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January 21, 2020 - Issue: Vol. 166, No. 12 — Daily Edition116th Congress (2019 - 2020) - 2nd Session

TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES; Congressional Record Vol. 166, No. 12
(Senate - January 21, 2020)

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[Pages S289-S377]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

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

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

The Journal

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

[[Page S290]]

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

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

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

The online Record has been corrected to read: The CHIEF JUSTICE.
The Secretary will note the name of the Senator who has just taken
the oath and will present the oath book to him for signature.

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

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

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

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

Unanimous Consent Agreement--Authority to Print Senate Documents

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

[In Proceedings Before the United States Senate]

Answer of President Donald J. Trump

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

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

I. the first article of impeachment must be rejected

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

II. the second article of impeachment must be rejected

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

[[Page S291]]

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

III. conclusion

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

Jay Alan Sekulow,

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

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

In re Impeachment of President Donald J. Trump

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

INTRODUCTION

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

Abuse of Power

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

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

Obstruction of Congress

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

BACKGROUND

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

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

ARGUMENT

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

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

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

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

Withheld Security Assistance

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

Withheld White House Meeting

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

B. President Trump Exercised Official Power to Benefit Himself
Personally

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

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

C. President Trump Jeopardized U.S. National Interests

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

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

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

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

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

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

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

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

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

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

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

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

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

[[Page S298]]

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

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

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

ENDNOTES

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

[[Page S299]]

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

[[Page S300]]

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

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

In re Impeachment of President Donald J. Trump

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

INTRODUCTION

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

STATEMENT OF MATERIAL FACTS

I. President Trump's Abuse of Power

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

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

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

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

[[Page S301]]

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

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

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

[[Page S302]]

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

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

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

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

E. President Trump Directly Solicited Election Interference From
President Zelensky

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

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

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

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

[[Page S305]]

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

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

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

[[Page S306]]

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

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

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

A. The House Launched an Impeachment Inquiry

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

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

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

[[Page S307]]

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

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

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

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

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

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

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

[[Page S308]]

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

[[Page S309]]

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

[[Page S310]]

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

[[Page S311]]

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

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

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

[In Proceedings Before the United States Senate]

Trial Memorandum of President Donald J. Trump

EXECUTIVE SUMMARY

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

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

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

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

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

1. President Trump properly asserted executive branch prerogatives

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

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

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

[[Page S314]]

II. The impeachment inquiry in the House was irredeemably
flawed

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

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

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

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

[[Page S315]]

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

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

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

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

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

[[Page S316]]

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

STANDARDS

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

1. Text and Drafting History of the Impeachment Clause

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

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

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

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

3. Practice Under the Impeachment Clause

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

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

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

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

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

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

PROCEDURAL HISTORY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[[Page S321]]

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

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

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

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

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

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

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

[[Page S322]]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[[Page S324]]

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

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

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

[[Page S325]]

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

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

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

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

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

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

[[Page S326]]

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

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

(a) The Due Process Clause Requires Fair Process

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

(b) The Separation of Powers Requires Fair Process

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

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

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

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

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

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

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

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

[[Page S328]]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. House Democrats Rely Solely on Speculation Built on Hearsay

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

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

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

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

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

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

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

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

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

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

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

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

[[Page S334]]

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

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

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

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

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

1. A Presidential Meeting Occurred Without Precondition

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

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

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

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

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

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

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

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

[[Page S336]]

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

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

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

[[Page S337]]

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

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

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

B. The Articles Are Unconstitutionally Duplicitous

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

CONCLUSION

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

ENDNOTES

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

[[Page S338]]

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

[[Page S339]]

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

[[Page S340]]

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

[[Page S341]]

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

[[Page S342]]

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

[[Page S343]]

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

[[Page S344]]

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

[[Page S345]]

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

[[Page S346]]

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

[[Page S347]]

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

[[Page S348]]

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

[[Page S349]]

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

[[Page S350]]

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

[[Page S351]]

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

[[Page S352]]

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

[[Page S353]]

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

APPENDIX A

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

Memorandum of Telephone Conversation

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

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

[[Page S354]]

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

APPENDIX B:

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

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

APPENDIX C:

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

U.S. Department of Justice,

Office of Legal Counsel,

Washington, DC, January 19, 2020.

MEMORANDUM FOR PAT A. CIPOLLONE COUNSEL TO THE PRESIDENT

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

[[Page S355]]

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

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

[[Page S356]]

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

II.

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

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

[[Page S357]]

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

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

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

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

[[Page S359]]

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

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

[[Page S360]]

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

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

III.

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

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

[[Page S362]]

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

[[Page S363]]

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

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

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

IV.

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

[[Page S364]]

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

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

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

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

[[Page S367]]

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

APPENDIX D

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

U.S. Department of Justice,

Office of Legal Counsel,

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

[[Page S368]]

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

U.S. Department of Justice,

Office of Legal Counsel,

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

[[Page S369]]

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

U.S. Department of Justice,

Office of Legal Counsel,

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

[IN PROCEEDINGS BEFORE THE UNITED STATES SENATE]

TRIAL MEMORANDUM OF PRESIDENT DONALD J. TRUMP

January 20, 2020.
____

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

In re Impeachment of President Donald J. Trump

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

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

PREAMBLE

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

[[Page S370]]

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

ARTICLE I

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

ARTICLE II

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

[[Page S371]]

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

conclusion

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

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

In re Impeachment of President Donald J. Trump

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

INTRODUCTION

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

[[Page S372]]

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

ARGUMENT

I. President Trump must be Removed for Abusing his Power

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

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

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

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

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

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

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

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

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

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

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

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

[[Page S375]]

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

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

B. President Trump Received Fair Process

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

endnotes

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

[[Page S376]]

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

[[Page S377]]

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

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

Privileges of the Floor

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

Floor Privileges During Closed Session

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

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

On page S377, January 21, 2020, third column, the following
appears: Jeff Minear, Clerk for the Chief Justice

The online Record has been corrected to read: Jeff Minear,
Counselor to the Chief Justice

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

Program

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

____________________

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January 21, 2020 - Issue: Vol. 166, No. 12 — Daily Edition116th Congress (2019 - 2020) - 2nd Session

TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES; Congressional Record Vol. 166, No. 12 (Senate - January 21, 2020)

Text available as:

TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES; Congressional Record Vol. 166, No. 12
(Senate - January 21, 2020)