachment
inquiry, it turned down the opportunity to examine all of the
evidence collected by the Intelligence Committee or to hear
testimony from even one fact witness.
The Majority allowed the entire investigative portion to
take place in a committee that denied Minority-requested
witnesses, would not allow the participation of the President's
counsel to question fact witnesses, and censored Minority
questions.\6\ After the Intelligence Committee's one-sided
investigation, the Judiciary Committee was unable to conduct a
full review, leaving the American people in the dark.
---------------------------------------------------------------------------
\6\Valerie Richardson, Adam Schiff Rejects Hunter Biden,
`Whistleblower' as Impeachment Witnesses, Washington Times (Nov. 10,
2019); Bob Fredericks & Aaron Feis, Adam Schiff Blocks Republicans'
Attempts to Question Impeachment Witnesses, New York Post (Nov. 19,
2019).
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C. COMMITTEE PROCEEDINGS UNDER H. RES. 660
1. Failure to Schedule a Minority Hearing Day
The Minority has a right to a minority day of hearings
under clause 2(j)(1) of Rule XI of the Rules of the House.\7\
The Rules set forth that a minority day of hearings must occur
on the ``measure or matter'' under consideration at the time of
the demand. On December 4, 2019, the Committee held a hearing
titled ``The Impeachment Inquiry into President Donald J.
Trump: Constitutional Grounds for Presidential
Impeachment.''\8\ It was during that hearing that a demand for
a minority day of hearings was made. In fact, a demand for a
minority day of hearings was made less than two minutes after
the start of the hearing, which was the first Committee hearing
designated pursuant to H. Res. 660.\9\ Given the issue under
consideration at the December 4 hearing, the Rules would
require that the Chairman schedule a minority day of hearings
on the impeachment inquiry into President Donald J. Trump, the
matter under consideration at the time of the demand. Once the
articles of impeachment were considered and adopted, the
impeachment inquiry ended, and the necessity of the minority
hearing day dissipated.
---------------------------------------------------------------------------
\7\Rules of the House of Representative, Clause (2)(j)(1), rule XI.
\8\The Impeachment Inquiry into President Donald J. Trump:
Constitutional Grounds for Presidential Impeachment, Hearing Before the
H. Comm. On the Judiciary, 116th Cong. (2019).
\9\Id. at 4.
---------------------------------------------------------------------------
After the Chairman failed to acknowledge his obligation to
schedule such a hearing during the December 4 hearing, Ranking
Member Doug Collins sent a letter the following day reminding
the Chairman that the requested minority hearing day must be
scheduled before Committee consideration of any articles of
impeachment.
The issue was again raised at the staff presentation
hearing on December 9, 2019.\10\ Each time the issue was raised
directly to the Chairman, he said that he was still considering
the request.\11\ At the markup of articles of impeachment, a
point of order was made against consideration of the articles
for the Chairman's failure to schedule a minority hearing day.
Instead of acknowledging his violation of the Rules, the
Chairman ruled against the point of order, depriving Minority
Members of their right to a minority day of hearings.
---------------------------------------------------------------------------
\10\The Impeachment Inquiry into President Donald J. Trump:
Presentations from the House Permanent Select Committee on Intelligence
and House Judiciary Committee, Hearing Before the H. Comm. on the
Judiciary, 116th Cong. 12 (2019).
\11\The Impeachment Inquiry into President Donald J. Trump:
Presentations from the House Permanent Select Committee on Intelligence
and House Judiciary Committee, Hearing Before the H. Comm. on the
Judiciary, 116th Cong. 13 (2019).
---------------------------------------------------------------------------
Such a blatant, intentional, and impactful violation of the
Rules during consideration of a matter as course-altering as
articles of impeachment has never occurred in the history of
the House of Representatives.
2. Staff Presentation
The staff ``presentation'' hearing held on Monday, December
9, 2019, could only be described as a bizarre, made-for-TV
divergence from the precedent set during the impeachments of
Presidents Nixon and Clinton. Staff presentations in 1974 and
1998 occurred as a means to assist Members of the Committee in
sorting through dense volumes of evidence. The December 9
hearing was set up by the Majority as a means to functionally
replace the participation of Members of Congress with paid,
outside consultants, not to advise them.
To begin, an outside consultant to the Majority, Barry
Berke, was permitted to make a presentation to the Committee
without being sworn in or questioned by Members of the
Committee.\12\ He was later permitted forty-five minutes to
cross-examine the Minority staff member (after said staffer had
been sworn in) that had earlier presented the counter argument
to his ``presentation,'' which was in fact just thirty minutes
of opinion.
---------------------------------------------------------------------------
\12\Id. at 74-5.
---------------------------------------------------------------------------
This aspect of the hearing comported with the procedures of
H. Res. 660, but we question any application of the Rules that
would permit a private consultant to use Committee proceedings
to cross examine a career staff member for forty-five minutes
but only allow the majority of Members on the Committee five
minutes to ask questions.
Future staff presentations of evidence during impeachment
inquiries should be just that--presentations of evidence
compiled and reviewed by the Committee. Instead, this Majority
chose to prioritize TV ratings over meaningful Member
participation and a greater understanding of the facts.
3. Rejection of All Republican Witness Requests
H. Res. 660 provided that the Ranking Member could request
that the Chairman subpoena witnesses. While H. Res. 660
provides no time constraints on such a request, the Chairman
sent a letter requiring that the Ranking Member submit any such
requests by December 6, 2019.\13\ Despite the unjustifiably
short time constraint, the Ranking Member sent a list of
witnesses to the Chairman by the deadline. On Monday December
9, the Chairman rejected all of the Ranking Member's requests
without justification beyond the Chairman's unilateral
determination that the witnesses were not relevant.\14\
Considering that Articles of Impeachment were announced the
very next morning, it is clear that the Chairman had no
intention to provide the Minority Members with an opportunity
to examine additional evidence or call additional witnesses.
---------------------------------------------------------------------------
\13\Letter from the Honorable Jerrold Nadler, Chairman, H. Comm. on
the Judiciary, to the Honorable Doug Collins, Ranking Member, H. Comm.
on the Judiciary (Nov. 29, 2019).
\14\Letter from the Honorable Jerrold Nadler, Chairman, H. Comm. on
the Judiciary, to the Honorable Doug Collins, Ranking Member, H. Comm.
on the Judiciary (Dec. 9, 2019).
---------------------------------------------------------------------------
III. Factual Background
From a substantive perspective, despite the Minority's
efforts,\15\ this Committee invited no fact witnesses to
testify during this impeachment inquiry. Instead, it held one
hearing with a panel of four academics, and one presentation
with a panel of Congressional staffers.
---------------------------------------------------------------------------
\15\See, e.g., Letter from the Honorable Doug Collins, Ranking
Member, H. Comm. on the Judiciary, to the Honorable Jerrold Nadler,
Chairman, H. Comm. on the Judiciary (December 6, 2019).
---------------------------------------------------------------------------
Rather than conduct its own investigation, this Committee
relied on the investigation conducted by the Intelligence
Committee. The Intelligence Committee Majority produced a
report. However, the Intelligence Committee's Minority Staff
Report is the more complete document, describing in significant
detail the evidentiary record.\16\ The Intelligence Committee
Minority Staff Report is incorporated into these Minority Views
and attached as Appendix A. As that Minority Report shows, the
Majority does not have evidence to support the allegations in
the Articles of Impeachment.\17\
---------------------------------------------------------------------------
\16\See Appendix A, Report of Evidence in the Democrats'
Impeachment Inquiry in the House of Representatives (``Intel. Comm.
Minority Report'') (Dec. 2, 2019).
\17\Id.
---------------------------------------------------------------------------
Since the conclusion of the Intelligence Committee's
investigation and the provision of its reports, significant new
facts have come to light that further contradict the Majority's
primary allegation that the President conditioned U.S. security
assistance on the initiation of Ukrainian investigations into a
political rival. The Majority has ignored those facts. First,
on December 2, President Zelensky repeated his earlier
statements\18\ that he was not pressured by President Trump. In
fact, he said he was not aware of a quid pro quo involving U.S.
security assistance.\19\ Second, on December 10, a close aide
to President Zelensky, Andriy Yermak, denied discussing a quid
pro quo with Gordon Sondland, which, as discussed below, is the
linchpin of the Majority's factual case.\20\ It is difficult to
conceive that a months-long pressure campaign existed when the
alleged victims are not aware of it and deny being pressured.
These exculpatory facts not only undercut the Majority's
primary factual claims, they emphasize the problems with the
rushed nature of the process.
---------------------------------------------------------------------------
\18\Tara Law, `Nobody Pushed Me.' Ukrainian President Denies Trump
Pressured Him to Investigate Biden's Son, TIME (Sep. 25, 2019).
\19\Simon Shuster, `I Don't Trust Anyone at All,' Ukrainian
President Volodymyr Zelensky Speaks Out on Trump, Putin and a Divided
Europe, TIME (Dec. 2, 2019).
\20\Simon Shuster, Top Ukraine Official Andriy Yermak Casts Doubt
on Key Impeachment Testimony, TIME (Dec. 10, 2019).
---------------------------------------------------------------------------
IV. Article I Fails to Establish an Impeachable Offense
Impeachment is only warranted for conduct that constitutes
``Treason, Bribery, or other high Crimes and
Misdemeanors.''\21\ For months, the Majority claimed the
President was guilty of bribery, extortion, and a host of other
common law and penal code crimes,\22\ but the Articles of
Impeachment do not include any of those specific offenses. In
fact, the first Article in the resolution sponsored by Chairman
Nadler alleges an amorphous charge of ``abuse of power.''\23\
---------------------------------------------------------------------------
\21\U.S. Const. Art. II, Sec. 4.
\22\See e.g., Mike DeBonis & Toluse Olorunnipa, Democrats sharpen
impeachment case, decrying `bribery' as another potential witness
emerges linking Trump to Ukraine scandal, Washington Post (Nov. 14,
2019).
\23\H. Res. 775, 116th Cong. (2019).
---------------------------------------------------------------------------
Simply put, the Majority has included the vague ``abuse of
power'' charge because they lack the evidence to prove bribery,
extortion, or any other crimes. For example, during the
Committee's markup of the articles of impeachment, Members from
the Minority explained in detail why the Majority's claims that
the President was guilty of bribery were erroneous.\24\
---------------------------------------------------------------------------
\24\See Markup of H. Res 755, Articles of Impeachment Against
President Donald J. Trump, Before the H. Comm. on the Judiciary, 116th
Cong. 77-78, 167-68 (statements of Reps. Buck and Reschenthaler;
specifically, that Democrats lacked the evidence to prove at least
three elements of the crime of bribery).
---------------------------------------------------------------------------
It is not the Minority's contention that an abuse of power
can never form the basis for an impeachment. But an accusation
of abuse of power must be based on a higher and more concrete
standard than conduct that ``ignored and injured the interests
of the Nation.''\25\ The people, through elections, decide what
constitutes the ``interests of the nation.'' For an abuse of
power charge, although ``criminality is not required . . .
clarity is necessary.''\26\
---------------------------------------------------------------------------
\25\Id. at 110 (Article I, charging that the President abused his
power because he ``ignored and injured the interests of the nation.'').
\26\Turley, supra note 2, at 11.
---------------------------------------------------------------------------
Unfortunately, such clarity is utterly lacking in the
Majority's articles. This is the first presidential impeachment
in American history without the allegation of a crime, let
alone a high crime or high misdemeanor. The absence of even an
allegation of criminality, after months of claiming multiple
crimes had been committed, reveals the Majority's inability to
substantiate their claims.\27\ The abuse of power charge in the
first Article is vague, unprovable, and confined only by the
impulses of the majority party in the House of Representatives.
The Majority has failed to distinguish its definition of
``abuse of power'' from simple dislike or disagreement with the
President's actions because this impeachment is inextricably
tied to the Majority's dislike and disagreement with the
President. That is not what the Founders intended.
---------------------------------------------------------------------------
\27\See Appendix A (Intel. Comm. Minority Report), outlining the
evidentiary deficiencies in the Majority's case.
---------------------------------------------------------------------------
The crux of the factual allegations in the first Article is
that the President directed a months-long pressure campaign to
force President Zelensky to announce particular investigations
in exchange for U.S. security assistance or a White House
meeting, in an effort to influence the 2020 election. The
Intelligence Committee Minority Report demonstrates that these
claims were not only unproven but, in fact, are undermined or
contradicted by the primary actors in the alleged scheme.\28\
Significantly, the alleged victims of the supposed pressure
campaign were not even aware of any so-called pressure
campaign.\29\ Indeed, if the Majority had proof of bribery,
they would have said so in the Articles.
---------------------------------------------------------------------------
\28\Id. at 32-64.
\29\Georgi Kantchev, Ukrainian President Denies Trump Pressured Him
During July Call, Wall Street Journal (Oct. 10, 2019) (President
Zelensky said, ``There was no blackmail.''); Matthias Williams, U.S.
envoy Sondland did not link Biden probe to aid: Ukraine minister,
Reuters (Nov. 14, 2019) (Ukraine's Foreign Minister Vadym Prystaiko
said Ambassador Sondland ``did not tell us . . . about a connection
between the assistance and the investigations.''); Mark Moore,
Ukraine's Zelensky again denies quid pro quo during Trump phone call,
NY Post (Dec. 2, 2019) (President Zelensky again denies there was a
quid pro quo); Simon Shuster, Top Ukraine Official Andriy Yermak Casts
Doubt on Key Impeachment Testimony, TIME (Dec. 10, 2019) (Andriy Yermak
denies discussing military assistance with Ambassador Sondland).
---------------------------------------------------------------------------
Because they do not have direct evidence of a pressure
campaign against the Ukrainians, the Majority's allegations are
based on presumptions, assumptions, hearsay, and
inferences.\30\ And its most critical assumptions and
inferences have been contradicted by direct evidence from the
primary actors in the alleged scheme.\31\ It is no surprise the
allegations shifted from quid pro quo, bribery, and extortion
to settle on an undefined ``abuse of power.'' The facts
uncovered by the Intelligence Committee fail to approach the
constitutional and historical standard for impeaching a
president.\32\ As Professor Jonathan Turley testified before
this Committee, this is the ``thinnest evidentiary record'' in
the history of presidential impeachments.\33\ The reason the
Majority has failed to seek information to substantiate that
record, as Professor Turley and the Minority agree, is ``an
arbitrary deadline at the end of December.''\34\
---------------------------------------------------------------------------
\30\See The Impeachment Inquiry into President Donald J. Trump:
Testimony of Ambassador Gordon Sondland, Hearing Before the H. Perm.
Sel. Comm. on Intelligence, 116th Cong. 148-51 (2019) (Ambassador
Sondland testifying that his testimony about military was a
``presumption'' and that nobody told him the aid was linked to
investigations); see also Appendix A (Intel. Comm. Minority Views) at
32-64.
\31\See supra note 29; Intel. Comm. Minority Views, at 43-44
(testimony of Ambassador Kurt Volker, the Special Envoy to Ukraine);
Letter from Sen. Ron Johnson to the Honorable Jim Jordan, Ranking
Member, H. Comm. on Oversight & Reform, and the Honorable Devin Nunes,
Ranking Member, H. Perm. Sel. Comm. on Intelligence (Nov. 18, 2019).
\32\See supra note 10 (Opening Statement of Stephen R. Castor).
\33\Turley, supra note 2, at 4.
\34\Id. at 48.
---------------------------------------------------------------------------
A. IMPEACHMENT IN THE HOUSE OF REPRESENTATIVES REQUIRES CLEAR AND
CONVINCING EVIDENCE OF SPECIFIC IMPEACHABLE CONDUCT. THE MAJORITY HAS
NOT MET ITS BURDEN.
Some in the Majority have argued that the House of
Representatives is like a grand jury that should vote to
impeach based on probable cause. This framing contradicts
historical precedent. In the Clinton Impeachment Minority
Views, House Democrats stated that the burden of proof, just as
it was in the Nixon inquiry, should be ``clear and convincing
evidence.''\35\ Chairman Nadler elaborated on that standard
when he said:
---------------------------------------------------------------------------
\35\See id. at 211.
At a bare minimum, [ ] the president's accusers must
go beyond hearsay and innuendo and beyond demands that
the president prove his innocence of vague and changing
charges. They must provide clear and convincing
evidence of specific impeachable conduct.\36\
---------------------------------------------------------------------------
\36\Impeachment Inquiry: William Jefferson Clinton, President of
the United States, 105th Cong., Consideration of Articles of
Impeachment 78 (Comm. Print 1998) (statement of Rep. Jerrold Nadler).
The Majority should reflect upon Chairman Nadler's words.
The staff report on Constitutional Grounds for Impeachment
filed during the Nixon impeachment further explains the high
bar required for impeachment:
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.\37\
---------------------------------------------------------------------------
\37\Staff of H. Comm. on the Judiciary, 93d Cong., Constitutional
Grounds for Presidential Impeachment 4, at 27 (Comm. Print 1974)
(``Nixon Constitutional Grounds for Presidential Impeachment'').
As described below, the Majority's case fails to meet the
burden of proof required.\38\
---------------------------------------------------------------------------
\38\See also Appendix A (Intel Comm. Minority Report).
---------------------------------------------------------------------------
B. ABUSE OF POWER ALLEGATIONS ARE OVERBROAD AND FAIL TO ALLEGE SPECIFIC
IMPEACHABLE CONDUCT
Instead of alleging specific impeachable conduct, such as
bribery or other high crimes, the Majority has alleged the
vague and malleable charge of ``abuse of power.'' While a
consensus of scholars agree it is possible to impeach a
president for non-criminal acts, the House of Representatives
has never done so based ``solely or even largely on the basis
of a non-criminal abuse of power allegation.''\39\ That is
because ``[c]riminal allegations not only represent the most
serious forms of conduct under our laws, but they also offer an
objective source for measuring and proving such conduct.''\40\
No such objective measure has been articulated by the Majority.
---------------------------------------------------------------------------
\39\Turley, supra note 2, at 47.
\40\Id. at 23.
---------------------------------------------------------------------------
The Majority claims its abuse of power standard is
satisfied when a president injures ``the interests of the
nation'' for a personal political benefit.\41\ What constitutes
an injury to the national interest has been left undefined. It
can mean anything a majority in Congress wants it to mean. The
opposition party almost unfailingly disagrees with a president
on many issues and can always argue his or her actions injure
the national interest. Here, for example, Majority Members have
already begun to argue the abuse of power allegations in the
first Article encompass conduct totally unrelated to the
Ukraine allegations.\42\ Moreover, nearly any action taken by a
politician can result in a personal political benefit. When a
certain standard can always be met by virtually all presidents,
depending on partisan viewpoints, that standard has no limiting
neutral principle and must be rejected. Simply stated, the
Majority is advancing an impeachment based on policy
differences with the President--a dangerous and slippery slope
that our Founders cautioned against during discussions crafting
the impeachment clause.
---------------------------------------------------------------------------
\41\See H. Res. 755, 116th Cong. (2019) (Article I).
\42\See, e.g., Rep. Rashida Tlaib, TWITTER, Dec. 10, 2019, 11:14am
(stating that ``abuse of power'' standard includes the allegation that
the ``President targeted people solely based on their ethic [sic]
background, their faith, disability, sexual orientation and even source
of income.'').
---------------------------------------------------------------------------
The Founders warned against such a vague and open-ended
charge because it can be applied in a partisan fashion by a
majority of the House of Representatives against an opposition
president. Alexander Hamilton called partisan impeachment
``regulated more by the comparative strength of parties, than
by the real demonstrations of innocence or guilt'' the
``greatest danger.''\43\ Additionally, the Founders explicitly
excluded the term ``maladministration'' from the impeachment
clause because they did not want to subject presidents to the
whims of Congress.\44\ James Madison said, ``So vague a term
will be equivalent to a tenure during pleasure of the
Senate.''\45\ As applied here, the Majority's abuse of power
standard does precisely what the Founders rejected.
---------------------------------------------------------------------------
\43\The Federalist No. 65 (Alexander Hamilton).
\44\2 The Records of the Federal Convention of 1787, 550 (Max
Farrand ed., 1937).
\45\Id.
---------------------------------------------------------------------------
Thus, when the House of Representatives impeaches a
president for non-criminal abuses of power, it must state with
clarity how the harm to ``national interests'' is so egregious
that it merits usurping the will of the electorate.\46\ The
Majority has attempted to do that by equating a telephone
conversation with election tampering. That argument is
resoundingly unconvincing.
---------------------------------------------------------------------------
\46\Turley, supra note 2, at 11.
---------------------------------------------------------------------------
To prove an abuse of power, the accusation and the evidence
against a president must ``be sufficiently clear to assure the
public that an impeachment is not simply an exercise of
partisan creativity in rationalizing a removal of a
president.''\47\ Here, specific impeachable conduct was not
clearly identified because the Majority failed to prove its
initial allegations of a quid pro quo, bribery, extortion, and
other statutory crimes.
---------------------------------------------------------------------------
\47\Id. at 25.
---------------------------------------------------------------------------
1. Claims About the 2020 Election are Hyperbolic and Misleading
The injury to the national interest alleged against the
President is harm to the integrity of the 2020 election. The
Majority claims the President has engaged in a pattern of
inviting foreign governments to intervene in American
elections, and removal is the only option to preserve American
democracy. Chairman Adam Schiff said not impeaching is
equivalent to saying, ``Why not let him cheat in one more
election?''\48\ That claim is hyperbolic and untrue.
---------------------------------------------------------------------------
\48\Allan Smith & Rebecca Shabad, House leaders unveil two articles
of impeachment, accusing Trump of `high crimes and misdemeanors', NBC
News (Dec. 10, 2019) (``Remarks by Chairman Adam Schiff'').
---------------------------------------------------------------------------
First, the basis for the Majority's claimed pattern of
conduct is a statement made in 2016 by then-candidate Trump
during a public press conference, when he jokingly and
mockingly asked Russia to find former Secretary of State
Hillary Clinton's infamous 30,000 missing emails.\49\ That
statement has now been used as a basis to impeach the President
because, the Majority argues, he invited a foreign power to
intervene in the 2016 election and will do it again. This claim
is specious for at least three reasons. First, the President
was speaking publicly to fellow Americans. The remark was not,
for example, caught on a hot microphone during a private
conversation with the Russian president.\50\ Second, the remark
was made in jest in response to a question at a public press
conference, following the news that 30,000 of Clinton's
emails--potentially incriminating evidence--had mysteriously
disappeared. Millions of Americans, including then-candidate
Trump, were wondering what had happened. Finally, there is no
evidence that the President actively sought to conspire with
Russia to interfere in the election. The Majority simply does
not like the comment.
---------------------------------------------------------------------------
\49\See Ian Schwartz, Trump to Russia: I Hope You're Able to Find
Clinton's 30,000 Missing Email, Real Clear Politics (July 27, 2016).
\50\J. David Goodman, Microphone Catches a Candid Obama, NY Times
(March 26, 2012).
---------------------------------------------------------------------------
The last point is particularly relevant. The Majority
actively ignores the fact that the FBI and a special counsel
spent nearly three years investigating the allegation that the
President or his campaign colluded or conspired with the
Russian government. Both concluded that the Trump-Russia
collusion narrative was baseless.\51\ The special counsel found
no conspiracy and no collusion.\52\ Indeed, on December 9,
2019--the same day the Committee received testimony from
Chairman Schiff's staff, rather than Schiff himself--the
Inspector General released a report outlining a myriad of
egregious errors committed by the FBI during its Russia
collusion investigation.\53\ That the Majority included
references to the Russia collusion narrative in these Articles
of Impeachment illuminates the Majority's disregard for
history, trivializes impeachment, and demonstrates an inability
by the Majority to accept the inconvenient conclusions of those
investigations--which, of course, the Majority previously
lauded. It should be noted that the misconduct uncovered by the
Department of Justice Inspector General largely occurred during
President Obama's administration. As such, there is no basis to
suspect President Trump's administration would allow the same
election year abuses seen in 2016--which included the
wiretapping of then-candidate Trump's campaign worker.\54\
---------------------------------------------------------------------------
\51\See Robert S. Mueller III, Report On The Investigation Into
Russian Interference In The 2016 Presidential Election (March 2019)
(``Mueller Report''); Michael Horowitz, A Review of Various Actions by
the Federal Bureau of Investigation and Department of Justice in
Advance of the 2016 Election (June 2018) (``Horowitz Report'').
\52\See Mueller Report at 1.
\53\See Horowitz Report at i.
\54\Id.
---------------------------------------------------------------------------
Second, there was no invitation by President Trump for
Ukraine to ``intervene'' in the 2020 election. By the
Majority's standard, any action taken by any president that may
affect an election is itself ``intervention'' in that election.
Assuredly, every elected official eligible for reelection gives
thought to how their actions will improve or harm their future
campaign. Asking the president of Ukraine to ``look into''
potential corruption involving Hunter Biden's employment at a
notoriously corrupt company in Ukraine is not ``corrupting
democratic elections.''\55\ Any request, however remote, that
might benefit a politician politically is not an invitation to
corrupt an election. To portray the President's request as
corrupting the 2020 election is disingenuous, at best. As
explained further below, the President did not ask for false
information, and the fact that a key player in a corrupt
Ukrainian company is the son of a politician does not transform
a legitimate question into election interference.
---------------------------------------------------------------------------
\55\H. Res. 755, 116th Cong. (2019) (Article I).
---------------------------------------------------------------------------
Finally, the Majority argues that it must act now to
prevent an ongoing ``crime spree''.\56\ This is a spurious
charge since the Articles of Impeachment do not allege any
crimes, past or present. The Majority's argument that it must
impeach the President to prevent future crimes, on the basis of
past crimes not alleged in the Articles, is difficult to
comprehend. Though impeachment is conceived of as prophylactic,
the Majority would wield it on prognostication alone. The
Majority must point to a high crime or other impeachable
offense before claiming it is acting to protect future
generations. It has completely failed to do so, instead relying
on politically-motivated innuendo.
---------------------------------------------------------------------------
\56\See supra note 24, at 62.
---------------------------------------------------------------------------
2. Prior Presidential Impeachments Were All Based on Criminality
The Majority's Articles of Impeachment are unprecedented in
American history because they are not based on criminality, as
were all prior presidential impeachments. President Johnson was
impeached by the House of Representatives in 1868 for violating
the Tenure of Office Act.\57\ The House Judiciary Committee
approved Articles of Impeachment against President Nixon based
on extensive and proven criminal conduct. As Professor Turley
explained:
---------------------------------------------------------------------------
\57\Turley, supra note 2, at 14-17.
The allegations began with a felony crime of burglary
and swept to encompass an array of other crimes
involving political slush funds, payments of hush
money, maintenance of an enemies list, directing tax
audits of critics, witness intimidation, multiple
instances of perjury, and even an alleged kidnapping.
Ultimately, there were nearly 70 officials charged and
four dozen of them found guilty. Nixon was also named
as an unindicted conspirator by a grand jury. . . . The
claim that the Ukrainian controversy eclipses Watergate
is unhinged from history.\58\
---------------------------------------------------------------------------
\58\Id. at 17-20.
The House of Representatives impeached President Clinton
for the federal crime of lying under oath to deny justice to a
fellow American.\59\ While individual Articles of Impeachment
have been passed against prior presidents that do not allege
criminality, no president has been impeached solely on non-
criminal accusations. This impeachment not only fails to
satisfy the standard of past impeachments but would create a
dangerous precedent because the alleged conduct is unproven.
---------------------------------------------------------------------------
\59\See H. Rept. 105-830, 105th Cong. (1998).
---------------------------------------------------------------------------
3. This Is the First Presidential Impeachment Where the Primary
Allegations Have Not Been Proven
The Majority has said repeatedly that the facts in this
impeachment inquiry are not in dispute. That is false. Not only
are the facts in dispute, the Majority's primary allegations
are based on presumptions that are contradicted by direct
evidence. Indeed, this is the first presidential impeachment
where the primary allegations have not been proven.\60\ In the
Nixon impeachment, the Judiciary Committee had tapes and a host
of proven crimes.\61\ In the Clinton impeachment, there was
physical evidence and a well-founded perjury claim that even
President Clinton's supporters acknowledged was a felony,
leaving them to argue that some felonies are not
impeachable.\62\ Here, all the Majority has presented
connecting the hold on foreign security assistance to a request
for investigations is a presumption by Ambassador Gordon
Sondland.\63\ But that presumption is contradicted by more
credible direct evidence. Specifically, Ambassador Kurt Volker
testified that there was no ``linkage'' between a White House
meeting and Ukrainian actions to investigate President Trump's
political rival.\64\ During his public testimony, in an
exchange with Rep. Mike Turner, Ambassador Volker reiterated
that there was no linkage between foreign security assistance
and investigations.\65\
---------------------------------------------------------------------------
\60\Turley, supra note 2, at 22.
\61\Id.
\62\See Staff of H. Comm. on the Judiciary, 105th Cong.,
Constitutional Grounds for Presidential Impeachment: Modern Precedents,
Minority Views, at 15 (1998) (``Clinton Impeachment Report'').
\63\See supra note 30, at 148-151 (Testimony of Gordon Sondland
stating that his testimony about security assistance was a
``presumption'' and that nobody told him the aid was linked to
investigations).
\64\Transcribed Interview of Ambassador Kurt Volker (Oct. 3, 2019)
at 35-36; 40.
\65\The Impeachment Inquiry into President Donald J. Trump:
Testimony of Ambassador Kurt Volker and Mr. Timothy Morrison, Hearing
Before the H. Perm. Sel. Comm. on Intelligence, 116th Cong. 106-108;
166 (2019).
---------------------------------------------------------------------------
There are four facts that will never change, making it
impossible for the Majority to make any convincing case for the
impeachment of the President on these facts. First, the
President has publicly released the transcript of the July 25
call, which shows no conditionality for any official act.\66\
Second, President Zelensky and his advisors did not know the
aid was on hold until it was reported publicly at the end of
August.\67\ Third, both President Trump and President Zelensky
have said repeatedly there was no pressure, no quid pro quo,
and no linkage between the aid and investigations.\68\ Fourth,
the foreign security assistance funds were released without
Ukraine announcing or undertaking any investigations.
---------------------------------------------------------------------------
\66\The White House, Memorandum of Telephone Conversation 1 (July
25, 2019).
\67\See Appendix A (Intel Comm. Minority Report), at 50 (citing
testimony of Ambassadors Volker and Taylor).
\68\See, e.g., Georgi Kantchev, Ukrainian President Denies Trump
Pressured Him During July Call, WALL STREET JOURNAL (Oct. 10, 2019)
(President Zelensky said ``There was no blackmail.''); Matthias
Williams, U.S. envoy Sondland did not link Biden probe to aid: Ukraine
minister, REUTERS (Nov. 14, 2019) (Ukraine's Foreign Minister Vadym
Prystaiko said Ambassador Sondland ``did not tell us . . . about a
connection between the assistance and the investigations.''); Simon
Shuster, `I Don't Trust Anyone at All,' Ukrainian President Volodymyr
Zelensky Speaks Out on Trump, Putin and a Divided Europe,'' TIME (Dec.
2, 2019) (President Zelensky again denies there was a quid pro quo).
---------------------------------------------------------------------------
Additionally, Andriy Yermak, the only Ukrainian who
allegedly was told about Ambassador Sondland's presumption,
described in great detail his brief encounter with Ambassador
Sondland that occurred when they were walking towards an
escalator and said Ambassador Sondland never told him that U.S.
security assistance was tied to investigations.\69\ It defies
logic to believe the President carefully orchestrated a months-
long pressure campaign involving security assistance when the
alleged victims of the supposed pressure campaign did not even
know about it or about conditionality on any official act.
Equally unconvincing is the assertion that everyone who
disagrees with Ambassador Sondland's presumption is just lying.
---------------------------------------------------------------------------
\69\Simon Shuster, Top Ukraine Official Andriy Yermak Casts Doubt
on Key Impeachment Testimony, TIME (Dec. 10, 2019).
---------------------------------------------------------------------------
Finally, the President was asked about Ambassador
Sondland's presumption on two separate occasions, and both
times President Trump said Sondland was wrong. After Ambassador
Sondland told Senator Ron Johnson on August 30 about his
presumption that U.S. security assistance was linked to
investigations, Senator Johnson called the President on August
31 and asked if Ambassador Sondland's presumption was
accurate.\70\ The President said, ``No way. I would never do
that.''\71\ Senator Johnson and Senator Murphy subsequently met
with President Zelensky. They discussed Ukraine's recent anti-
corruption efforts and U.S. security assistance, but, not
surprisingly, the question of investigations was not
raised.\72\ Likewise, when Ambassador Sondland asked President
Trump what he wants from Ukraine, the President said, ``I want
nothing.''\73\ In fact, the President said he wanted President
Zelensky to do what he ran on: root out corruption in
Ukraine.\74\
---------------------------------------------------------------------------
\70\Letter from Sen. Ron Johnson to the Honorable Jim Jordan,
Ranking Member, H. Comm. on Oversight & Reform, and the Honorable Devin
Nunes, Ranking Member, H. Perm. Sel. Comm. on Intelligence, at 5 (Nov.
18, 2019).
\71\Id. at 6.
\72\Id. at 6-7.
\73\See supra note 30, at 148-151 (Testimony of Ambassador Gordon
Sondland stating the President said ``I want nothing.'').
\74\Id.
---------------------------------------------------------------------------
Ultimately, Ukraine received the U.S. security assistance
and a meeting with the President without announcing any
investigations. There is no evidence that the President engaged
in a pressure campaign or other scheme to condition security
assistance on investigations. The Majority's case is built on a
presumption that is contradicted by the evidence. The
Intelligence Committee Minority Report provides further details
about the flaws in the Majority's factual case. If the Majority
proceeds with impeachment, it will be based on one presumption
from one witness who amended his story multiple times.
C. THE MAJORITY FAILS TO EXPLAIN WHY ASKING ABOUT HUNTER BIDEN'S ROLE
ON BURISMA BOARD OF DIRECTORS IS A HIGH CRIME OR MISDEMEANOR
After failing to substantiate the allegations related to
the U.S. security assistance, the Majority's remaining
allegation is that the President committed the ``high crime''
of asking President Zelensky to look into potential corruption
involving Hunter Biden's role on Burisma's board of
directors.\75\ This allegation is not a high crime or
misdemeanor.
---------------------------------------------------------------------------
\75\See supra note 69.
---------------------------------------------------------------------------
That question was the same question the American media had
been asking for years. For example, on June 20, 2019, ABC News
scrutinized Hunter Biden's involvement on the Burisma board of
directors on a nationally televised news report.\76\ The
reporter asked whether ``Hunter Biden profit[ed] off his Dad's
work as vice-president, and did Joe Biden allow it?''\77\
Numerous other publications have asked the same questions,
including the Wall Street Journal as far back as 2015.\78\
Former Vice President Biden himself, in a widely circulated
video, explained his role in leveraging foreign aid to get a
Ukrainian prosecutor who had investigated Burisma fired during
a speech at the Council on Foreign Relations.\79\ As the New
York Times reported earlier this year, ``Among those who had a
stake in the outcome was Hunter Biden, Mr. Biden's younger son,
who at the time was on the board of an energy company owned by
a Ukrainian oligarch who had been in the sights of the fired
prosecutor general.''\80\ Certainly, the questions surrounding
the Bidens' role in Ukraine have been topics of interest for
the media for a long time.
---------------------------------------------------------------------------
\76\Biden sidesteps questions about son's foreign work, ABC NEWS
(June 20, 2019).
\77\Id.
\78\Paul Sonne & Laura Mills, Ukrainians See Conflict in Biden's
Anticorruption Message, Wall Street Journal (Dec. 7, 2015) (Quoting
Ukrainian corruption expert stating: ``If an investigator sees the son
of the vice president of the United States is part of the management of
a company . . . that investigator will be uncomfortable pushing the
case forward.''); see also James Risen, Joe Biden, His Son and the Case
Against a Ukrainian Oligarch, NY Times (Dec. 8, 2015); Kenneth Vogel &
Iuliia Mendel, Biden Faces Conflict of Interest Questions that are
being Promoted by Trump and Allies, NY Times (May 1, 2019).
\79\Council on Foreign Relations, Foreign Affairs Issue Launch with
Former Vice President Joe Biden (Jan. 23, 2018).
\80\Kenneth Vogel & Iuliia Mendel, Biden Faces Conflict of Interest
Questions that are being promoted by Trump and Allies, NY Times (May 1,
2019).
---------------------------------------------------------------------------
There is nothing untoward about a president asking a
foreign government to investigate the same questions about
potential corruption the American media was asking publicly. In
fact, the United States has been party to a Mutual Legal
Assistance Treaty (MLAT) with Ukraine since 2001.\81\ The
purpose of that MLAT includes ``mutual assistance . . . in
connection with the investigation, prosecution, and prevention
of offenses, and in proceedings related to criminal
matters.''\82\
---------------------------------------------------------------------------
\81\See Department of State, ``Ukraine (12978)--Treaty on Mutual
Legal Assistance in Criminal Matters''.
\82\Id. at art. I cl. 1.
---------------------------------------------------------------------------
Furthermore, being a political campaign participant does
not immunize anyone from scrutiny. The President did not ask
for the creation of any false information. When Lt. Col.
Vindman was asked ``Would it ever be U.S. policy, in your
experience, to ask a foreign leader to open a political
investigation?'' he replied, ``. . . Certainly the President is
well within his right to do that.''\83\
---------------------------------------------------------------------------
\83\The Impeachment Inquiry into President Donald J. Trump:
Testimony of Ms. Jennifer Williams & Lt. Col. Alexander Vindman,
Hearing Before the H. Perm. Sel. Comm. on Intelligence, 116th Cong. 120
(2019).
---------------------------------------------------------------------------
V. Article II Fails To Establish an Impeachable Offense
The second Article of Impeachment, ``Obstruction of
Congress,'' appears to be a simple invective by the Majority
against the constitutional reality of separation of powers.\84\
The Majority's refusal to engage the Executive Branch in the
traditional accommodations process,\85\ or seek redress from
the Judicial Branch, has rendered this Article as baseless as
the first. The system of checks and balances is neither
theoretical nor dispassionate; the Founders fully intended to
put the three branches in conflict, and expected they would
argue self-interestedly for their respective powers.\86\ The
inclusion of the second Article may be due to the Majority's
reticence to propose only a single unsupported Article.
---------------------------------------------------------------------------
\84\See Montesquieu, Charles de Secondat, baron de, 1689-1755. The
Spirit of the Laws. The Colonial Press, 1899 (New York). (``But should
the legislative power usurp a share of the executive, the latter would
be equally undone . . . Here, then, is the fundamental constitution of
the government we are treating of. The legislative body being composed
of two parts, they check one another by the mutual privilege of
rejecting. They are both restrained by the executive power, as the
executive is by the legislative.'').
\85\Cf. U.S. v. Nixon, 418 U.S. 683, 703 (1974) (``In the
performance of assigned constitutional duties, each branch of the
Government must initially interpret the Constitution, and the
interpretation of its power by any branch is due great respect from the
others.'').
\86\The Federalist No. 51 (James Madison) (``This policy of
supplying, by opposite and rival interests, the defect of better
motives, might be traced through the whole system of human affairs,
private as well as public. We see it particularly displayed in all the
subordinate distributions of power, where the constant aim is to divide
and arrange the several offices in such a manner as that each may be a
check on the other that the private interest of every individual may be
a sentinel over the public rights . . . As the weight of the
legislative authority requires that it should be thus divided, the
weakness of the executive may require, on the other hand, that it
should be fortified.'').
---------------------------------------------------------------------------
No president has been impeached for obstruction of
Congress. The Majority seeks to impeach the President not for
violating the Constitution but, instead, for asserting
privileges that are part of its very structure. Though
Legislative frustration with Executive resistance has
previously inspired calls for impeachment and even the drafting
of Articles of Impeachment, in this instance, the Majority is
rushing to impeachment without attempting to engage available
alternative avenues to obtain information. They have failed to
do so because the Majority has set an arbitrary, politically-
motivated deadline, by which it believes it must finish
impeachment. Quite simply, further negotiations or the courts
would take too long for the Majority's liking. This situation
is truly unprecedented.
A. OBSTRUCTION OF CONGRESS DOES NOT CONSTITUTE A HIGH CRIME OR HIGH
MISDEMEANOR WHILE FURTHER RECOURSE IS AVAILABLE
The obstruction of Congress allegations in this second
Article do not meet the impeachable standard demanded by the
Constitution. The Founders intended to create interbranch
conflict. The fact that conflict exists here does not mean the
President has committed either a high crime or a high
misdemeanor. Most significantly, Congress has not pursued any
of its many remedies to resolve interbranch disputes.
Congress has legislated remedies for itself to enforce its
investigation requests, but it has not pursued those
remedies.\87\ Congress may also turn to the Judicial Branch to
resolve interbranch disputes over subpoenas, as it has done
many times in the past.\88\ The Majority has neglected to do
so. The Majority's claim that the current administration's
``total'' declination to participate in the effort to unseat
him--either by the President himself or other Executive Branch
officers--is somehow unprecedented is, simply, incorrect.\89\
The Majority has engaged in a fundamentally unfair process and
created a scenario in which the President's assertion of valid
constitutional privileges is being used as a weapon against
him.
---------------------------------------------------------------------------
\87\See, e.g., 2 U.S.C. Sec. Sec. 192.
\88\See, e.g., H. Comm. on the Judiciary v. Miers, 558 F. Supp. 2d
(D.D.C. 2008).
\89\Many presidents have instructed Executive Branch officials not
to comply with congressional demands. See Theodore Olson, History of
Refusals By Executive Branch Officials to Provide Information Demanded
by Congress, Part I, December 14, 1982, 6 Op. Off. Legal Counsel 751.
The Olson OLC Opinion describes, for example, President Jackson
stating, ``It is now, however, my solemn conviction that I ought no
longer, from any motive nor in any degree, to yield to these
unconstitutional demands. Their continued repetition imposes on me, as
the representative and trustee of the American people, the painful but
imperious duty of resisting to the utmost any further encroachment on
the rights of the Executive.'' President Theodore Roosevelt stated,
``[I have] instructed the Attorney General not to respond to that
portion of the resolution which calls for a statement of his reasons
for nonaction.'' And President Eisenhower, in a May 17, 1954, letter to
the Secretary of Defense said: ``[Y]ou will instruct employees of your
Department that in all of their appearances before the Subcommittee of
the Senate Committee on Government Operations regarding the inquiry now
before it they are not to testify to any such conversations or
communications, or to produce any such documents or reproductions.''
---------------------------------------------------------------------------
The Intelligence Committee Majority served numerous
subpoenas for documents and testimony. However, in at least one
case, when the witness sought judicial review of the subpoena,
the Majority withdrew it. Former Deputy National Security
Advisor and Assistant to the President Charles Kupperman was
one of the few people to listen in on the call between
President Trump and President Zelensky on July 25 and received
a subpoena to testify. When the White House instructed him to
not testify, he asked the court to resolve ``irreconcilable
commands'' from the Legislative and Executive Branches.\90\
Inexplicably, the Majority promptly withdrew the subpoena and
moved to dismiss the lawsuit.
---------------------------------------------------------------------------
\90\Brief of Plaintiff, Charles M. Kupperman, Kupperman v. House of
Representatives, Case No: 1:19-cv-03224 at 2 (D.D.C. Oct. 25, 2019).
---------------------------------------------------------------------------
Additionally, at least three subpoenas authorized and
signed by Intelligence Committee Chairman Schiff were served
prior to the passage of House Resolution 660 (``H. Res.
660'').\91\ Since H. Res. 660 gave Chairman Schiff jurisdiction
to pursue this impeachment inquiry, an authorization he did not
previously wield, it is likely these subpoenas would be
defective and unenforceable since they were issued prior to its
passage. Notably, the House of Representatives has chosen not
to ask the federal judiciary to opine on such questions,
instead rushing straight to impeachment without engaging the
courts to resolve this interbranch dispute.
---------------------------------------------------------------------------
\91\Subpoena of Secretary of State Mike Pompeo (Sept. 27), Subpoena
of Vice President Mike Pence (Oct. 4), and Subpoena of Acting White
House Chief of Staff Mick Mulvaney (Oct. 4).
---------------------------------------------------------------------------
The federal judiciary's recent ruling that White House
Counsel Don McGahn must appear before the Judiciary Committee
demonstrates that assertions of privileges by the White House
do not foreclose the House of Representatives' ability to hear
testimony from relevant witnesses.\92\ For the price of
legitimacy, the Majority is only required to pay a small amount
of patience and deference to the courts.
---------------------------------------------------------------------------
\92\H. Comm. on the Judiciary v. McGahn, Opinion of the Court, Case
No: 1:19-cv-02379 (D.D.C. Nov. 25, 2019).
---------------------------------------------------------------------------
The Majority's claim that the courts are too slow or
deliberative only demonstrates the Majority's pessimism about
the merits of this case.\93\ The Majority's actions show the
American people disdain for working within the constitutional
framework. Any case filed pursuant to an impeachment inquiry
can be expedited in the courts. In the Nixon litigation, courts
moved relevant cases quickly to and through the Supreme
Court.\94\ The decision to adopt an abbreviated schedule for
the investigation and not to seek to compel testimony is a
strategic choice by the Majority. It is not an appropriate
justification for impeachment.
---------------------------------------------------------------------------
\93\See supra note 49.
\94\Two months elapsed between the ruling of Judge Sirica of the
U.S. District Court for the District of Columbia and the Supreme
Court's final decision.
---------------------------------------------------------------------------
The feebleness of the Obstruction of Congress charge is
rooted not only in the Majority's refusal to petition a court
for enforcement of its subpoenas, but also the Majority's
disregard for the typical process of accommodation that
necessarily requires more time than the Majority has allowed.
The ``gold standard'' of impeachment inquiries was with
President Nixon.\95\ But in that case the ``Obstruction of
Congress'' Article of Impeachment authorized by the Judiciary
Committee (but not voted on by the full House) was built upon a
months-long negotiation with the White House, preceded by a
years-long investigation by both houses of Congress.\96\
---------------------------------------------------------------------------
\95\Turley, supra note 2, at 17.
\96\After requests were made to the White House on February 25,
1974, discussions were entered into to attempt to elicit further
cooperation with the White House. Only after these negotiations failed
was the first subpoena issued on April 11, 1974, authorized on a
bipartisan basis by a vote of 33 to 3. President Nixon proceeded to
release to the Committee and the public edited transcripts of 31 of the
42 subpoenaed recorded conversations. Finding the production
insufficient and incompliant with the subpoena, the Committee
authorized two additional subpoenas on May 15: the first, approved 37
to 1, demanded production of additional recorded telephone
conversations which included President Nixon; the second, approved by
separate but overwhelmingly bipartisan vote, demanded the ``daily
diaries'' of President Nixon's calls for four specified periods. In a
letter to Chairman Rodino on May 22, the President declined to produce
the subject material of the May 15 subpoenas. On May 30, the Committee
authorized a fourth subpoena, by a vote of 37 to 1, which demanded
additional tape recordings and all papers relating to Watergate. By a
vote of 28 to 10, the Committee also responded to President Nixon's
failure to produce subpoenaed material, which was in turn was replied
to by President Nixon on June 9. On June 24, the Committee authorized
additional subpoenas into the ITT antitrust litigation and Kleindienst
confirmation, domestic surveillance, governmental decisions affecting
the dairy industry and campaign contributions, and alleged misuse of
the IRS.
---------------------------------------------------------------------------
B. AN IMPEACHMENT INQUIRY DOES NOT ELEVATE THE HOUSE OF REPRESENTATIVES
ABOVE FUNDAMENTAL PRIVILEGES
The Majority cites the ``sole Power of Impeachment'' five
times in the two Articles of Impeachment. The recitation of
Article I, Section 2, Clause 5 of the Constitution is correct,
but it is utterly circular to assert the President deserves to
be impeached because he defended himself from impeachment. The
Constitution's grant of the impeachment power to the House of
Representatives does not temporarily suspend the rights and
powers of the other branches established by the Constitution.
The initiation of impeachment proceedings does not entitle the
House of Representatives automatic license to intrude into all
corners of the federal government. For additional information
regarding the unfair--and in fact, antagonistic--posture the
Majority took during its investigation, refer to Section III of
the Minority Views of the Intelligence Committee, attached as
Appendix A.
The Majority's Articles also illustrate the risk of
appropriating language from previous Articles of Impeachment
never brought to a vote before the House of Representatives.
Specifically, the Majority appears to have lifted from the
Articles of Impeachment of President Nixon the language
accusing the President of asserting privileges ``without lawful
cause or excuse.''\97\ But that is, of course, the heart of the
argument in opposition to this Article. It is not for the
Legislative Branch to determine unilaterally what is a ``lawful
cause or excuse.'' In fact, ``[i]t is emphatically the duty of
the Judicial Department to say what the law is.''\98\ The
initiation of an impeachment inquiry does not change this
calculus. The advantage an impeachment inquiry bestows to fact
gatherers is the greater legitimacy of the Legislative Branch
over the Executive Branch before a Judicial Branch judge or
magistrate, which the Majority avoided altogether. The House of
Representatives has no power to make laws by itself, and it has
no mandate to determine to what privileges the Executive Branch
is entitled. Though it may draft and pass Articles of
Impeachment cloaking itself in the parlance of the judiciary,
the House of Representatives is no substitute for the Judicial
Branch. The adoption of such terminology further undermines the
seriousness of this Article. In fact, it suggests the Majority
is either unaware of the Nixon precedent, or seeks to deceive
the American public about it.
---------------------------------------------------------------------------
\97\Cf. Third Article Impeaching Richard M. Nixon, President of the
United States. Approved by H. Comm. on the Judiciary (July 30, 1974).
\98\Marbury v. Madison, 5 U.S. 137 (1803).
---------------------------------------------------------------------------
C. THE MAJORITY'S FAILURE TO CONDUCT AN IMPEACHMENT INQUIRY IN
ACCORDANCE WITH PRECEDENT HAS LED TO EX POST FACTO CHARACTERIZATIONS OF
THAT INQUIRY
As detailed in Section II above, many of the Majority's
obstruction allegations are due to the Majority's failure to
conduct its inquiry in accordance with precedent.
Fundamentally, the Majority has offered conflicting accounts of
when the inquiry even began.
On September 24, Speaker of the House Nancy Pelosi
announced the House of Representatives was ``moving forward
with an official impeachment inquiry.''\99\ The media generally
reported that this was the commencement of impeachment
proceedings, and the Majority purported to act pursuant to the
Speaker's pronouncement.\100\
---------------------------------------------------------------------------
\99\See supra note 49 (Remarks by Speaker of the House Nancy
Pelosi).
\100\See, e.g., Nicholas Fandos, Nancy Pelosi Announces Formal
Impeachment Inquiry of Trump, NY Times (Sep. 24, 2019).
---------------------------------------------------------------------------
Nonetheless, over a month later, on October 31, the House
of Representatives voted to authorize the impeachment inquiry
that preceded these Articles, with the passage of H. Res. 660.
This resolution directed the Committees on Financial Services,
Foreign Affairs, the Judiciary, Oversight and Reform, and Ways
and Means ``to continue their ongoing investigations as part of
the existing House of Representatives inquiry into whether
sufficient grounds exist for the House of Representatives to
exercise its Constitutional power to impeach Donald John Trump,
President of the United States.''\101\
---------------------------------------------------------------------------
\101\H. Res. 660, 116th Cong. (2019).
---------------------------------------------------------------------------
Prior to the formal vote on October 31, serious and
legitimate questions were raised as to whether the Executive
Branch was being asked to comply with an impeachment inquiry,
standard legislative oversight, or a novel hybrid of the two.
The White House raised those concerns with the Majority on
October 8, but no steps were taken to accommodate reasonable
concerns about due process and fundamental fairness.\102\
---------------------------------------------------------------------------
\102\Letter from Pat Cipollone, White House Counsel, to the
Honorable Nancy Pelosi, Speaker of the House, et al. (Oct. 8, 2019).
---------------------------------------------------------------------------
The unnecessary confusion caused by the Majority about the
status of its investigation calls into question the legitimacy
of any subpoena issued prior to October 31 claiming to be part
of an impeachment inquiry, because subpoenas issued before that
date were not issued pursuant to a formal impeachment inquiry,
congressional oversight, or any cognizable legislative purpose.
A case addressing the validity of actions taken pursuant to
Speaker Pelosi's edict is pending before the D.C. Circuit
court.\103\
---------------------------------------------------------------------------
\103\See In re: Application of the H. Comm. on the Judiciary,
Department of Justice's Notice of Appeal, Case No: 1:19-gj-00048 BAH
(D.C.C. Oct. 28, 2019).
---------------------------------------------------------------------------
D. ASSERTIONS OF PRIVILEGE BY PREVIOUS ADMINISTRATIONS NEVER MERITED
IMPEACHMENT
The Executive Branch has resisted congressional requests
since the administration of President George Washington.\104\
Resisting and asserting privileges in response to congressional
demands has never formed the basis of impeachment.
---------------------------------------------------------------------------
\104\Washington famously declined to deliver to the House of
Representatives documents recording the negotiations with Great Britain
in what would be memorialized in the Jay Treaty of 1795.
---------------------------------------------------------------------------
For example, President Obama cited executive privilege and
barred essential testimony and documents during the
investigation of ``Fast and Furious,'' a gunwalking operation
in which the government arranged for the illegal sale of
weapons to drug cartels in order to track their movement. The
Obama administration argued that the courts had no authority
over its denial of such witnesses and evidence to Congress. In
Committee on Oversight & Government Reform v. Holder, Judge Amy
Berman Jackson, ruled that ``endorsing the proposition that the
executive may assert an unreviewable right to withhold
materials from the legislature would offend the Constitution
more than undertaking to resolve the specific dispute that has
been presented here. After all, the Constitution contemplates
not only a separation, but a balance, of powers.''\105\ The
position of the Obama Administration was extreme. It was also
widely viewed as an effort to run the clock out on the
investigation. Nevertheless, President Obama had every right to
seek judicial review in the matter.
---------------------------------------------------------------------------
\105\H. Comm. on Oversight & Gov't Reform v. Holder, 979 F. Supp.
2d 1, 3 (D.D.C. 2013).
---------------------------------------------------------------------------
The subpoena campaign against the Trump Executive Branch
began in earnest in September of this year, over a month before
the impeachment inquiry had been authorized by the House of
Representatives. In a letter to Secretary of State Michael
Pompeo, the Committee on Foreign Affairs compelled the
production of certain documents from the Department of
State.\106\ The subpoena issued by the Committee on Oversight
and Reform to the White House on October 4, 2019, ``compel[led]
[the White House] to produce documents set forth in the
accompanying schedule by October 18, 2019.''\107\ Any response
less than immediate and total acquiescence, the letter stated,
``shall constitute evidence of obstruction of the House's
impeachment inquiry and may be used as an adverse inference
against you and the President.''\108\ This refrain--a threat by
any definition--has accompanied every subpoena issued to the
Executive Branch and has needlessly created further tension
between the Executive and Legislative Branches. From the
commencement of this inquiry--whenever that may be definitively
ascertained--the Majority has not been reluctant to voice its
goal of impeaching the President.
---------------------------------------------------------------------------
\106\This subpoena followed requests for documents from the
Department of State made on September 9 and September 23 (prior to any
vote authorizing an impeachment inquiry).
\107\Letter from the Honorable Elijah Cummings, Chairman, H. Comm.
on Oversight & Reform, et al. to Pat Cipollone, White House Counsel
(Oct. 4, 2019).
\108\Id.
---------------------------------------------------------------------------
VI. Conclusion
Before the House of Representatives are two Articles of
Impeachment against the President of the United States, Donald
John Trump. To these Articles, the Minority dissents. The
President has neither abused the power granted to him by the
American people nor obstructed Congress. The Majority has
failed to prove a case for impeachment. In fact, the paltry
record on which the Majority relies is an affront to the
constitutional process of impeachment and will have grave
consequences for future presidents. The Majority's tactics and
behavior--procedurally and substantively--emulate the charade
impeachment of President Andrew Johnson, a president impeached
because the House of Representatives did not agree with his
policies.\109\
---------------------------------------------------------------------------
\109\See generally Association of the Bar of New York, the
Committee on Federal Legislation, The Law of Presidential Impeachment
(1974).
---------------------------------------------------------------------------
If President Nixon's impeachment proceedings are the ``gold
standard'' for presidential impeachment inquiries, these
proceedings, in stark contrast, will go down in history as the
quintessential example of how such proceedings should not be
conducted. The Majority Report and attendant documents will be
viewed only as maps to the lowest depths of partisanship that
no future Congress should follow. The quicker the Majority
Report and the Majority's actions are forgotten, the better. As
House Judiciary Republicans have repeatedly stated,\110\ this
institution should move on to working for the American people
and forego this exercise of overturning 63 million of the votes
cast on November 8, 2016.
\110\See, e.g., Letter from H. Comm. on the Judiciary Republican
Members to the Honorable J 