The Impeachment Report

  As you know, and I’ve said this several times, we don’t talk about sources at this committee…. The good thing is, is that we have continued to have people come forward, voluntarily, to this committee and we want to continue that and I will tell you that that will not happen if we tell you who our sources are and people that come—come to the committee. 438

  Other Republican Members of Congress have opposed efforts to expose the whistleblower. For example, Senator Charles Grassley stated:

  This person appears to have followed the whistleblower protection laws and ought to be heard out and protected. We should always work to respect whistleblowers’ requests for confidentiality. Any further media reports on the whistleblower’s identity don’t serve the public interest—even if the conflict sells more papers or attracts clicks.439

  Senator Richard Burr, the Chair of the Senate Select Committee on Intelligence, affirmed that he would “never” want the identity of the whistleblower revealed and stated, “We protect whistleblowers. We protect witnesses in our committee.”440

  Senator Mitt Romney also called for support of the whistleblower’s rights, stating: “[W]histleblowers should be entitled to confidentiality and privacy, because they play a vital function in our democracy.”441

  SECTION II ENDNOTES

  1 U.S. Const. Art. I, § 2, cl. 5.

  2 Statement of George Mason, Madison Debates (July 20, 1787).

  3 McGrain v. Daugherty, 273 U.S. 135 (1927) (“We are of [the] opinion that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”); Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975) (“the power to investigate is inherent in the power to make laws”); Committee on the Judiciary v. McGahn, Case No. 1:19-cv-02379, Memorandum Opinion, Doc. No. 46 (D.D.C. Nov. 25, 2019) (“[T]he House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required.”). As of this report, an appeal is pending in the D.C. Circuit. No. 19-5331 (D.C. Cir.).

  4 Cf. Nixon v. Fitzgerald, 457 U.S. 731 (1982) (“Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment.”); Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (discussing in dicta the “inquiry into presidential impeachment” opened by the House Judiciary Committee regarding President Nixon and explaining, “The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source.”); In re Report & Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to House of Representatives, 370 F. Supp. 1219 (D.D.C. 1974) (“[I]t should not be forgotten that we deal in a matter of the most critical moment to the Nation, an impeachment investigation involving the President of the United States. It would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information.”). In 1833, Justice Joseph Story reasoned—while explaining why pardons cannot confer immunity from impeachment—that, “The power of impeachment will generally be applied to persons holding high office under the government; and it is of great consequence that the President should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, should they deserve it. The constitution has, therefore, wisely interposed this check upon his power.” Joseph L. Story, 3 Commentaries on the Constitution of the United States § 1501 (1873 ed., T.M. Cooley (ed.)).

  5 House Committee on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, 93rd Cong. (1974) (H. Rep. 93-1305).

  6 Statement of Rep. William Lyman, Annals of Congress, 4th Cong. 601 (1796).

  7 Department of Justice, Office of Legal Counsel, A Sitting President’s Amenability to Indictment and Criminal Prosecution (Oct. 16, 2000) (explaining that a President “who engages in criminal behavior falling into the category of ‘high Crimes and Misdemeanors’” is “always subject to removal from office upon impeachment by the House and conviction by the Senate”) (online at www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf).

  8 Id. (“Moreover, the constitutionally specified impeachment process ensures that the immunity [of a sitting President from prosecution] would not place the President ‘above the law.’”). President Trump’s personal lawyers have staked out the more extreme position that the President may not be investigated by law enforcement agencies while in office. For example, President Trump’s personal attorney asserted in court that the President could not be investigated by local authorities if he committed murder while in office. If Trump Shoots Someone on 5th Ave., Does He Have Immunity? His Lawyer Says Yes, New York Times (Oct. 23, 2019) (online at www.nytimes.com/2019/10/23/nyregion/trump-taxes-vance.html). A federal district court and appeals court rejected this argument. Trump v. Vance, 941 F.3d 631 (2nd Cir. 2019) (“presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President”); Trump v. Vance, 395 F. Supp. 3d 283 (S.D.N.Y. 2019) (calling the President’s claims of “unqualified and boundless” immunity from judicial process “repugnant to the nation’s governmental structure and constitutional values”). The case is currently being appealed.

  9 Barenblatt v. U.S, 360 U.S. 109 (1959).

  10 McGrain v. Daugherty, 273 U.S. 135 (1927) (“A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.”); Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975) (“the subpoena power may be exercised by a committee acting, as here, on behalf of one of the Houses”); Committee on the Judiciary v. Miers, 558 F. Supp. 2d 84 (D.D.C. 2008) (“In short, there can be no question that Congress has a right—derived from its Article I legislative function—to issue and enforce subpoenas, and a corresponding right to the information that is the subject of such subpoenas…. Congress’s power of inquiry is as broad as its power to legislate and lies at the very heart of Congress’s constitutional role. Indeed, the former is necessary to the proper exercise of the latter: according to the Supreme Court, the ability to compel testimony is ‘necessary to the effective functioning of courts and legislatures.’”) (citation omitted).

  11 U.S. Const. Art. I, § 5, cl. 2.

  12 Watkins v. United States, 354 U.S. 178 (1957).

  13 See Committee on the Judiciary v. Miers, 558 F. Supp. 2d 84 (D.D.C. 2008) (“Thus, federal precedent dating back as far as 1807 contemplates that even the Executive is bound to comply with duly issued subpoenas.”).

  14 Committee on the Judiciary v. McGahn, Case No. 1:19-cv-02379, Memorandum Opinion, Doc. No. 46 (D.D.C. Nov. 25, 2019). As of this report, an appeal is pending in the D.C. Circuit. No. 19-5331 (D.C. Cir.).

  15 18 U.S.C. § 1505.

  16 18 U.S.C. § 1001 (also prohibiting making “any materially false, fictitious, or fraudulent statement or representation” or making or using “any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry” in connection with a Congressional investigation).

  17 18 U.S.C. § 1512(b); See also 18 U.S.C. § 1515(a) (defining “official proceeding” to include “a proc
eeding before the Congress”).

  18 18 U.S.C. § 1512(d).

  19 See, e.g., 5 U.S.C. § 2302; 10 U.S.C. § 1034; P.L. 113-126.

  20 P.L. 116-6, § 713 (“No part of any appropriation contained in this or any other Act shall be available for the payment of the salary of any officer or employee of the Federal Government, who…prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress in connection with any matter pertaining to the employment of such other officer or employee or pertaining to the department or agency of such other officer or employee in any way, irrespective of whether such communication or contact is at the initiative of such other officer or employee or in response to the request or inquiry of such Member, committee, or subcommittee.”).

  21 House Committee on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, 93rd Cong. (1974) (H. Rep. 93-1305).

  22 House Committee on the Judiciary, Impeachment of William Jefferson Clinton, President of the United States, 105th Cong. (1998) (H. Rep. 105-830).

  23 The White House, The President’s Remarks Announcing Developments and Procedures to be Followed in Connection with the Investigation (Apr. 17, 1973). President Nixon initially stated that members of his “personal staff” would “decline a request for a formal appearance before a committee of the Congress,” but reversed course approximately one month later. The White House, Statement by the President, Executive Privilege (Mar. 12, 1973).

  24 See, e.g., Senate Select Committee on Presidential Campaign Activities, Testimony of John Dean, Watergate and Related Activities, Phase I: Watergate Investigation, 93rd Cong. (June 25, 1973); Senate Select Committee on Presidential Campaign Activities, Testimony of H.R. Haldeman, Watergate and Related Activities, Phase I: Watergate Investigation, 93rd Cong. (July 30, 1973); Senate Select Committee on Presidential Campaign Activities, Testimony of Alexander Butterfield, Watergate and Related Activities, Phase I: Watergate Investigation, 93rd Cong. (July 16, 1973); Senate Select Committee on Presidential Campaign Activities, Testimony of John Ehrlichman, Watergate and Related Activities, Phase I: Watergate Investigation, 93rd Cong. (July 24, 1973).

  25 See House Committee on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, 93rd Cong. (1974) (H. Rep. 93-1305).

  26 Id.

  27 Id. (quoting letter from Chairman Peter W. Rodino, Jr., House Committee on the Judiciary, to President Richard M. Nixon (May 30, 1974)).

  28 H.R. Jour., 29th Cong., 1st Sess., 693 (Apr. 20, 1846).

  29 Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition and House Select Committee to Investigate Covert Arms Transactions with Iran, Testimony of Oliver North, Iran-Contra Investigation: Joint Hearings Before the House Select Committee to Investigate Covert Arms Transactions with Iran and the Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Oppositions, 100th Cong. (July 7, 1987); Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition and House Select Committee to Investigate Covert Arms Transactions with Iran, Testimony of John Poindexter, Iran-Contra Investigation: Joint Hearings Before the House Select Committee to Investigate Covert Arms Transactions with Iran and the Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Oppositions, 100th Cong. (July 15, 1987).

  30 Committee on the Judiciary v. McGahn, Civ. No. 1:19-cv-02379, Memorandum Opinion, Doc. No. 46 (D.D.C. Nov. 25, 2019). As of this report, an appeal is pending in the D.C. Circuit. No. 19-5331 (D.C. Cir.).

  31 Committee on Government Reform, Democratic Staff, Congressional Oversight of the Clinton Administration (Jan. 17, 2006) (online at https://wayback.archive-it.org/4949/20141031200116/http://oversight-archive.waxman.house.gov/documents/20060117103516-91336.pdf) (noting that Republican Dan Burton, Chairman of the Committee on Government Reform, deposed 141 Clinton Administration officials during his tenure).

  32 Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi, Final Report of the Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi, 114th Cong. (2016) (H. Rep. 114-848) (noting that the Select Committee interviewed or received testimony from 107 people—none of whom was instructed not to appear—including 57 current and former State Department officials such as Secretary of State Hillary Clinton, Chief of Staff and Counselor to the Secretary of State Cheryl Mills, Deputy Chief of Staff and Director of Policy Planning, Jacob Sullivan, and Deputy Chief of Staff for Operations Huma Abedin; 24 Defense Department officials such as Secretary Leon Panetta and General Carter Ham; and 19 Central Intelligence Agency officials such as Director David Petraeus and former Deputy Director Michael Morell).

  33 Id. (including productions of 71,640 pages of State Department documents, 300 pages of CIA intelligence analyses, 200 pages of FBI documents, 900 pages of Defense Department documents, and 750 pages of National Security Agency documents).

  34 See, e.g., House rule X, clause 2(a) (assigning “general oversight responsibilities” to committees); House Rule XI, clause 2(m) (authorizing Committees to “hold such hearings as it considers necessary” and 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 it considers necessary”); H.Res. 6 (2019) (granting deposition authority to committees); 116th Congress Regulations for Use of Deposition Authority, Congressional Record (Jan. 25, 2019) (establishing procedures for committee depositions).

  35 See, e.g., House Rules (2017); H.Res. 5 (2017); 115th Congress Staff Deposition Authority Procedures, Congressional Record (Jan. 13, 2017).

  36 Special Counsel Robert S. Mueller III, Department of Justice, Report on The Investigation Into Russian Interference In The 2016 Presidential Election, Vol. I (March 2019) (online at www.justice.gov/storage/report.pdf); Special Counsel Robert S. Mueller, III, Department of Justice, Report on The Investigation Into Russian Interference In The 2016 Presidential Election, Vol. II (March 2019) (online at www.justice.gov/storage/report_volume2.pdf).

  37 See H. Res. 430; see also H. Rep. 116-105 (2019) (the purposes of the Judiciary Committee’s 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,” including “whether to approve articles of impeachment with respect to the President or any other Administration official”).

  38 See Letter from Chairman Jerrold Nadler, House Committee on the Judiciary, to Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, Chairman Maxine Waters, House Committee on Financial Services, Chairman Elijah E. Cummings, House Committee on Oversight and Reform, and Chairman Eliot L. Engel, House Committee on Foreign Affairs (Aug. 22, 2019) (online at https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/FiveChairsLetter8.22.pdf).

  39 Id.

  40 Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Pat A. Cipollone, Counsel to the President, The White House (Sept. 9, 2019) (online at https://intelligence.house.gov/uploadedfiles/ele_schiff_cummings_letter_to_cipollone_on_ukraine.pdf); Letter from Chairman Eliot L. Engel, House Committee on Foreign Affairs, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform, to Secretary Michael R. Pompeo, Department of State (Sept. 9, 2019) (online at https://intelligence.house.gov/uploadedfiles/ele_schiff_cummings_letter_to_sec_pompeo_on_ukraine.pdf); Letter from Chairman Eliot L. Engel, Committee on Foreign Affair
s, Chairman Adam B. Schiff, Permanent Select Committee on Intelligence, and Chairman Elijah E. Cummings, Committee on Oversight and Reform, to Secretary Michael R. Pompeo, Department of State (Sept. 13, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2019-09-13.EEC%20ELE%20Schiff%20re%20Ukraine.pdf).

  41 The White House, Remarks by President Trump Before Marine One Departure (Sept. 22, 2019) (online at www.whitehouse.gov/briefings-statements/remarks-president-trump-marine-one-departure-66/) (“We had a great conversation. The conversation I had was largely congratulatory. It was largely corruption—all of the corruption taking place. It was largely the fact that we don’t want our people, like Vice President Biden and his son, creating to the corruption already in the Ukraine.”).

  42 Speaker of the House Nancy Pelosi, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019) (online at www.speaker.gov/newsroom/92419-0).

  43 The White House, Memorandum of Telephone Conversation (July 25, 2019) (online at www.whitehouse.gov/wp-content/uploads/2019/09/Unclassified09.2019.pdf).

  44 See, e.g., Letter from Chairman Elijah E. Cummings, House Committee on Oversight and Reform, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, and Chairman Eliot L. Engel, House Committee on Foreign Affairs, to Mick Mulvaney, Acting Chief of Staff, The White House (Oct. 4, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-10-04.EEC%20Engel%20Schiff%20to%20Mulvaney-WH%20re%20Subpoena.pdf).

  45 H. Res. 660 (2019).

  46 Trump Vows Stonewall of ‘All’ House Subpoenas, Setting Up Fight Over Powers, New York Times (Apr. 24, 2019) (online at www.nytimes.com/2019/04/24/us/politics/donald-trump-subpoenas.html).