The Impeachment Report
Page 35
On October 8, White House Counsel Pat Cipollone—acting on behalf of President Trump—sent a letter to House Speaker Nancy Pelosi and the three investigating Committees confirming that President Trump directed his entire Administration not to cooperate with the House’s impeachment inquiry. Mr. Cipollone wrote: “President Trump cannot permit his Administration to participate in this partisan inquiry under these circumstances.”
Mr. Cipollone’s letter elicited immediate criticism from legal experts across the political spectrum. He advanced remarkably politicized arguments and legal theories unsupported by the Constitution, judicial precedent, and more than 200 years of history. If allowed to stand, the President’s defiance, as justified by Mr. Cipollone, would represent an existential threat to the nation’s Constitutional system of checks and balances, separation of powers, and rule of law.
The House’s Impeachment Inquiry of President Trump
In January, the House of Representatives voted to adopt its rules for the 116th Congress. These rules authorized House committees to conduct investigations, hold hearings, issue subpoenas for documents and testimony, and depose witnesses.34 Significantly, these authorities are similar to those adopted when Republicans controlled the House during previous Congresses.35
In April, Special Counsel Robert S. Mueller III, who was appointed by then-Deputy Attorney General Rod J. Rosenstein to investigate Russian interference in the 2016 U.S. Presidential election and potential obstruction of justice by President Trump, issued a two-volume report.36 In connection with that report, the Committee on the Judiciary began an inquiry into “whether to approve articles of impeachment with respect to the President.”37 The Judiciary Committee detailed its authority and intent to conduct this investigation in a series of reports, memoranda, and legal filings.38
On August 22, Rep. Jerrold Nadler, the Chairman of the Judiciary Committee, sent a letter requesting that the Permanent Select Committee on Intelligence, the Committee on Oversight and Reform, the Committee on Foreign Affairs, and the Committee on Financial Services provide “information, including documents and testimony, depositions, and/or interview transcripts” relevant to the “ongoing impeachment investigation relating to President Trump.”39
In September, the Intelligence Committee, the Oversight Committee, and the Foreign Affairs Committee sent letters requesting documents and interviews from the White House and the Department of State regarding the actions of President Trump, the President’s personal agent, Rudy Giuliani, and others to pressure Ukraine to launch investigations into former Vice President Joe Biden and a debunked conspiracy theory alleging Ukrainian interference in the 2016 election.40
On September 22, President Trump admitted to discussing former Vice President Biden and his son with the President of Ukraine during a telephone call on July 25.41
On September 24, Speaker Nancy Pelosi stated publicly that the House Committees were “moving forward” to “proceed with their investigations under that umbrella of impeachment inquiry.” She explained that, for the past several months, the House had been “investigating in our Committees and litigating in the courts, so the House can gather ‘all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity—approval of articles of impeachment.’”42
On September 25, the White House made public a Memorandum of Telephone Conversation of President Trump’s call with President Zelensky on July 25. As discussed in detail in Section I, this call record documented how President Trump directly and explicitly asked President Zelensky to launch investigations of former Vice President Biden and the 2016 election.43
Following the Speaker’s announcement and the release of the call record, the Intelligence Committee, the Oversight Committee, and the Foreign Affairs Committee continued their investigation, requesting documents and information, issuing subpoenas, and conducting interviews and depositions. The Committees made clear that this information would be “collected as part of the House’s impeachment inquiry and shared among the Committees, as well as with the Committee on the Judiciary as appropriate.”44
On October 31, the House voted to approve House Resolution 660, directing the 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.” The resolution set forth the process for holding public hearings, releasing deposition transcripts, presenting a report to the Judiciary Committee, holding proceedings within the Judiciary Committee, and submitting to the House of Representatives “such resolutions, articles of impeachment, or other recommendations as it deems proper.”45
President Trump’s Unprecedented Order Not to Comply
President Trump’s categorical and indiscriminate order and efforts to block witness testimony and conceal documentary evidence from the Committees investigating his conduct as part of the House’s impeachment inquiry stand in contrast to his predecessors and challenge the basic tenets of the Constitutional system of checks and balances.
Even before the House of Representatives launched its investigation regarding Ukraine, President Trump made numerous statements rejecting the fundamental authority of Congress to investigate his actions as well as those of his Administration. For example, on April 24, he stated, in response to Congressional investigations: “We’re fighting all the subpoenas.”46 Similarly, during a speech on July 23, he stated: “I have an Article II, where I have to the right to do whatever I want as president.”47
When the three investigating Committees began reviewing the President’s actions as part of the House’s impeachment inquiry, President Trump repeatedly challenged the investigation’s legitimacy in word and deed. President Trump’s rhetorical attacks appeared intended not just to dispute public reports of his misconduct, but to persuade the public that the House lacks authority to investigate the President and the inquiry is therefore invalid and fraudulent. For example, the President described the impeachment inquiry as:
“a COUP”48
“illegal, invalid, and unconstitutional”49
“an unconstitutional power grab”50
“Ukraine Witch Hunt”51
“a continuation of the Greatest and most Destructive Witch Hunt of all time”52
“a total Witch Hunt Scam by the Democrats”53
“bad for the country”54
“all a hoax”55
“the single greatest witch hunt in American history”56
“Democrat Scam”57
“just another Democrat Hoax”58
“a fraud against the American people”59
“A Witch Hunt Scam”60
“a con being perpetrated on the United States public and even the world”61
“ridiculous”62
“a continuation of the greatest Scam and Witch Hunt in the history of our Country”63
“Ukraine Hoax”64
“No Due Process Scam”65
“the phony Impeachment Scam”66
“the phony Impeachment Hoax”67
On September 26, President Trump argued that Congress should not be “allowed” to impeach him under the Constitution: “What these guys are doing—Democrats—are doing to this country is a disgrace and it shouldn’t be allowed. There should be a way of stopping it—maybe legally, through the courts.”68
A common theme of President Trump’s defiance has been his claims that Congress is acting in an unprecedented way and using unprecedented rules. However, the House has been following the same investigative rules that Republicans championed when they were in control and conducted aggressive oversight of previous A
dministrations.69
White House Counsel’s Letters Implementing the President’s Order
On October 8, White House Counsel Pat Cipollone sent a letter to Speaker Pelosi and the three Committees explaining that President Trump had directed his entire Administration not to cooperate with the House’s impeachment inquiry. He wrote:
Consistent with the duties of the President of the United States, and in particular his obligation to preserve the rights of future occupants of his office, President Trump cannot permit his Administration to participate in this partisan inquiry under these circumstances.70
On October 10, President Trump confirmed that Mr. Cipollone was indeed conveying his orders, stating:
As our brilliant White House Counsel wrote to the Democrats yesterday, he said their highly partisan and unconstitutional effort threatens grave and lasting damage to our democratic institutions, to our system of free elections, and to the American people. That’s what it is. To the American people. It’s so terrible. Democrats are on a crusade to destroy our democracy. That’s what’s happening. We will never let it happen. We will defeat them.71
Mr. Cipollone’s letter elicited immediate criticism from legal experts from across the political spectrum.72
Mr. Cipollone wrote a second letter to the Committees on October 18, declaring that the White House would refuse to comply with the subpoena issued to it for documents.73
On November 1—after the House had already issued several subpoenas to White House and other Executive Branch officials for testimony—the Trump Administration issued a new “Letter Opinion” from Assistant Attorney General Steven A. Engel to Mr. Cipollone. The Office of Legal Counsel opinion sought to extend the reach of the President’s earlier direction to defy Congressional subpoenas and to justify noncompliance by officials who could not plausibly be considered among the President’s closest advisors.
Mr. Engel’s opinion asserted that the House’s impeachment inquiry seeks information that is “potentially protected by executive privilege” and claimed the Committees’ deposition subpoenas are “invalid” and “not subject to civil or criminal enforcement” because the House’s long-standing deposition rules do not allow the participation of attorneys from the White House or other government agencies.74 These claims are without basis and unsupported by precedent.
The Letter Opinion cited statements from previous Presidents and Attorneys General that directly undercut the Administration’s position. For example, President James K. Polk, stated that in an impeachment inquiry the House had power to “penetrate into the most secret recesses of the Executive Departments.”75 In addition, Attorney General Robert H. Jackson, who later served on the Supreme Court, stated that “pertinent information would be supplied in impeachment proceedings, usually instituted at the suggestion of the Department and for the good of the administration of justice.”76
In his letters conveying the President’s direction, Mr. Cipollone advanced remarkably politicized arguments and legal theories unsupported by the Constitution, judicial precedent, and more than 200 years of history. These letters effectuated the President’s order and campaign to obstruct and thwart the House’s exercise of its sole power of impeachment under the Constitution. They are rebutted as follows:
The Impeachment Inquiry is Constitutional: According to Mr. Cipollone, “the President did nothing wrong,” and “there is no basis for an impeachment inquiry.”77 President Trump has repeatedly described his call with President Zelensky as “perfect.”78 Speaking for President Trump, Mr. Cipollone also asserted that the impeachment inquiry is “partisan and unconstitutional,” “a naked political strategy that began the day he was inaugurated, and perhaps even before,” and that it “plainly seeks to reverse the election of 2016 and to influence the election of 2020.”79
However, as this report details in Section I, Congress found abundant evidence of a scheme directed by the President to solicit foreign election interference by pressing the newly-elected President of Ukraine to announce publicly politically-motivated investigations to benefit President Trump’s own reelection campaign. Fundamentally, the Constitutional validity of an impeachment inquiry cannot depend on a President’s view that he did nothing wrong or on the political composition of the House. Such an extreme reimagining of the Constitution would render the Article I impeachment power meaningless and provide the President with power the Constitution does not grant him to thwart, manipulate, and stonewall an impeachment inquiry conducted by the House, including by concealing information of his own misconduct.80 Taken to its logical conclusion, the President’s position would eliminate the impeachment power in every year during which a political party other than the President’s is in power. Under this approach, the impeachments of President Clinton, President Nixon, and President Andrew Johnson would not have been permitted.81
The purpose of an impeachment inquiry is for the House to collect evidence to determine for itself whether the President may have committed an impeachable offense warranting articles of impeachment. Because the Constitution vests the House alone with “the sole Power of Impeachment,” it is not for the President to decide whether the House is exercising that power properly or prudently. The President is not free to arrogate the House’s power to himself—or to order across-the-board defiance of House subpoenas—based solely on his unilateral characterization of legislative motives or because he opposes the House’s decision to investigate his actions.
The Impeachment Inquiry is Properly Authorized: According to Mr. Cipollone, the “House has not expressly adopted any resolution authorizing an impeachment investigation” nor has it “delegated such authority to any of your Committees by rule.”82 However, nothing in either the Constitution or the House Rules requires the full House to vote to authorize an impeachment inquiry.83 The impeachment inquiries into Presidents Andrew Johnson, Nixon, and Clinton all began prior to the House’s consideration and approval of a resolution authorizing the investigations.84 The same is true of many judicial impeachments;85 indeed, numerous judges have been impeached without any prior vote of the full House authorizing a formal inquiry.86 Even though Mr. Cipollone’s argument is inherently invalid, the House has taken two floor votes that render it obsolete—the first on January 9 to adopt rules authorizing committees to conduct investigations, and the second on October 31 to set forth procedures for open hearings in the Intelligence Committee and for additional proceedings in the Judiciary Committee.87 Even following passage of House Resolution 660, whereby the House confirmed the preexisting and ongoing impeachment inquiry, the President and the White House Counsel, acting on the President’s behalf, have persisted in their obstructive conduct.
President Has No Valid Due Process Claims: According to Mr. Cipollone, “the Committees have not established any procedures affording the President even the most basic protections demanded by due process under the Constitution and by fundamental fairness,” and the Committees “have denied the President the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence,” and “to have counsel present.”88 Yet, there is no requirement that the House provide these procedures during an impeachment inquiry. The Constitution vests the House with “the sole Power of Impeachment,” and provides no constraints on how the House chooses to conduct its impeachment process.89 Nevertheless, Mr. Cipollone’s complaints are unfounded as the House has implemented procedural protections for the President in its exercise of its Constitutional power. House Resolution 660 authorizes procedures to “allow for the participation of the President and his counsel.”90 The Committee Report accompanying House Resolution 660 explains that these protections for the President are part of the Judiciary Committee hearing process and are “based on those provided during the Nixon and Clinton inquiries.” These procedures include “that the president and his counsel are invited to attend all hearings; the ability for the pres
ident’s counsel to cross-examine witnesses and object to the admissibility of testimony; and the ability of the president’s counsel to make presentations of evidence before the Judiciary Committee, including the ability to call witnesses.”91
Fact-Finding Was Appropriately Transparent: According to Mr. Cipollone, the Committees conducted their proceedings “in secret.”92 This argument fundamentally misconstrues and misapprehends the fact-gathering process required at this initial stage of the House’s impeachment inquiry. Unlike in the cases of Presidents Nixon and Clinton, the House conducted a significant portion of the factual investigation itself because no independent prosecutor was appointed to investigate President Trump’s conduct regarding Ukraine. Attorney General William P. Barr refused to authorize a criminal investigation into the serious allegations of misconduct, and even this decision was limited to possible violations of federal campaign finance laws.93 The investigative Committees proceeded consistent with the House’s rules of procedure and in keeping with investigative best practices, including the need to reduce the risk that witnesses may try to coordinate or align testimony. As the House explained in its report accompanying House Resolution 660:
The initial stages of an impeachment inquiry in the House are akin to those preceding a prosecutorial charging decision. Under this process, the House is responsible for collecting the evidence and, rather than weighing the question of returning an indictment, the Members of the House have the obligation to decide whether to approve articles of impeachment.94