IN PROCEEDINGS BEFORE 

THE UNITED STATES SENATE 

TRIAL MEMORANDUM OF PRESIDENT DONALD J. TRUMP 

Jay Alan Sekulow 

Stuart Roth 

Andrew Ekonomou 

Jordan Sekulow 

Mark Goldfeder 

Benjamin Sisney 

Counsel to President Donald J. Trump

Pat A. Cipollone 

Counsel to the President

Patrick F. Philbin 

Michael M. Purpura 

Devin A. DeBacker 

Trent J. Benishek 

Eric J. Hamilton 

Office of White House Counsel 

 

January 20, 2020 
TABLE OF CONTENTS 

EXECUTIVE SUMMARY ............................................................................................................ 1

STANDARDS............................................................................................................................... 13

A. The Senate Must Decide All Questions of Law and Fact. .................................... 13

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. .................................................................. 13

1. Text and Drafting History of the Impeachment Clause ............................ 14

2. The President’s Unique Role in Our Constitutional Structure .................. 17

3. Practice Under the Impeachment Clause .................................................. 18

C. The Senate Cannot Convict Unless It Finds that the House Managers 

Have Proved an Impeachable Offense Beyond a Reasonable Doubt. .................. 20

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

of Impeachment. ................................................................................................... 21

PROCEDURAL HISTORY .......................................................................................................... 21

THE ARTICLES SHOULD BE REJECTED AND THE PRESIDENT SHOULD 

IMMEDIATELY BE ACQUITTED. ........................................................................................... 24

I. The Articles Fail to State Impeachable Offenses as a Matter Of Law. ............................. 24

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. ........................................................................................... 24

1. House Democrats’ Novel Theory of “Abuse of Power” as an 

Impeachable Offense Subverts Constitutional Standards and 

Would Permanently Weaken the Presidency. ........................................... 24

(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. ........................................................................... 25

(b) House Democrats’ Unprecedented Theory of 

Impeachable Offenses Defined by Subjective Intent 

Alone Would Permanently Weaken the Presidency. .................... 27

2. House Democrats’ Assertions that the Framers Particularly 

Intended Impeachment to Guard Against “Foreign 

Entanglements” and “Corruption” of Elections Are 

Makeweights that Distort History. ............................................................ 33

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. ......................................... 35
ii 

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. ................................................ 37

(a) Administration Officials Properly Refused to Comply 

with Subpoenas that Lacked Authorization from the 

House. ........................................................................................... 37

(i) A Delegation of Authority from the House Is 

Required Before Any Committee Can 

Investigate Pursuant to the Impeachment Power. ............. 37

(ii) Nothing in Existing House Rules Authorized 

Any Committee to Pursue an Impeachment 

Inquiry. .............................................................................. 39

(iii) More Than 200 Years of Precedent Confirm that 

the House Must Vote to Begin an Impeachment 

Inquiry. .............................................................................. 40

(iv) The Subpoenas Issued Before House Resolution 

660 Were Invalid and Remain Invalid Because 

the Resolution Did Not Ratify Them. ............................... 41

(b) The President Properly Asserted Immunity of His 

Senior Advisers from Compelled Congressional 

Testimony. .................................................................................... 43

(c) Administration Officials Properly Instructed Employees 

Not to Testify Before Committees that Improperly 

Excluded Agency Counsel. ........................................................... 46

2. Asserting Legal Defenses and Immunities Grounded in the 

Constitution’s Separation of Powers Is Not an Impeachable 

Offense. ..................................................................................................... 47

(a) Asserting Legal Defenses and Privileges Is Not 

“Obstruction.” ............................................................................... 47

(b) House Democrats’ Radical Theory of “Obstruction” 

Would Do Grave Damage to the Separation of Powers. .............. 48

(c) The President Cannot Be Removed from Office Based 

on a Difference in Legal Opinion. ................................................ 54

II. The Articles Resulted from an Impeachment Inquiry that Violated All 

Precedent and Denied the President Constitutionally Required Due Process. ................. 55

A. The Purported Impeachment Inquiry Was Unauthorized at the Outset 

and Compelled Testimony Based on Nearly Two Dozen Invalid 

Subpoenas. ............................................................................................................ 56
iii 

B. House Democrats’ Impeachment Inquiry Deprived the President of 

the Fundamentally Fair Process Required by the Constitution. ............................ 57

1. The Text and Structure of the Constitution Demand that the 

House Ensure Fundamentally Fair Procedures in an 

Impeachment Inquiry. ............................................................................... 58

(a) The Due Process Clause Requires Fair Process. ........................... 58

(b) The Separation of Powers Requires Fair Process. ........................ 60

(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. ......................................................................................... 61

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. ............................................. 62

3. The President’s Counsel Must Be Allowed to Be Present at 

Hearings, See and Present Evidence, and Cross-Examine All 

Witnesses. ................................................................................................. 66

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. ................................................................................................. 67

(a) Phase I: Secret Hearings in the Basement Bunker ........................ 67

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

HPSCI ........................................................................................... 69

(c) Phase III: The Ignominious Rubber Stamp from the 

Judiciary Committee ..................................................................... 70

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. ................................... 74

D. The Senate May Not Rely on a Factual Record Derived from a 

Procedurally Deficient House Impeachment Inquiry. .......................................... 75

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. ................................................................................................. 75

III. Article I Fails Because the Evidence Disproves House Democrats’ Claims. ................... 80

A. The Evidence Refutes Any Claim That the President Conditioned the 

Release of Security Assistance on an Announcement of Investigations 

by Ukraine. ............................................................................................................ 81

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

Wrong. ...................................................................................................... 81
iv 

2. President Zelenskyy and Other Senior Ukrainian Officials 

Confirmed There Was No Quid Pro Quo and No Pressure on 

Them Concerning Investigations. ............................................................. 84

3. President Zelenskyy and Other Senior Ukrainian Officials Did 

Not Even Know that the Security Assistance Had Been Paused. ............. 85

4. House Democrats Rely Solely on Speculation Built on Hearsay.

................................................................................................................... 87

5. The Security Assistance Flowed Without Any Statement or 

Investigation by Ukraine. .......................................................................... 89

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

Reproach. .................................................................................................. 89

B. The Administration Paused Security Assistance Based on Policy 

Concerns and Released It After the Concerns Were Satisfied. ............................. 90

1. Witnesses Testified That President Trump Had Concerns About 

Corruption in Ukraine. .............................................................................. 91

2. The President Had Legitimate Concerns About Foreign Aid 

Burden-Sharing, Including With Regard to Ukraine. ............................... 91

3. Pauses on Foreign Aid Are Often Necessary and Appropriate. ................ 93

4. The Aid Was Released After the President’s Concerns Were 

Addressed. ................................................................................................. 94

C. The Evidence Refutes House Democrats’ Claim that President Trump 

Conditioned a Meeting with President Zelenskyy on Investigations. ................... 96

1. A Presidential Meeting Occurred Without Precondition. ......................... 96

2. No Witness with Direct Knowledge Testified that President 

Trump Conditioned a Presidential Meeting on Investigations. ................ 97

D. House Democrats’ Charges Rest on the False Premise that There 

Could Have Been No Legitimate Purpose To Ask President Zelenskyy 

About Ukrainian Involvement in the 2016 Election and the BidenBurisma Affair. ..................................................................................................... 98

1. It Was Entirely Appropriate for President Trump To Ask About 

Possible Ukrainian Interference in the 2016 Election. .............................. 99

2. It Would Have Been Appropriate for President Trump To Ask 

President Zelenskyy About the Biden-Burisma Affair. .......................... 102

IV. The Articles Are Structurally Deficient and Can Only Result in Acquittal. .................. 107

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. ........................................................................................... 107

B. The Articles Are Unconstitutionally Duplicitous. .............................................. 109
v 

CONCLUSION ........................................................................................................................... 109

Appendix A: Memorandum of July 25 Telephone Conversation Between President 

Trump and President Zelenskyy 

Appendix B: Unauthorized Subpoenas Purportedly Issued Pursuant to the House’s 

Impeachment Power Before House Resolution 660 

Appendix C: Office of Legal Counsel, Memorandum Opinion Re: House Committees’ 

Authority to Investigate for Impeachment (Jan. 19, 2019) 

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
1 

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 

                                                            

1

 U.S. Const. art. II, § 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. 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). 
2 

“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 consensus9 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 

                                                            

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, § 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, 
3 

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 

                                                            

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, 
4 

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

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 

                                                            

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, § 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.cspan.org/video/?464684-1/speaker-pelosi-announces-formal-impeachment-inquiry-president-trump.
5 

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 

                                                            

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 § 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). 
6 

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 warrants33—along with incalculable damage to the Nation—the Mueller investigation 

                                                            

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), 
7 

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: 

                                                            

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. 
8 

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-allcosts strategy. 

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 Zelenskyy, 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 Zelenskyy, 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 Zelenskyy, 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. 

                                                            

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). 
9 

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 Zelenskyy 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 

                                                            

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 Zelenskyy 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). 
10 

“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 Zelenskyy 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 Zelenskyy 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. 

                                                            

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 
11 

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 

Zelenskyy. 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 

Zelenskyy 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 

                                                            

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. 
12 

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 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 

                                                            

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). 65 2 Joseph Story, Commentaries on the Constitution § 743 (1833). 66 The Federalist No. 66, at 402 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 
13 

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 

                                                            

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, § 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.
14 

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 

                                                            

73 See, e.g., Raoul Berger, Impeachment: The Constitutional Problems 86 (1973). 74 U.S. Const. art. II, § 4. 

75 Circuit City Stores v. Adams, 532 U.S. 105, 114–15 (2001) (quoting 2A N. Singer, Sutherland on Statutes and 

Statutory Construction § 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, § 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. § 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. 
15 

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 twice83 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 

                                                            

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, § 3, cl. 6; art. II, § 4. 

84 U.S. Const. art. I, § 3, cl. 7 (emphasis added). 

85 U.S. Const. art. I, § 3, cl. 6 (emphasis added). 

86 Id. 87 U.S. Const. art. III, § 2, cl. 3 (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . .”); 

U.S. Const. art. II, § 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. 
16 

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 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 

                                                            

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.”). 
17 

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 

                                                            

103 2 Joseph Story, Commentaries on the Constitution § 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.). 
18 

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 forces115 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 

                                                            

110 U.S. Const. art. II, § 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, § 3, cl. 6. 113 Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982). 114 U.S. Const. art. II, § 3. 115 U.S. Const. art. II, § 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). 
19 

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 

                                                            

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.”). 

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 
20 

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 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 

                                                            

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 
21 

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 Zelenskyy 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 

                                                            

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, § 2, cl. 5; id. at § 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. 
22 

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

                                                            

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.cspan.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.
23 

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 

                                                            

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. 
24 

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. 

                                                            

165 U.S. Const. art. I, § 3, cl. 6. 166 U.S. Const. art. II, § 4. 167 HJC Report at 44. 168 See id. at 48–53; Trial Mem. of U.S. House of Representatives at 10–11. 
25 

(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 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 

                                                            

169 See supra Standards Part B.1. 170 U.S. Const. art. II, § 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. 
26 

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 

                                                            

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 § 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 (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”). 
27 

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 

                                                            

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 § 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.”). 
28 

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 twice201 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” 

                                                            

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, § 4. 

199 Berger, supra note 174, at 118 (internal quotation marks omitted). 200 U.S. Const. art. II, § 4. 201 U.S. Const. art. I, § 3, cl. 6; art. II, § 4. 202 U.S. Const. art. I, § 3, cl. 7 (emphasis added). 203 U.S. Const. art. I, § 3, cl. 6 (emphasis added). 204 Id.
29 

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 cherrypicked 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 

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 

                                                            

205 U.S. Const. art. III, § 2, cl. 3 (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . .”); 

U.S. Const. art. II, § 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. 
30 

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-onsubjective-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 

                                                            

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 breakin. 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). 
31 

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 

                                                            

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. 
32 

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. 

                                                            

225 Id. at 99. 226 Id. 227 Id. at 103. 228 U.S. Const. art. II, § 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, § 1; cf. Joseph Story, Commentaries on the Constitution § 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”). 
33 

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 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 

                                                            

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”). 
34 

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 

                                                            

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, § 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 
35 

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 Zelenskyy. 

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 

                                                            

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, § 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 705–13); 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). 
36 

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 

                                                            

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/YPM4-

WCNX (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). 
37 

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. 

(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 

                                                            

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, § 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. 
38 

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

                                                            

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. § 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 § 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 § 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, selforganizing 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). 
39 

(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 limits265—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 

                                                            

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). 
40 

committees to use investigatory powers only pursuant to their legislative jurisdiction268

(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 

                                                            

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, § 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. § 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, § 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.
41 

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 

                                                            

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 § 2486, at 982. 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 §§ 2297, 

2300, 2321, 2323, 2342, 2364, 2385, 2444–2445, 2447–2448, 2469, 2504; VI Cannon’s Precedents of the House of 

Representatives §§ 498, 513, 544 (1936) (Cannon’s Precedents); 3 Deschler’s Precedents ch. 14, § 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 § 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 
42 

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 

                                                            

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/6W8E7KV8. 

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). 
43 

with well-established bipartisan constitutional protections.”292 It was Chairman 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 

                                                            

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). 
44 

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 

                                                            

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.”). 
45 

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 Zelenskyy’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 

                                                            

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 that do not implicate presidential decisionmaking”). 
46 

(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 

                                                            

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). 
47 

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 assert legal 

rights against defective subpoenas. They claimed that any “failure or refusal to comply with [a] 

                                                            

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). 
48 

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 

                                                            

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-à-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. 
49 

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 

                                                            

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. § 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-trumpimpeachment-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-thepress/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.”).
50 

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 

                                                            

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/H5BATKVX (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”). 
51 

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 

                                                            

345 H.R. Rep. No. 105-830, at 85. 346 Id. at 84 (quoting Rep. Bob Goodlatte). 347 Id. 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 
52 

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 

                                                            

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. 
53 

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 

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 

                                                            

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, supra 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. ¶ 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”). 
54 

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. 

(c) The President Cannot Be Removed from Office Based on a 

Difference in Legal Opinion. 

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 

                                                            

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). 
55 

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 

                                                            

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).
56 

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 onesided 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, § 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 

                                                            

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, § 2, cl. 5. 
57 

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 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 

                                                            

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 formalities . . . .” Broughton, 

supra note 383, at 289.
58 

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 

                                                            

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, § 4. 

389 U.S. Const. art. II, § 1, cl. 1. 

390 U.S. Const. art. I, § 3, cl. 7. 

391 See U.S. Const. art. II, § 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, § 4. 
59 

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 

                                                            

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, § 3, cl. 6. 
60 

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 

                                                            

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 Understanding, 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). 
61 

(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 shall have “sole Power to try all Impeachments.”419 

The Court held that the challenge presented a non-justiciable political question420—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-justiciable422 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 

                                                            

410 U.S. Const. art. I, § 2, cl. 5. 411 U.S. Const. art. I, § 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, § 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, § 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)). 
62 

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. 

                                                            

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). 
63 

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 

                                                            

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 § 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 § 2491, at 988 (Judge Thurston, 

1825); id. § 1736, at 97–98 (Vice President Calhoun, 1826); id. §§ 2365–2366 (Judge Peck, 1830–1831); id. § 2491, 

at 989 (Judge Thurston, 1837); id. § 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 § 2496, at 999 (Judge 

Watrous, 1858); id. § 2504, at 1008 (Judge Delahay, 1873). 436 6 Reg. Deb. 738 (1830) (statement of Rep. Spencer Pettis). 437 III Hinds’ Precedents § 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 § 2365, at 774.
64 

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 years444 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 

                                                            

443 Cong. Globe, 42d Cong., 3d Sess. 2122 (1873) (emphasis added); III Hinds’ Precedents § 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, 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 § 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 § 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 § 2520, at 1034 (Judge Ricks); id. § 2518, at 1031 (Judge 

Boarman); id. § 2516, at 1027 (Judge Blodgett); id. § 2445, at 904 (Sec’y of War Belknap); id. § 2514, at 1024 

(Consul-Gen. Seward); H.R. Rep. No. 43-626, 43d Cong. V (1874) (Judge W. Story, J.); III Hinds’ Precedents § 2507, 

at 1011 (Judge Durell); id. § 2512, at 1021 (Judge Busteed); Cong. Globe, 42d Cong., 3d Sess. 2124 (1873) (Judge 

Sherman); III Hinds Precedents § 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). 
65 

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 

                                                            

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, § 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 § 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, § 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, § 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). 
66 

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 statement457

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 truth,”462 “shed[ding] light on the witness’ perception, memory and narration”463 and 

                                                            

455 H.R. Res. 581 § 2(b); 3 Deschler’s Precedents ch. 14, § 6.5, at 2046; H.R. Res. 803 § 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 § 1367 (Chadbourn rev. 1974)). 462 Id. 463 Id. (quoting 4 J. Weinstein, Evidence ¶ 800[01] (1988)). 
67 

“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 

                                                            

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). 
68 

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 thenRepresentative 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 

                                                            

470 116th Congress Regulations for Use of Deposition Authority ¶ 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 § 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). 
69 

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 

                                                            

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. §§ 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, § 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 § 2(1). 485 H.R. Rep. No. 105-830, at 126–127; 3 Deschler’s Precedents ch. 14, § 6.5, at 2046–47.
70 

subpoena authority.486 

(c) Phase III: The Ignominious Rubber Stamp from the Judiciary 

Committee 

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 crossexamination 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 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 

                                                            

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. 
71 

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 

                                                            

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.”). 
72 

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 

response498 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 

                                                            

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 ¶ 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). 
73 

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 

                                                            

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. 
74 

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 Post513—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 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 Zelenskyy 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 

                                                            

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. 
75 

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 Zelenskyy, 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 

                                                            

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. 
76 

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 investigation525—

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 

countries527—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 

                                                            

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. 
77 

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 1867536 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 

                                                            

534 Id. at 10–11. 535 The House voted against President Johnson’s impeachment in December 1867. III Hinds’ Precedents § 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. § 2408, at 845. 536 Id. § 2400, at 823. 537 Id. § 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 § 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). 
78 

“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. 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-

                                                            

544 OIG FISA Report, supra note 543, at viii. 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. 
79 

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 

                                                            

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 
80 

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 Zelenskyy 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 Zelenskyy, 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 

Zelenskyy 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 

                                                            

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). 
81 

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 Zelenskyy 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 Zelenskyy. 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 Zelenskyy, noting that “Germany does almost 

nothing for you” and “[a] lot of the European countries are the same way.”563 President Zelenskyy 

acknowledged that European countries should be Ukraine’s biggest partner, but they surprisingly 

were not.564 

                                                            

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. 
82 

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 Zelenskyy was “surrounding [him]self with some of the same 

people.”566 President Zelenskyy 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 Zelenskyy.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 Biden.”573 The incident raised important issues for anti-

                                                            

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 Zelenskyy. 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 Zelenskyy 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_withh

olding_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 
83 

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 Zelenskyy. 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 Zelenskyy has publicly confirmed that he understood President 

Trump to be talking precisely about corruption. On the call, President Zelenskyy acknowledged 

that the incidents President Trump had raised highlighted “the issue of making sure to restore the 

honesty.”576 As President Zelenskyy later explained, he understood President Trump to be saying 

“we are tired of any corruption things.”577 President Zelenskyy 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 Zelenskyy’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 Zelenskyy 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 

                                                            

(“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 
84 

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 Zelenskyy 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 Zelenskyy has been crystal clear about this in his public statements. He 

                                                            

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. 

592 Press Release, President of Ukraine, Volodymyr Zelenskyy Had a Phone Conversation with President of the 
85 

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 

Zelenskyy 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 Zelenskyy 

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 Zelenskyy stated that he was “happy with the call.”597 

And Ms. Croft, who met with President Zelenskyy’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 Zelenskyy’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 Zelenskyy 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 

Zelenskyy 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 

                                                            

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/QVM3-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.cspan.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. 
86 

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 Zelenskyy 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 Zelenskyy Andriy Yermak told Bloomberg that President Zelenskyy 

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 Zelenskyy 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 

                                                            

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. 
87 

“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 Zelenskyy, 

texted Ambassador Volker to ask about the report.612 

The House Democrats’ entire theory falls apart because President Zelenskyy 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 

                                                            

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 Zelenskyy, 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. 
88 

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 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 

                                                            

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). 
89 

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 

Zelenskyy 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 

                                                            

620 Sondland Interview Tr. at 35:8-11. 621 Declaration of Ambassador Gordon D. Sondland ¶ 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. 
90 

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. 

                                                            

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). 
91 

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 BurdenSharing, 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 

                                                            

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, 151:21-

22. 

645 Hale Dep. Tr. at 82:18-22. 
92 

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 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 Zelenskyy on 

July 25.653 Senator Johnson similarly related that the President had shared concerns about burdensharing 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 

Zelenskyy on September 1, the Vice President reiterated that “President Trump wanted the 

                                                            

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-violatedspending-law (page 11); L. Cooper Dep. Tr. at 33 (Oct. 23, 2019) (summarizing follow-up questions from “a meeting 

with the President”). 

653 See supra Part III.A.1. 654 Nov. 18, 2019 Letter from Sen. Johnson, supra note 568, at 5. 
93 

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 Zelenskyy 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 

                                                            

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. 
94 

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 Zelenskyy secured a majority in the Ukrainian parliament and was able to 

begin reforms under his anti-corruption agenda. As Mr. Morrison explained, when Zelenskyy 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 

Zelenskyy’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 

Zelenskyy’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 Zelenskyy “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 

                                                            

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. 
95 

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 Zelenskyy “is one that he could trust.”680 The Vice President had met with 

President Zelenskyy 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 Zelenskyy “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 

                                                            

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 Zelenskyy 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 Zelenskyy “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. 
96 

“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 Zelenskyy 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 Zelenskyy 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 

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 Zelenskyy 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 

Zelenskyy 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 

                                                            

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. 
97 

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 Zelenskyy 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 

                                                            

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. 
98 

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 Zelenskyy 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 Zelenskyy: (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 

                                                            

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.
99 

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 Zelenskyy 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 Zelenskyy 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 

                                                            

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.
100 

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 selfgovernment, 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 record 

agreeing that the Ukrainian efforts to aid the Clinton campaign described above would be 

                                                            

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. § 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. 
101 

“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 

election731—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. 

                                                            

723 Tim Hains, Rep. Adam Schiff: Democrats Meeting Ukrainians “Different Degree Of Involvement” Than TrumpRussia, 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/S9LTLPCM. 

727 See U.S. Dep’t of Justice, Criminal Resource Manual § 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 § 278. 730 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). 731 H.R. Res. 755 art. I. 
102 

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 Zelenskyy was “surrounding [him]self with some of the 

same people.”735 President Zelenskyy 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 thencandidate 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 Zelenskyy About the Biden-Burisma Affair. 

House Democrats’ theory that there could not have been any legitimate basis for a President 

                                                            

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. 
103 

of the United States to raise the Biden-Burisma affair with President Zelenskyy 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

                                                            

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. 

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),
104 

 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 stepson 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 

                                                            

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 AntiCorruption 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 
105 

 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 Zelenskyy 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. 

                                                            

“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.”); WilliamsVindman 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 – 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-andzlochevskiy-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 
106 

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 Zelenskyy 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

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 Zelenskyy’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 

                                                            

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.
107 

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 twothirds 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 twothirds 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 

                                                            

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 § 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, § 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). 
108 

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 

                                                            

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 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 
109 

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 twothirds 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. 

                                                            

(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). 
110 

 Respectfully submitted, 

/s/ Jay Alan Sekulow /s/ Pat A. Cipollone 

Jay Alan Sekulow 

Counsel to President Donald J. Trump 

Washington, D.C. 

 Pat A. Cipollone 

Counsel to the President 

The White House 

January 20, 2020 
APPENDIX A: 

MEMORANDUM OF JULY 25, 2019 TELEPHONE CONVERSATION 

BETWEEN PRESIDENT TRUMP AND PRESIDENT ZELENSKYY 





APPENDIX B: 

UNAUTHORIZED SUBPOENAS PURPORTEDLY ISSUED PURSUANT TO THE 

HOUSE’S IMPEACHMENT POWER BEFORE HOUSE RESOLUTION 660 

 
B1 

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) 
Office of the Assistant Attorney General Washington, D.C. 20530 

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, § 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. 

 

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”). 

U.S. Department of Justice 

Office of Legal Counsel 
2 

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, § 15.2, 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. 3(m), 11. The House’s legislative power is distinct from its impeachment 

power. Compare U.S. Const. art. I, § 1, with id. art. I, § 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. § 1 (2019). Resolution 660’s direction, however, was entirely 

prospective. The resolution did not purport to ratify any previously issued subpoenas or even 

 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-ofthe-house. 

4 Impeachment Articles Referred on John Koskinen (Part III): Hearing Before the H. Comm. on the 

Judiciary, 114th Cong. 3 (2016). 
3 

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

I. 

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 § 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)). 

 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). 
4 

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 

 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 “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. 
5 

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-ResolutionforInvestigativeProcedures.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 Zelenskyy 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

 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, 
6 

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 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 

 

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). 
7 

of Representatives to exercise its Constitutional power to impeach Donald John Trump, 

President of the United States of America.” Resolution 660, § 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, § 1; id. art. I, § 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, § 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 § 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 

 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 
8 

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, § 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. 

A. 

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, § 1), which include the ability to pass bills (id. art. I, § 7, cl. 2) 

and to override presidential vetoes (id. art. I, § 7, cl. 3) in the process of enacting laws pursuant 

to Congress’s enumerated legislative powers (e.g., id. art. I, § 8), including the power to 

appropriate federal funds (id. art. I, § 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, § 5, cl. 1. And it has “the sole Power of Impeachment.” Id. art. I, § 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, § 2, cl. 5; id. art. I, § 3, cl. 7; id. art. II, § 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 

 

Precedents ch. 14, § 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. § 4(a); 165 Cong. Rec. E1357 (daily ed. Oct. 29, 

2019) (“Impeachment Inquiry Procedures in the Committee on the Judiciary”). 
9 

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 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
10 

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.” 
11 

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 

 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). 
12 

“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. 

B. 

Although the House of Representatives has “the sole Power of Impeachment,” U.S. 

Const. art. I, § 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, § 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, § 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 

 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 
13 

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 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 

 

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. 
14 

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. 

C. 

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-ofpowers 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

§ 2294, at 644–45 (1907). Thus, the committee “rose,” and the House itself took testimony. 

3 Hinds’ Precedents § 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
15 

§ 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 

 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 § 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). 
16 

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 § 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 

 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 

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). 
17 

resolution to the Judiciary Committee on February 4, 1867. Id. at 991; 3 Hinds’ Precedents

§ 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 § 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 § 2408, at 845. 

On February 21, 1868, the impeachment effort received new impetus when Johnson 

removed the Secretary of War without the 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 § 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 §§ 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 

 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 § 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 § 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). 
18 

Impeachment: An Overview at 40 (Feb. 1974) (“Legal Aspects of Impeachment”); 3 Deschler’s 

Precedents ch. 14, § 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 HardWorking 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, § 15.2, at 2172 (Parliamentarian’s Note). 
19 

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. § 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. § 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

 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). 
20 

The impeachment investigation of President Clinton. On September 9, 1998, 

Independent Counsel Kenneth W. Starr, acting under 28 U.S.C. § 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. § 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. § 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. 

§ 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 

(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. § 595(c) (emphasis 
21 

added). And the D.C. Circuit viewed the report as reflecting “information of the type described 

in 28 U.S.C. § 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 

 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). 
22 

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

§§ 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 § 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, § 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, § 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 
23 

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 § 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 

 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 § 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 § 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. 
24 

interposition of the constitutional power of this House.” 13 Annals of Cong. 850, 875–76 

(1804); 3 Hinds’ Precedents § 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 § 2342, at 715. At the conclusion of its investigation, the committee 

recommended that Chase, but not Peters, be impeached. 3 Hinds’ Precedents § 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. §§ 2343–44, at 

717–18. The committee recommended revised articles of impeachment against Chase, which 

were again adopted by the House. Id. § 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. § 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 

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 § 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 § 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 

 26 See, e.g., 3 Hinds’ Precedents § 2489, at 986 (William Van Ness, Mathias Tallmadge, and William 

Stephens, 1818); id. § 2490, at 987 (Joseph Smith, 1825); id. § 2364, at 774 (James Peck, 1830); id. § 2492, at 990 

(Alfred Conkling, 1830); id. § 2491, at 989 (Buckner Thurston, 1837); id. § 2494, at 993–94 (P.K. Lawrence, 1839); 

id. §§ 2495, 2497, 2499, at 994, 998, 1003 (John Watrous, 1852–60); id. § 2500, at 1005 (Thomas Irwin, 1859); id.

§ 2385, at 805 (West Humphreys, 1862); id. § 2503, at 1008 (anonymous justice of the Supreme Court, 1868); id.

§ 2504, at 1008–09 (Mark Delahay, 1872); id. § 2506, at 1011 (Edward Durell, 1873); id. § 2512, at 1021 (Richard 

Busteed, 1873); id. § 2516, at 1027 (Henry Blodgett, 1879); id. §§ 2517–18, at 1028, 1030–31 (Aleck Boarman, 

1890–92); id. § 2519, at 1032 (J.G. Jenkins, 1894); id. § 2520, at 1033 (Augustus Ricks, 1895); id. § 2469, at 949–

50 (Charles Swayne, 1903); 6 Clarence Cannon, Cannon’s Precedents of the House of Representatives of the United 

States § 498, at 685 (1936) (Robert Archbald, 1912); id. § 526, at 746–47 (Cornelius H. Hanford, 1912); id. § 527, at 

749 (Emory Speer, 1913); id. § 528, at 753 (Daniel Wright, 1914); id. § 529, at 756 (Alston Dayton, 1915); id.

§ 543, at 777–78 (William Baker, 1924); id. § 544, at 778–79 (George English, 1925); id. § 549, at 789–90 (Frank 

Cooper, 1927); id. § 550, at 791–92 (Francis Winslow, 1929); id. § 551, at 793 (Harry Anderson, 1930); id. § 552, at 

794 (Grover Moscowitz, 1930); id. § 513, at 709–10 (Harold Louderback, 1932); 3 Deschler’s Precedents ch. 14, 

§ 14.4, at 2143 (James Lowell, 1933); id. § 18.1, at 2205–06 (Halsted Ritter, 1933); id. § 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). 
25 

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 § 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, §§ 14.1414.16, at 

 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 § 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 § 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. § 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 § 2493, at 991–92 (Benjamin Johnson, 1833; no apparent 

investigation); id. § 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 § 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, § 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). 
26 

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, §§ 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); 

 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). 

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). 
27 

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, § 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 nonlegislative 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 
28 

inquiry” were not in support of such oversight. We therefore conclude that they were 

unauthorized. 

A. 

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. § 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 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 

 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. 
29 

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. § 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, § 1, at 2283; id. § 14, at 2385 n.12; id. § 16, at 

2403 & n.4. 
30 

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 

 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 § 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 § 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. §§ 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”). 
31 

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 § 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, 

§ 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, 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

 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 
32 

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, selfserving 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. 

B. 

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 

 

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. 
33 

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. § 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, 
34 

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. 

C. 

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, § 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. § 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 

 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[.]”). 
35 

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 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 

 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.” 
36 

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

 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 
37 

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. 

V. 

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, § 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 

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. § 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). 

g !l---r-
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 




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 

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