Report of the Committee on the Judiciary, House of Representatives: Impeachment of Donald J. Trump, President of the United States/Article II: Obstruction of Congress

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Report of the Committee on the Judiciary, House of Representatives: Impeachment of Donald J. Trump, President of the United States
Article II: Obstruction of Congress
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Article II: Obstruction of Congress

I.The Second Article of Impeachment

The Constitution provides that the House of Representatives "shall have the sole Power of Impeachment" and that the President "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." In his conduct of the office of President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed—Donald J. Trump has directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to its "sole Power of Impeachment". President Trump has abused the powers of the Presidency in a manner offensive to, and subversive of, the Constitution, in that:

The House of Representatives has engaged in an impeachment inquiry focused on President Trump's corrupt solicitation of the Government of Ukraine to interfere in the 2020 United States Presidential election. As part of this impeachment inquiry, the Committees undertaking the investigation served subpoenas seeking documents and testimony deemed vital to the inquiry from various Executive Branch agencies and offices, and current and former officials.

In response, without lawful cause or excuse, President Trump directed Executive Branch agencies, offices, and officials not to comply with those subpoenas. President Trump thus interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, and assumed to himself functions and judgments necessary to the exercise of the "sole Power of Impeachment" vested by the Constitution in the House of Representatives.

President Trump abused the powers of his high office through the following means:

(1) Directing the White House to defy a lawful subpoena by withholding the production of documents sought therein by the Committees.

(2) Directing other Executive Branch agencies and offices to defy lawful subpoenas and withhold the production of documents and records from the Committees—in response to which the Department of State, Office of Management and Budget, Department of Energy, and Department of Defense refused to produce a single document or record.

(3) Directing current and former Executive Branch officials not to cooperate with the Committees—in response to which nine Administration officials defied subpoenas for testimony, namely John Michael "Mick" Mulvaney, Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston Wells Griffith, Russell T. Vought, Michael Duffey, Brian McCormack, and T. Ulrich Brechbuhl.

These actions were consistent with President Trump's previous efforts to undermine United ​States Government investigations into foreign interference in United States elections.

Through these actions, President Trump sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct, as well as the unilateral prerogative to deny any and all information to the House of Representatives in the exercise of its "sole Power of Impeachment". In the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate "high Crimes and Misdemeanors". This abuse of office served to cover up the President's own repeated misconduct and to seize and control the power of impeachment—and thus to nullify a vital constitutional safeguard vested solely in the House of Representatives.

In all of this, President Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

Wherefore, President Trump, by such conduct, has demonstrated that he will remain a threat to the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

II.Introduction

This Nation has no kings. Unlike a monarch, whose every word is law, the President of the United States answers to the Constitution and the American people. He ordinarily does so through elections, legislative oversight, judicial review, and public scrutiny. In truly extraordinary cases, however, the Constitution empowers the House of Representatives to hold the President accountable through its "sole Power of Impeachment."[1] This power is not to be exercised lightly. It is one of the greatest powers in the Constitution. But when the House, in its own independent judgment, has cause to suspect the President of committing "high Crimes and Misdemeanors," it has the constitutional right and duty to investigate his conduct.[2] As Presidents, legislators, and judges have long recognized, that authority inheres in the "sole Power of Impeachment," which would be undermined if the House lacked a thorough power of inquiry.

In the history of the Republic, no President has ever claimed the unilateral prerogative to categorically and indiscriminately defy a House impeachment inquiry. Nor has any President ever directed his administration to do so. On the contrary, every President to address the issue has acknowledged that Congress possesses a broad and penetrating power of inquiry when investigating grounds for impeachment. Even President Richard M. Nixon, who resisted full personal compliance ​with House subpoenas, instructed his staff to testify voluntarily in the Senate Watergate inquiry: "All members of the White House Staff will appear voluntarily when requested by the committee. They will testify under oath, and they will answer fully all proper questions."[3]

Presidents wield extraordinary power, but they do so under law. That law provides the House with sole authority to impeach Presidents. It does not allow Presidents to dictate the terms on which they will be impeached or investigated for impeachable offenses, to order subordinates to break the law by ignoring subpoenas, or to use executive power to orchestrate a cover up. The Constitution confirms that the House alone, and not the President, determines what documents and testimony are relevant to its exercise of the impeachment power.

If allowed to stand, President Trump's actions will undermine the Constitution's defenses against a tyrannical President. Over the past months, the House has engaged in an impeachment inquiry focused on President Trump's corrupt solicitation and inducement of Ukrainian interference in the 2020 United States Presidential Election. As part of this inquiry, the Investigating Committees served subpoenas on various Executive Branch agencies and offices, as well as current and former officials, seeking documents and testimony relevant to the investigation. President Trump responded by directing all Executive Branch agencies, offices, and officials not to cooperate with the impeachment inquiry. In so doing, he arrogated to himself the power to determine when and how an impeachment inquiry should be carried out. President Trump's direction has no precedent in American history. His order to the Executive Branch was categorical and indiscriminate. It did not allow for any case-by-case weighing of privacy or national security interests, nor did it permit any efforts at accommodation or compromise. Through his order, the President slammed the door shut.

Following President Trump's direction, and at his behest, the White House, the Department of State under Secretary Michael R. Pompeo, the Office of Management and Budget under Acting Director Russell T. Vought, the Department of Energy under Secretary James Richard "Rick" Perry, and the Department of Defense under Secretary Mark T. Esper refused to produce a single document or record in response to Congressional subpoenas. Moreover, adhering to President Trump's direction, nine Administration officials defied subpoenas for testimony, namely John Michael "Mick" Mulvaney, Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston Wells Griffith, Russell T. Vought, Michael Duffey, Brian McCormack, and T. Ulrich Brechbuhl. In directing these agencies, offices, and officials to disobey subpoenas, President Trump prevented Congress from obtaining additional evidence highly pertinent to the House's impeachment inquiry. He did so, moreover, through an official direction lacking any valid cause or excuse—and that strikingly reflected his previous pattern of obstructing United States government investigations into foreign interference in our elections. By engaging in this conduct, President Trump grossly abused his power and sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own wrongdoing.

Despite President Trump's obstruction, the Investigating Committees gathered overwhelming evidence of his misconduct from courageous public servants who were willing to follow the law, comply with subpoenas, and tell the truth. On the basis of that formidable body of evidence, the House ​Committee on the Judiciary recommends the adoption of the First Article of Impeachment.

Yet there can be no doubt that President Trump's blanket defiance of Congressional subpoenas, and his direction that many others defy such subpoenas, substantially interfered with the House's efforts to fulfill its constitutional responsibilities. "If left unanswered, President Trump's ongoing effort to thwart Congress' impeachment power risks doing grave harm to the institution of Congress, the balance of power between our branches of government, and the Constitutional order that the President and every Member of Congress have sworn to protect and defend."[4]

President Trump's obstruction of Congress does not befit the leader of a democratic society. It calls to mind the very claims of royal privilege against which our Founders rebelled. Nor is President Trump's obstruction mitigated by a veneer of legal arguments. Some conclusions are so obviously wrong that their premises cannot be taken seriously; that is true of President Trump's theory that he sets the terms of his own impeachment. Through this conduct, President Trump has shown his rejection of checks and balances. A President who will not abide legal restraint or supervision is a President who poses an ongoing threat to our liberty and security.

The Second Article of Impeachment reflects the judgment of the Committee that President Trump committed "high Crimes and Misdemeanors" in directing the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House pursuant to its "sole Power of Impeachment." As the Article explains: "This abuse of office amounts to an effort by the President to seize and control the power of impeachment—and thus to nullify a vital constitutional safeguard vested solely in the House of Representatives."[5]

III.President Trump Committed "High Crimes and Misdemeanors" in Directing Categorical and Indiscriminate Defiance of the House Impeachment Inquiry

Under our Constitution, the House is empowered to investigate grounds for impeachment and the President is required to cooperate with such investigations. Given the impeachment power's central role in protecting the Nation from Presidential wrongdoing—and as confirmed by historical practice and precedent—Congressional investigative authority is at its constitutional zenith during an impeachment inquiry. When the House takes up its "sole Power of Impeachment," the overwhelming presumption is that its subpoenas must be and will be obeyed, including by the President and all other recipients in the Executive Branch. In such cases, the House acts not only pursuant to its ordinary ​legislative powers, but also serves as a "grand inquest of the nation.'"[6] It is therefore presumed that "all the archives and papers of the Executive Departments, public or private, would be subject to . . . inspection" and "every facility in the power of the Executive [would] be afforded to enable [the House] to prosecute the investigation."[7]

In contravention of those settled principles, and in violation of the assignment of powers under the Constitution, President Trump has defied a subpoena served on the White House. He has also directed other agencies, offices, and officials across the Executive Branch to violate their own obligations under the law. His direction has been complete and wholly unqualified in nature. Rather than undertake a process of dialogue and accommodation, the President has stonewalled all investigative prerogatives and interests held by the House in an impeachment inquiry. Although the Justice Department and individual Executive Branch officials have additionally raised specific objections to certain subpoenas—none of which have merit—President Trump's general direction that the Executive Branch obstruct Congress has rendered those objections practically irrelevant. President Trump's unprecedented conduct thus raises a single question: Is it an impeachable offense under the Constitution for the President to direct the categorical and indiscriminate defiance of subpoenas issued pursuant to a House impeachment inquiry?

The Committee has undertaken a thorough survey of relevant authorities and concludes that the answer is plainly "yes." This is not a close case. President Trump has asserted and exercised the unilateral prerogative to direct complete defiance of every single impeachment-related subpoena served on the Executive Branch. He has purported to justify this obstruction by attacking the motives, procedures, and legitimacy of the House impeachment inquiry—in overt violation of our Constitution, which vests the House (and not the President) with the "sole Power of Impeachment."

Simply stated, these are not judgments for the President to make. His position would place Presidents in control of a power meant to restrain their own abuses. That is not what the Constitution provides. As Judiciary Committee Chairman Peter W. Rodino correctly explained to President Nixon in May 1974, "[u]nder the Constitution it is not within the power of the President to conduct an inquiry into his own impeachment, to determine which evidence, and what version or portion of that evidence, is relevant and necessary to such an inquiry. These are matters which, under the Constitution, the House has the sole power to determine."[8]

President Trump's direction to obstruct the House impeachment inquiry is thus grossly incompatible with, and subversive of, the Constitution. It marks a dangerous step toward debilitating the Impeachment Clause and unraveling the Framers' plan. This claim of Presidential power is also recognizably wrong—as every President in American history, except President Trump, has in fact recognized. Through his conduct, President Trump's has revealed himself as a continuing threat to ​constitutional governance if he remains in office. It is one thing for a President to use harsh rhetoric in criticizing an impeachment inquiry. It is something else entirely for that President to declare such an inquiry "illegitimate" and use his official powers to stonewall the House.[9] A President who declares himself above impeachment is a President who sees himself as above the law. That President is a monarch in all but name and imperils our democracy.[10]

To explain our judgment that President Trump's conduct constitutes "high Crimes and Misdemeanors," we first describe the House's power of inquiry, as well as its power to investigate grounds for impeachment. We next confirm the Committee's assessment from President Nixon's case that obstruction of a House impeachment inquiry is an impeachable offense. Finally, we apply the law to President Trump's conduct, consider his various excuses, and assess whether he remains a continuing threat to constitutional governance and democracy if allowed to remain in office.

A.The House's Power of Inquiry

"[L]egislative subpoenas are older than our country itself."[11] They originated in the English Parliament, "when that body, as part of its campaign to 'challenge the absolute power of the monarch,' asserted 'plenary authority' to hold offending parties in contempt."[12] By the late 17th century, "[t]he privileges and powers of the [House of] Commons"—which include the linked powers of contempt and inquiry—"were naturally assumed to be an incident of the representative assemblies of the Thirteen Colonies."[13] In part for that reason, "[a]fter the Revolutionary War and the Constitutional Convention, the U.S. Congress wasted little time in asserting its power to use compulsory process to investigate matters of national—and potentially legislative—importance."[14] Such Congressional oversight activity was grounded in Article I of the Constitution, which grants Congress "[a]ll legislative Powers,"[15] and authorizes "[e]ach House [to] determine the Rules of its Proceedings."[16] Through these provisions, the Constitution vests the House with a "power of inquiry," including "process to ​enforce it," as an "essential and appropriate auxiliary to the legislative function."[17]

"So long as the [House] is investigating a matter on which Congress can ultimately propose and enact legislation, the [House] may issue subpoenas in furtherance of its power of inquiry."[18] And the House's constitutional authority "to conduct investigations" is "broad."[19] "It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes," "[i]t includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them," and "[i]t comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste."[20] Congress may not usurp the constitutional functions of other branches of government, violate individual rights, engage in law enforcement, or investigate topics over which it cannot legislate.[21] But apart from these narrow limitations, "[a] legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress."[22] Moreover, the ultimate outcome of oversight need not be apparent from the outset for it to be proper: "The very nature of the investigative function—like any research—is that it takes the searchers up some 'blind alleys' and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result."[23]

Consistent with Congress's role in checking the Executive Branch, "Presidents, too, have often been the subjects of Congress's legislative investigations."[24] "Historical examples stretch far back in time and broadly across subject matters," ranging from investigations of contract fraud under President Andrew Jackson, to allegations that President Abraham Lincoln was mishandling military strategy during the Civil War, to charges that President Franklin D. Roosevelt had incited the Japanese into bombing Pearl Harbor, to President Nixon and the Watergate scandal, to President Ronald W. Reagan's involvement in the Iran-Contra Affair, to President William J. Clinton and Whitewater, to the Benghazi investigation under President Barack H. Obama.[25]

As the Supreme Court has observed, "[w]ithout the power to investigate—including of course the authority to compel testimony, either through its own processes or through judicial trial—Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and ​effectively."[26] Presidential obstruction of legislative subpoenas thus undermines Congress's constitutional function, offends the separation of powers, and effectively places the President above the law.

B.The House's Power to Investigate Grounds for Impeachment

In light of the impeachment power's central role in our system of checks and balances, the House's investigative authority is at its peak during an impeachment inquiry. All three branches of the federal government have repeatedly confirmed this point.

When the Framers authorized the House to impeach Presidents, they necessarily empowered it to obtain and examine evidence deemed necessary to the exercise of that constitutional responsibility. This understanding follows directly from the Constitutional Convention. There, several delegates opposed including an impeachment power in the Constitution. They warned that it would be "destructive of [the executive's] independence."[27] The majority of delegates agreed that allowing impeachment would affect the separation of powers—but welcomed that result. As George Mason declared, "[n]o point is of more importance than that the right of impeachment should be continued."[28] Alexander Hamilton, in turn, later observed that "the powers relating to impeachments" are "an essential check in the hands of [Congress] upon the encroachments of the executive."[29] Many Americans in this period agreed that impeachment played an important role; it would keep Presidents in line and protect the Nation from abuse, betrayal, or corruption. Thus, even as the Constitution created a powerful presidency, it included a safety valve for emergencies.

Yet the impeachment power could not serve that role if the House were unable to investigate the facts necessary to make an informed impeachment determination, or if the President could liberally obstruct such efforts. This was recognized early on. In 1796, the House requested that President George Washington provide it with sensitive diplomatic materials relating to the Jay Treaty. President Washington famously declined this request on the ground that it exceeded the House's role and intruded upon his executive functions. But in that same letter, President Washington agreed that impeachment would change his calculus: "It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment, which the resolution has not expressed."[30] In the ensuing House debates, one Member noted that President Washington had "admitted, by implication, that where the House expresses an intention to impeach, the right to demand from the Executive all papers and information in his possession belongs ​to it."[31] And President Washington was right, because "the sole Power" of impeachment includes "a right to inspect every paper and transaction in any department, otherwise the power of impeachment could never be exercised with any effect."[32]

In 1833, Supreme Court Justice Joseph Story emphasized the House's broad investigatory power in impeachments—and the importance of not permitting the President to obstruct such inquiries. In his influential Commentaries on the Constitution of the United States, Justice Story addressed the interaction between impeachment and Presidential pardons. While doing so, he pointedly observed that "[t]he power of impeachment will generally be applied to persons holding high offices under the government; and it is of great consequence that the President should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment."[33]

In 1842, amid ongoing strife between the House and President John Tyler, the House took substantial steps toward an impeachment inquiry.[34] During a dispute with President Tyler over the production of documents—which he ultimately provided—a Committee of the House confirmed its robust understanding of the power to investigate impeachable offenses:

The House of Representatives has the sole power of impeachment. The President himself in the discharge of his most independent functions, is subject to the exercise of this power which implied the right of inquiry on the part of the House to the fullest and most unlimited extent. ... If the House possess the power to impeach, it must likewise possess all the incidents of that power—the power to compel the attendance of all witnesses and the production of all such papers as may be considered necessary to prove the charges on which impeachment is founded. If it did not, the power of impeachment conferred upon it by the Constitution would be nugatory. It could not exercise it with effect.[35]

Consistent with this precedent, President James K. Polk "cheerfully admitted" in 1846 the right of the House to investigate the conduct of all government officers with a view to exercising its impeachment power.[36] "In such a case," he wrote:

[T]he safety of the Republic would be the supreme law, and the power of the ​House in the pursuit of this object would penetrate into the most secret recesses of the Executive Departments. It could command the attendance of any and every agent of the Government, and compel them to produce all papers, public or private, official or unofficial, and to testify on oath to all facts within their knowledge.[37]

President Andrew Johnson conducted himself in accordance with this understanding when the Judiciary Committee undertook an initial inquiry into grounds for impeachment. During that investigation, which occurred in 1867, the Committee obtained executive and Presidential records; interviewed cabinet officers and Presidential aides about cabinet meetings and conversations with the President; and examined a number of Presidential decisions, including Presidential pardons, the issuance of executive orders, the implementation of Congressional Reconstruction, and the vetoing of legislation.[38] Multiple witnesses, moreover, answered questions about the opinions of the President, statements made by the President, and advice given to the President.[39] Significantly, as this Committee has previously summarized, "[t]here is no evidence that [President] Johnson ever asserted any privilege to prevent disclosure of presidential conversations to the Committee, or failed to comply with any of the Committee's requests."[40]

With only a few exceptions, invocations of the impeachment power largely subsided from 1868 to 1972.[41] Yet even in that period, while objecting to acts of ordinary legislative oversight, Presidents Ulysses S. Grant, S. Grover Cleveland, and Theodore Roosevelt each noted that Congress could obtain a broader set of Executive Branch documents in an impeachment inquiry.[42]

In 1973 and 1974, this Committee investigated whether President Nixon had committed "high Crimes and Misdemeanors." During that period, the Senate also investigated events relating to the Watergate break-in and its aftermath. Faced with these inquiries, President Nixon allowed senior administration officials to testify voluntarily in the Senate. As a result, many senior White House officials testified, including White House Counsel John W. Dean III, White House Chief of Staff H.R. "Bob" Haldeman, Deputy Assistant to the President Alexander P. Butterfield, and Chief Advisor to the ​President for Domestic Affairs John D. Ehrlichman.[43] President Nixon also produced numerous documents and records in response to Congressional subpoenas, including more than 30 transcripts of White House recordings and notes from meetings with the President.[44] This was consistent with prior practice. As the Judiciary Committee explained at the time: "Before the current inquiry, sixty-nine Federal officials had been the subject of impeachment investigations. With the possible exception of one minor official who invoked the privilege against self-incrimination, not one of them challenged the power of the committee conducting the investigation to compel the production of evidence it deemed necessary."[45]

However, President Nixon's production of records was incomplete in a very important respect: he did not produce key tape recordings of Oval Office conversations, and some of the transcripts of such recordings that he produced were heavily edited or inaccurate.[46] President Nixon claimed that his noncompliance with House subpoenas was necessary to protect the confidentiality of Presidential conversations. But as we explain further in the next section, this Committee rejected his arguments and approved an article of impeachment against President Nixon for obstruction of the House's impeachment inquiry.[47]

Twenty-four years later, the House undertook impeachment proceedings against President Clinton. Consistent with precedent, he "pledged to cooperate fully with the [impeachment] investigation."[48] And although the House engaged in very little independent fact-finding, President Clinton substantially cooperated, providing written responses to 81 interrogatories from the Judiciary Committee during the impeachment inquiry—as well as his own DNA.[49]

Thus, Presidents have long recognized that the House enjoys a nearly plenary power of inquiry while investigating grounds for impeachment. This conclusion is further supported by an additional ​Executive Branch policy. In the current view of the Department of Justice (DOJ)—the accuracy of which we do not here opine upon—the President cannot be indicted or face criminal prosecution while in office.[50] As support for that view, DOJ has reasoned that a President "who engages in criminal behavior falling into the category of 'high Crimes and Misdemeanors'" is "always subject to removal from office upon impeachment by the House and conviction by the Senate."[51] DOJ adds that "the constitutionally specified impeachment process ensures that the immunity [of a sitting President from prosecution] would not place the President 'above the law.'"[52] Given DOJ's refusal to indict or prosecute a sitting President, impeachment and removal may be one of the few available mechanisms to hold a President immediately accountable for criminal conduct also constituting "high Crimes and Misdemeanors." On that view, the House must have broad access to evidence supporting or refuting allegations of impeachable misconduct, since an unduly narrow view of the House's authority would place the President beyond all legal constraint.

The Judiciary has similarly concluded that the House enjoys broad investigative power in an impeachment setting. In Kilbourn v. Thompson, for example, the Supreme Court invalidated a contempt order by the House, but emphasized that "the whole aspect of the case would have changed" were it an impeachment proceeding, since "[w]here the question of such impeachment is before either [House of Congress] acting in its appropriate sphere on that subject, we see no reason to doubt the right to compel the attendance of witnesses, and their answer to proper questions, in the same manner and by the use of the same means that courts of justice can in like cases."[53]

More recently, Judge John J. Sirica's influential opinion on the Watergate "road map" likewise emphasized the special and substantial weight assigned to legislative interests in an impeachment context: "[I]t should not be forgotten that we deal in a matter of the most critical moment to the Nation, an impeachment investigation involving the President of the United States. It would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information."[54] Sitting en banc, the United States Court of Appeals for the District of Columbia Circuit further recognized that the House has enhanced legal powers to obtain material from the President in an impeachment inquiry because "[t]he investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source."[55]

A spate of decisions from the 1980s further support the House's robust investigative powers during impeachment. In Nixon v. Fitzgerald, the Supreme Court announced a rule of absolute ​Presidential immunity from civil damages.[56] In so doing, it emphasized that this rule "will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive," since "there remains the constitutional remedy of impeachment."[57] The Court pointedly added that "[v]igilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment."[58] This statement constituted a recognition by the Court that the House cannot effectively exercise its impeachment power without the ability to undertake "vigilant oversight."[59]

Over the following years, several federal courts agreed. In 1984, the United States Court of Appeals for the Eleventh Circuit emphasized that impeachment inquiries require courts to place a heavy thumb on the scale in favor of turning over materials to Congressional investigators.[60] Three years later, a district judge elaborated that courts have limited power to constrain legislative investigations in an impeachment setting: "Ancillary to the sole power of impeachment vested in the House by the Constitution is the power to disclose the evidence that it receives as it sees fit. Again, recognition of the doctrine of separation of powers precludes the judiciary from imposing restrictions on the exercise of the impeachment power."[61] In affirming this decision, the Eleventh Circuit noted that "[p]ublic confidence in a procedure as political and public as impeachment is an important consideration justifying disclosure" of grand jury materials to Congress.[62]

More recent opinions have echoed these points. As one judge observed, when "subpoenas [are] issued in connection with an impeachment proceeding . . . . Congress's investigatory powers are at their peak."[63] Other judges have more broadly emphasized the public interest in obtaining Executive Branch ​records that may be relevant to an ongoing impeachment inquiry.[64]

"Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions regulating the relationship between Congress and the President."[65] Viewed together, the practices and express statements set forth above confirm that the House enjoys an exceedingly expansive power of inquiry when investigating grounds for impeachment. Because the House's interests in any such inquiry evoke the interests underlying the impeachment power itself, subpoenas issued by a House impeachment inquiry should overcome nearly any countervailing interest or privilege. Finally, by virtue of the plain language of Article I of the Constitution, which vests the House with the "sole Power of Impeachment" as a check against the Presidency, it is for the House—and not the President—to determine what documents and testimony are needed for its exercise of the impeachment power.

C.Obstruction of Congress Is an Impeachable Offense

Impeachment is a cornerstone of the Constitution. When the House wields the impeachment power, it serves as a grand inquest of the Nation on behalf of the American people, charged with protecting our democracy. Because the premise of the Impeachment Clause is that the House must be able to act when the President has abused his power, betrayed the national interest, or corrupted elections, a President who obstructs House investigators has attacked the Constitution itself. Even when the President strenuously disagrees with the impeachment inquiry—and even when he doubts its motives—he must obey the law and allow others to meet their legal obligations. The absurdity of allowing Presidents to dictate the terms of impeachment inquiries is obvious. The danger of allowing Presidents to do so is manifest. For that reason, Presidential obstruction of an impeachment inquiry is itself an impeachable abuse of power under the Constitution.[66]

To be sure, Presidents may still raise privacy, national security, and other concerns in the course ​of an impeachment inquiry, to the extent they apply. There is room for inter-branch negotiation and accommodation—though there is an overwhelming presumption in favor of full disclosure and compliance with House subpoenas. But when a President abuses his office to defy House investigators on matters that they deem pertinent to their inquiry, and does so without lawful cause or excuse, his conduct may constitute an unconstitutional effort to seize and break the impeachment power vested solely in the House. In that respect, obstruction of Congress involves "the exercise of official power in a way that, on its very face, grossly exceeds the President's constitutional authority or violates legal limits on that authority."[67]

This is illustrated by President's Nixon case. As explained above, President Nixon allowed senior administration officials to testify and produced many documents. He did not direct anything approximating a categorical and indiscriminate blockade of the House's impeachment inquiry. But in response to the Judiciary Committee's eight subpoenas for recordings and materials related to 147 conversations, he produced only limited documents and edited transcripts of roughly 30 conversations; many of those transcripts were inaccurate or incomplete.[68] President Nixon claimed that his noncompliance was legally defensible, invoking the doctrine of executive privilege.[69]

The Judiciary Committee rejected these arguments and deemed President Nixon's conduct to be impeachable. It observed that his "statements that the institution of the Presidency is threatened when he is required to comply with a subpoena in an impeachment inquiry exaggerate both the likelihood of such an inquiry and the threat to confidentiality from it."[70] The Committee also emphasized that "the doctrine of separation of powers cannot justify the withholding of information from an impeachment inquiry."[71] After all, "[t]he very purpose of such an inquiry is to permit the House, acting on behalf of the people, to curb the excesses of another branch, in this instance the Executive."[72] Therefore, "[w]hatever the limits of legislative power in other contexts—and whatever need may otherwise exist for preserving the confidentiality of Presidential conversations—in the context of an impeachment proceeding the balance was struck in favor of the power of inquiry when the impeachment provision was written into the Constitution."[73]

Because "the refusal of [President Nixon] to comply with the subpoenas was an interference by him with the efforts of the Committee and the House of Representatives to fulfill their constitutional responsibilities," the Judiciary Committee deemed it impeachable.[74] The Committee reached that ​determination even though it had "been able to conduct an investigation and determine that grounds for impeachment exist," despite "the President's refusal to comply."[75] On that point, the Committee observed that President Nixon's obstruction "was not without practical import," since "[h]ad it received the evidence sought by the subpoenas, the Committee might have recommended articles structured differently or possible ones covering other matters."[76]

President Nixon's obstruction of the House impeachment inquiry featured in two of the three articles approved by the Judiciary Committee. Article II charged President Nixon with abuse of power, including "failing to act when he knew or had reason to know that his close subordinates endeavored to impede and frustrate lawful inquiries by duly constituted executive, judicial and legislative entities concerning the unlawful entry into the headquarters of the Democratic National Committee, and the cover-up thereof, and concerning other unlawful activities . . . ."[77]

More directly, Article III charged President Nixon with abusing his power by interfering with the discharge of the Judiciary Committee's responsibility to investigate fully and completely whether sufficient grounds existed to impeach him:

In refusing to produce these papers and things, Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives. In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States . . . .[78]

President Nixon's case is thus persuasive authority that Presidential defiance of a House impeachment inquiry may constitute "high Crimes and Misdemeanors."

This Committee took the same view in President Clinton's case. The fourth article of impeachment against President Clinton charged that he had "impaired the due and proper administration of justice and the conduct of lawful inquiries, and contravened the authority of the legislative branch and the truth seeking purpose of a coordinate investigative proceeding."[79] Specifically, it accused him of failing to respond to certain written requests and making false and ​misleading statements to Congress. To justify impeaching President Clinton on that basis, the Committee reasoned as follows:

In responding in such a manner, the President exhibited contempt for the constitutional prerogative of Congress to conduct an impeachment inquiry. The impeachment duty is a solemn one vested exclusively in the House of Representatives as a check and balance on the President and the Judiciary. The Committee reached the unfortunate conclusion that the President, by giving perjurious, false, and misleading answers under oath to the Committee's requests for admission, chose to take steps to thwart this serious constitutional process.[80]

Ultimately, the House declined to approve this article. That decision, however, did not constitute a determination that obstruction of a House impeachment inquiry cannot be impeachable. Instead, it appears to reflect a judgment by the full House that President Clinton's conduct was not substantial, malicious, or obstructive enough to warrant an article of impeachment.

Applying these principles, a President commits "high Crimes and Misdemeanors" when he abuses his office to substantially obstruct House impeachment investigators on matters that it deems pertinent to its inquiry, and does so without lawful cause or excuse.

D.President Trump Has Committed "[H]igh Crimes and Misdemeanors"
1.President Trump Substantially Obstructed the Impeachment Inquiry

The evidentiary record bearing on President Trump's obstruction of the House impeachment inquiry is set forth in the Ukraine Report and incorporated by reference here.[81] On the basis of that record, it is indisputable that President Trump substantially obstructed the House impeachment inquiry. The essential facts bearing on that judgment include the following:

  • From September through November 2019, the Investigating Committees served subpoenas on numerous Executive Branch agencies, offices, and officials. These subpoenas sought evidence and testimony regarding President Trump's efforts to solicit and pressure the Government of Ukraine to announce investigations into former Vice President Joseph R. Biden and a discredited conspiracy theory alleging Ukrainian interference in the 2016 United States Presidential election.[82] ​
  • At the time the Investigating Committees served these subpoenas, and continually since then, they were acting pursuant to a House impeachment inquiry under Article I of the Constitution.[83]
  • Even before the House launched its Ukraine inquiry, President Trump rejected the authority of Congress to investigate his actions, stating, "We're fighting all the subpoenas,"[84] and "I have an Article [II], where I have the right to do whatever I want as President."[85]
  • Writing "on behalf of President Donald J. Trump," White House Counsel Pat A. Cipollone sent a letter to senior House officials on October 8, 2019, confirming that President Trump had directed his entire Administration to defy the impeachment inquiry. Mr. Cipollone wrote: "President Trump cannot permit his Administration to participate in this partisan inquiry under these circumstances."[86]
  • Two days later, President Trump agreed that Mr. Cipollone was conveying the President's direction in the October 8 letter. President Trump stated: "As our brilliant White House Counsel wrote to the Democrats yesterday, he said their highly partisan and unconstitutional effort threatens grave and lasting damage to our democratic institutions, to our system of free elections, and to the American people. That's what it is. To the American people. It's so terrible. Democrats are on a crusade to destroy our democracy. That's what's happening. We will never let it happen. We will defeat them."[87]
  • President Trump's direction was categorical and indiscriminate: he directed all agencies, offices, and officials not to cooperate with the impeachment inquiry. In other words, President Trump directed officials throughout the Executive Branch to violate their own independent legal obligations. ​
  • President Trump's direction was unprecedented: no President has ever issued such direction—or anything even approximating it—in response to an impeachment inquiry.
  • President Trump's direction had the natural and foreseeable consequence of obstructing—and did, in fact, obstruct—the House impeachment inquiry:
    • Defying a subpoena, the White House refused to produce any information or records to the Investigating Committees as part of this inquiry.[88]
    • Defying subpoenas, the Department of State, the Office of Management and Budget, the Department of Energy, and the Department of Defense refused to produce a single record to the Investigating Committees as part of this inquiry.[89]
    • Defying subpoenas, nine Administration officials refused to testify before the Investigating Committees, namely Mick Mulvaney (Acting White House Chief of Staff), Robert B. Blair (Assistant to the President and Senior Advisor to the Chief of Staff), John A. Eisenberg (Deputy Counsel to the President for National Security Affairs and Legal Advisor, National Security Council), Michael Ellis (Senior Associate Counsel to the President and Deputy Legal Advisor, National Security Council), Preston Wells Griffith (Senior Director for International Energy and Environment, National Security Council), Russell T. Vought (Acting Director, Office of Management and Budget), Michael Duffey (Associate Director for National Security Programs, Office of Management and Budget), Brian McCormack (Associate Director for Natural Resources, Energy, and Science, Office of Management and Budget, and former Chief of Staff to Secretary of Energy Rick Perry), and T. Ulrich Brechbuhl (Counselor, Department of State).[90]
  • The Investigating Committees concluded—with ample reason—that this defiance of their subpoenas resulted in the denial of evidence relevant to the inquiry. Numerous witnesses identified specific relevant documents that have been withheld, and there is substantial evidence that officials who followed President Trump's direction not to appear could have offered testimony bearing on President Trump's course of conduct regarding Ukraine.[91] ​
  • President Trump lacked lawful cause or excuse for issuing his direction that all Executive Branch officials defy their legal obligations in response to Congressional subpoenas.[92]

Despite President Trump's direction that the Executive Branch blockade the impeachment inquiry, the Investigating Committees found clear and overwhelming evidence of his misconduct. This includes powerful direct evidence, strengthened and supported by compelling circumstantial evidence, of President Trump's course of conduct and corrupt motivations in soliciting and pressuring the Government of Ukraine to interfere in the 2020 Presidential election. Some of the evidence before the Committee consists of testimony from officials who properly complied with their Congressional subpoenas, notwithstanding the President's contrary direction.[93] In response to such testimony, President Trump used the world's most powerful bully pulpit to attack, threaten, and intimidate numerous witnesses and potential witnesses.[94]

Ultimately, as in President Nixon's case, House Committees have "been able to conduct an investigation and determine that grounds for impeachment exist—even in the face of the President's refusal to comply."[95] But here, as there, the President's obstruction of the House impeachment inquiry was not "without practical import."[96] It may have prevented the House from learning the full extent of the President's misdeeds.

The President thus inflicted concrete harm on the House, which is duty-bound to inquire when it has cause to believe the President may have committed "high Crimes and Misdemeanors." The House made that judgment here when evidence emerged that President Trump had solicited and pressured a foreign power to interfere in our elections for his own personal political benefit. To discharge its constitutional obligations, the House—acting through its Committees—pursued an impeachment inquiry and subpoenaed relevant Executive Branch agencies, offices, and officials. In seeking to thwart the House in the faithful performance of that constitutional function, President Trump committed a ​gross abuse of power. Most immediately, this abuse involved ordering the defiance of Congressional subpoenas. That stands as "an affront to the mechanism for curbing abuses of power that the Framers carefully crafted for our protection."[97]

More fundamentally, President Trump's direction to defy House subpoenas constituted an assault on the Impeachment Clause itself—and thus on our Constitution's final answer to corrupt Presidents. As explained above, the "sole Power of Impeachment" authorizes the House to review information that resides within the very branch of government it is empowered to scrutinize. By engaging in substantial obstruction of a House impeachment inquiry, the President could effectively seek to control a check on his own abuses. That is exactly what happened here.

In President Nixon's case, this Committee concluded that "[u]nless the defiance of the [House] subpoenas ... is considered grounds for impeachment, it is difficult to conceive of any President acknowledging that he is obligated to supply the relevant evidence necessary for Congress to exercise its constitutional responsibility in an impeachment proceeding."[98] The same lesson applies now, but with exponentially greater force. President Nixon authorized other officials and agencies to honor their legal obligations.[99] He also turned over many of his own documents, failing only to respond fully to eight subpoenas.[100] President Trump, in contrast, directed his entire Administration—every agency, office, and official in the Executive Branch—not to cooperate with the impeachment inquiry, including by disobeying duly authorized subpoenas. If this does not qualify as impeachable obstruction of Congress, then nothing does, and the House will have sent a dangerous invitation to future Presidents to defy impeachment inquiries.

2.President Trump's Obstruction of Congress Lacked Lawful Cause or Excuse and Involved Recognizably Wrongful Conduct

President Trump and his lawyers have offered various arguments to justify the President's complete defiance of the House impeachment inquiry. Those arguments are indefensible as a matter of law and come nowhere close to excusing the President's unprecedented obstruction of Congress. They amount to a claim that the President has the power to dictate the terms on which he is investigated for "high Crimes and Misdemeanors"—a claim that is fundamentally at odds with the Constitution. The President's excuses consist mainly of complaints about the procedures adopted by the House and its Committees. For example, the President asserts that the full House needed to vote to authorize the impeachment inquiry at an earlier date; that the Investigating Committees were requiredto afford him a broad array of rights to intervene and participate in their proceedings as they engaged in fact finding; that the Investigating Committees were forbidden to conduct portions of their fact ​finding investigations behind closed doors; that the Investigating Committees were required to allow agency attorneys to attend depositions; that the Minority was entitled to certain subpoena powers; and that the House engaged in "threats and intimidation" by informing Executive Branch subpoena recipients of the legal consequences of their failure to comply with duly authorized Congressional subpoenas.[101]

The President has asserted many procedural arguments, but they all fail for similar reasons. First, the House—not the President—has the "sole Power of Impeachment"[102] and the sole power "to determine the Rules of its Proceedings."[103] President Trump's process complaints thus concern matters entrusted to the exclusive discretion of the House. His disagreement with how the House has organized its hearings and carried out its investigations offers no excuse for breaking the law and directing others to do so. Second, as already described, impeachment proceedings are not criminal in character and involve only the charging-style decision on whether to accuse the President of "high Crimes and Misdemeanors."[104] Thus, although President Trump has described his demands as seeking "due process," none of these procedures are "due" to him under the Constitution here. Third, President Trump's demands have no basis in history or prior practice, which cut against him.[105] Finally, in passing H. Res. 660, the House implemented procedural protections for the President that exceed (or are consistent with) those afforded to Presidents Nixon and Clinton.<ref>See supra The Impeachment Inquiry.<ref> The fact that President Trump declined to take advantage of these protections does not excuse his across-the-board stonewalling of ​the House.[106]

President Trump's remaining arguments fare no better. Through Mr. Cipollone's letter, he asserts the prerogative to defy all House subpoenas because he has unilaterally decided that he did not do anything wrong.[107] He adds that the House must be acting with "partisan" and "illegitimate" motives.[108] Notably, the President did not simply make these points at a press conference or on Twitter. He had the White House Counsel include them in a letter to the House as part of his formal legal basis for directing obstruction of the House impeachment inquiry.[109]

To state the obvious, a President cannot obstruct a House impeachment inquiry because he believes his conduct was proper and sees no need for his acts to be investigated. Nor can he do so by impugning the House's motives or attacking its legitimacy. Once again, the Constitution vests the House with the "sole Power of Impeachment." These are judgments for the House alone to make, guided always by the Constitution. Otherwise, in contravention of the entire Anglo-American legal tradition, Presidents would truly be the judge of their own case.[110] That is why the Framers gave the impeachment power to Congress, not the President, and it is why the House and Senate, respectively, have "sole Power" to impeach and to adjudicate articles of impeachment.[111]

On this score, the Supreme Court's decision in Walter Nixon v. United States is instructive: "Judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive because it would eviscerate the important constitutional check placed on the Judiciary by the Framers. [Judge] Nixon's argument would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate."[112] In ​practice, President Trump would do what the Supreme Court has clearly warned against: place vital constitutional judgments about exercises of the impeachment power "in the hands of the same [President] that the impeachment process is meant to regulate."[113] Thus, while President Trump merely erred in asserting that the impeachment inquiry was unfounded, partisan, and "illegitimate," he moved from error to "high Crimes and Misdemeanors" in declaring that his self-determined innocence somehow justifies his scorched-earth obstruction campaign.

Throughout our history, impeachments—particularly of Presidents—have been rare. Moreover, in Judge Walter Nixon's case, the Supreme Court made clear its extreme wariness of intruding on powers of impeachment entrusted solely to Congress. As a result, impeachment proceedings against a President will inevitably raise questions of constitutional law that have not been definitively, specifically resolved by judicial precedent or past practice of the House. This leaves room for interbranch negotiation. But it does not allow the President to seize on specious arguments, cobble them together, and use them in an effort to justify the unjustifiable: a Presidential direction that all House subpoenas be entirely defied under all circumstances. Such unyielding Presidential obstruction of an impeachment inquiry is plainly wrong. When the House investigates impeachable offenses, the President cannot cover up his misconduct by holding hostage all evidence contained within the Executive Branch. The Judiciary Committee made this clear in President Nixon's case and reaffirms that principle today.

Simply put, there are lines that a President cannot cross in an impeachment inquiry. Those lines exist to ensure that the Impeachment Clause can serve its fundamental purpose as a safeguard for the people of the United States. In comprehensively obstructing this House impeachment inquiry, President Trump crossed every one of these lines. He did so without any valid cause or excuse. He must therefore be impeached, lest future Presidents follow his example and persist in corruption, oppression, and abuse of power with little risk of discovery or accountability.

3.Judicial Review is Unnecessary and Impractical Here

It has been suggested that the House cannot impeach President Trump for obstruction of Congress without seeking judicial enforcement of the subpoenas that he has ordered be defied. This claim is mistaken as a matter of constitutional law, precedent, and common sense.

As already explained, the Constitution vests the House—rather than the President or Judiciary—with "the sole Power of Impeachment." That "sole Power" includes the investigatory powers that the House has invoked in serving subpoenas as part of the current impeachment inquiry. This Committee therefore concluded in President Nixon's case that it would frustrate the constitutional plan for the House to depend entirely on the Judiciary to enforce subpoenas in impeachment proceedings.[114] That would risk making the House subservient to courts in matters where the ​Constitution gives the House the final word.[115] It would also raise complexities in the case of a President who directed Executive Branch officials to defy House subpoenas—and then used his pardon power to immunize them from contempt orders if instructed by the Judiciary to honor those subpoenas.[116]

To be sure, judicial review may at first blush seem desirable because "it would be an independent determination by an entity with no interest in the proceedings."[117] But as this Committee has noted: "[T]he impeachment process itself provides an opportunity for such a determination— initially by the House in deciding whether to prosecute the Article of Impeachment, and, ultimately, by the Senate, the tribunal for an impeachment trial. Neither the Committee nor the House would be the final judge of the validity of the Committee's subpoenas. Whether noncompliance with the subpoenas is a ground for impeachment would ultimately be adjudicated in the Senate."[118]

Consistent with this understanding of the constitutional plan, the House has never before relied on litigation to compel witness testimony or the production of documents in a Presidential impeachment proceeding.[119] Some members of the Minority have suggested otherwise, but there is no law or practice to support such a theory.[120] As explained above, the history of House impeachment inquiries teaches a single lesson: compliance with subpoenas is the rule, defiance the exceedingly rare (and impeachable) exception. No President has ever issued a blanket ban on compliance with House subpoenas and challenged the House to find a way around his unlawful order. Under these strange and unprecedented circumstances, it is appropriate for the House to reach its own independent judgment that the President is obstructing the exercise of its constitutional impeachment power, rather than seeking judicial review. Indeed, whereas the Minority suggests that recourse to litigation is required, President Trump has repeatedly argued that the House is forbidden to seek judicial enforcement of its subpoenas. In pending lawsuits filed by the House or its Committees, the Justice Department has raised jurisdictional arguments on behalf of President Trump that, if accepted, would hamper or negate the House's ability to enforce subpoenas in court.[121] Those arguments are mistaken and have already been rejected several ​times,[122] but reflect the President's sustained and unwavering view that it is legally impermissible for the House to obtain judicial relief. Where the President orders total defiance of House subpoenas and vigorously argues that the courthouse door is locked, it is clear that he seeks to obstruct the House in the exercise of its impeachment power.

This conclusion comports with common sense. The President is under investigation for soliciting and pressuring a foreign power to interfere in an election that is less than a year away. The House has already received compelling evidence of his misconduct. Waiting any longer would thus be an abdication of duty—particularly given the extreme implausibility that litigation would soon bring new evidence to light. Consider three lawsuits filed by House Committees over the past two decades seeking to enforce subpoenas against senior Executive Branch officials:

  • In Committee on the Judiciary v. Miers, this Committee sought to enforce a subpoena requiring former White House Counsel Harriet Miers to give testimony about the contentious firing of nine United States Attorneys. The Committee served that subpoena in June 2007, filed suit in March 2008, and won a favorable district court order in July 2008, but did not receive testimony from Miers until June 2009 due to the entry of a stay by the Court of Appeals and further negotiations between the parties.[123]
  • In Committee on Oversight and Reform v. Holder, the Committee on Oversight and Reform (COR) sought to compel Attorney General Eric Holder to produce documents relating to Operation Fast and Furious. The committee served that subpoena in October 2011 and filed suit in August 2012. It then won a series of orders requiring the production of documents, but the first such order did not issue until August 2014.[124]
  • In Committee on the Judiciary v. McGahn, this Committee seeks to enforce a subpoena requiring White House Counsel Donald F. McGahn II to give testimony regarding matters relating to the Special Counsel's investigation. The Committee served that subpoena in April 2019, filed suit in August 2019, and won a favorable district court order in November 2019, but the Court of Appeals has stayed that ruling and will not hear oral argument until January 2020.[125] ​Even when the House urges expedition, it usually takes years—not months—to obtain documents or testimony through judicial subpoena enforcement proceedings. It would be unwise, indeed dangerous, to allow Presidents to defy all subpoenas in an impeachment inquiry and then assert that the House cannot impeach without exhausting judicial remedies. Particularly in a case like this one, where the President's misconduct is a constitutional crime in progress, waiting for the courts is the practical equivalent of inaction. This Committee will not stand idly by while the President abuses power by asking and pressuring foreign powers to corrupt the upcoming election.
4.President Trump Poses a Continuing Threat if Left in Office

Impeachment exists "not to inflict personal punishment for past wrongdoing, but rather to protect against future Presidential misconduct that would endanger democracy and the rule of law."[126] By virtue of the conduct encompassed by Article II, President Trump "has demonstrated that he will remain a threat to the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law."[127] That is true in at least three respects: first, he has debased the impeachment remedy; second, he has broadly argued that no government entity in the United States has the legal power to investigate his official misconduct except on terms of his choosing; and third, his obstruction reflects a pattern of misconduct.

a.Debasement of the Impeachment Remedy

The impeachment power exists for a reason. It is the Framers' final and most definitive answer to a fundamental question: "Shall any man be above Justice?"[128] Urging the necessity of allowing impeachments, Elbridge T. Gerry thus emphasized: "A good magistrate will not fear them. A bad one ought to be kept in fear of them."[129] In Federalist Papers No. 69, Alexander Hamilton affirmed that the Impeachment Clause separates Presidents from kings and khans.[130] Where a President abuses his power, betrays the public through foreign entanglements, or corrupts his office or elections, impeachment is our Nation's last line of defense against conduct "fatal to the Republic."[131] It was partly by virtue of this limit on malfeasance that the Framers entrusted Presidents with sweeping executive authority. A President who seeks to sabotage the impeachment power thus disorders our system of checks and balances, tilting it toward executive tyranny.

That is what President Trump did here. The point bears repetition: his conduct is unlike anything this Nation has ever seen. Other Presidents have disapproved of impeachments. Other Presidents have criticized the House and doubted its motives. Other Presidents have insisted they did nothing wrong. ​But no President before this one has declared himself and his entire branch of government exempt from subpoenas issued by the House under its "sole Power of Impeachment." No President has made compliance with his every demand a condition of even considering whether to honor subpoenas. No President has directed his senior officials to violate their own legal obligations because an impeachment was "illegitimate." Indeed, every President in our Nation's history but one has done the opposite—and that President, Richard M. Nixon, faced an article of impeachment in this Committee for withholding key evidence from the House.

b.Denial of Any Mechanism of Legal Oversight or Accountability

Approval of the Second Article of Impeachment is further supported by President Trump's apparent view that nobody in the United States government has the lawful authority to investigate any misconduct in which he engages. This view is evident in the legal positions he has taken while in office. To start, President Trump maintains that he is completely immune from criminal indictment and prosecution while serving as President.[132] He also claims that he cannot be investigated—under any circumstance—by state or federal law enforcement while in office.[133] He asserts the authority to terminate and control federal law enforcement investigations for any reason (or none at all), including when he is the subject of an investigation.[134] He insists that unfounded doctrines, such as absolute immunity, preclude testimony by many current and former officials who might shed light on any Presidential abuses.[135] He defies binding Congressional subpoenas on topics of national importance based on his own determination that they lack a legitimate purpose,[136] and then he sues to block third ​parties from complying with such subpoenas.[137] Even as he pursues his own interests in court, his administration simultaneously argues that Congress is barred from obtaining judicial enforcement when Executive Branch officials disregard its subpoenas.[138]

Perhaps most remarkably, President Trump claims that the House cannot investigate his misconduct outside of an impeachment inquiry[139]—but also claims that it cannot investigate his misconduct as part of an impeachment inquiry if he deems it "illegitimate."[140] And an inquiry ranks as "illegitimate," in President Trump's view, if he thinks he did nothing wrong, doubts the motives of the House, or prefers a different set of Committee procedures. It is not hyperbole to describe this reasoning as better suited to George Orwell or Franz Kafka than the Office of the President.

Viewed in their totality, President Trump's positions amount to an insistence that he is above the law; that there is no governmental entity in the United States outside his direct control that can investigate him for official misconduct and hold him accountable for any wrongdoing. Even the House, wielding one of the mightiest powers in the Constitution—a power that exists specifically to address a rogue President—has no authority at all to investigate his official acts if he decides otherwise.

That is not our law. It never has been. The President is a constitutional officer. Unlike a despot, he answers to a higher legal authority. It is disconcerting enough that the President has attacked and resisted the House's explicit oversight authority in unprecedented ways. But it is worse, much worse, that he now claims the further prerogative to ignore a House impeachment inquiry. [141] The continuing threat posed by President Trump's conduct, as set forth in the Second Article of Impeachment, is thus exacerbated by his public and legal assertions that it is illegitimate and unlawful for anyone to ​investigate him for abuse of office except on his own terms.

c.Consistency with Previous Conduct

The Second Article of Impeachment impeaches President Trump for obstructing Congress with respect to the House impeachment inquiry relating to Ukraine. Yet, as noted in that Article, President Trump's obstruction of that investigation is "consistent with [his] previous efforts to undermine United States Government investigations into foreign interference in United States elections."[142] An understanding of those previous efforts, and the pattern of misconduct they represent, sheds light on the particular conduct set forth in that Article as sufficient grounds for the impeachment of President Trump.[143]

These previous efforts include, but are not limited to, President Trump's endeavor to impede the Special Counsel's investigation into Russian interference with the 2016 United States Presidential election, as well as President Trump's sustained efforts to obstruct the Special Counsel after learning that he was under investigation for obstruction of justice. [144] There can be no serious doubt that the Special Counsel's investigation addressed an issue of extraordinary importance to our national security and democracy. As the Special Counsel concluded, "[t]he Russian government interfered in the 2016 presidential election in sweeping and systematic fashion."[145] This assessment accords with the consensus view of the United States intelligence community. [146]

Ultimately, although the Special Counsel "did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities," he did conclude that "the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts."[147] Yet there is no indication in the Special Counsel's report that anyone from the Trump Campaign, including President Trump, reported to law enforcement any contacts or offers of foreign assistance. Instead, President Trump openly welcomed ​and invited Russian interference in the election.[148]

Rather than aid the Special Counsel's investigation into Russian interference, President Trump sought to thwart it—and used the powers of his office as part of that scheme.[149] Most notably, after learning that he was himself under investigation, President Trump among other things ordered the firing of the Special Counsel,[150] sought to curtail the Special Counsel's investigation in a manner exempting his own prior conduct,[151] instructed the White House Counsel to create a false record and make false public statements,[152] and tampered with at least two key witnesses in the Special Counsel's investigation.[153] Based on the Special Counsel's report, these acts were obstructive in nature, and there is evidence strongly supporting that President Trump acted with the improper (and criminal) purpose of avoiding potential liability and concealing information that he viewed as personally and politically damaging. [154]

The pattern is as unmistakable as it is unnerving. There, President Trump welcomed and invited a foreign nation to interfere in a United States Presidential election to his advantage; here, President Trump solicited and pressured a foreign nation to do so. There, Executive Branch law enforcement investigated; here, the House impeachment inquiry investigated. There, President Trump used the powers of his office to obstruct and seek to fire the Special Counsel; here, President Trump used the powers of his office to obstruct and embargo the House impeachment inquiry. There, while obstructing investigators, the President stated that he remained free to invite foreign interference in our elections; here, while obstructing investigators, President Trump in fact invited additional foreign interference. Indeed, President Trump placed his fateful July 25 call to President Zelensky just one day after the Special Counsel testified in Congress about his findings.

Viewed in this frame, it is apparent that President Trump sees no barrier to inviting (or inducing) foreign interference in our elections, using the powers of his office to obstruct anyone who dares to investigate such misconduct, and engaging in the same conduct with impunity all over again. Although the Second Article of Impeachment focuses on President Trump's categorical and indiscriminate obstruction of the House impeachment inquiry, the consistency of this obstruction with his broader pattern of misconduct is relevant and striking.[155]

​IV.Conclusion

As the Investigating Committees concluded, "it would be hard to imagine a stronger or more complete case of obstruction than that demonstrated by the President since the [impeachment] inquiry began."[156] In the history of our Republic, no President has obstructed Congress like President Trump. If President Nixon's obstruction of Congress raised a slippery slope concern, we now find ourselves at the bottom of the slope, surveying the damage to our Constitution.

That damage is extraordinary. As explained above, and as set forth in Article II, President Trump has "sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct, as well as the unilateral prerogative to deny any and all information to the House of Representatives in the exercise of its 'sole Power of Impeachment.'"[157]

This abuse of the Presidential office, moreover, "served to cover up the President's own repeated misconduct and to seize and control the power of impeachment—and thus to nullify a vital constitutional safeguard vested solely in the House of Representatives." [158] If President Trump is left unchecked, we will send an alarming message to future Presidents.

In word and deed, President Trump has sought to write the Impeachment Clause out of the Constitution. If his excuses for that conduct are accepted, then every future President can choose to ignore House subpoenas, and a bulwark against tyranny will be undone. This time, courageous and patriotic public servants defied the President's direction and offered testimony about his corrupt solicitation and inducement of foreign interference in our elections. Next time, we may not be so fortunate, and a President may perpetrate abuses that remain unknown or unprovable. That is exactly what the Framers feared most as they designed the Office of the President. It is what they warned against in their deliberations, and what they sought to prevent by authorizing impeachments. We are the inheritors of that legacy—of a Republic, if we can keep it.

  1. ↑ U.S. Const., art. I, § 2, cl. 5.
  2. ↑ U.S. Const., art. II, § 4.
  3. ↑ The White House, Remarks by President Nixon (Apr. 17, 1973).
  4. ↑ The Trump-Ukraine Impeachment Inquiry Report: Report for the H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in Consultation with the H. Comm. on Oversight and Reform and the H. Comm. on Foreign Affairs at 28, 116th Cong. (2019) (hereinafter "Ukraine Report").
  5. ↑ H. Res. 755, Articles of Impeachment Against President Donald J. Trump, 116th Cong. (Dec. 11, 2019).
  6. ↑ Report of the Committee on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, H. Rep. No. 93-1305 at 207 (1974) (quoting President Polk) (citations omitted) (hereinafter "Committee Report on Nixon Articles of Impeachment (1974)").
  7. ↑ Id.
  8. ↑ Committee Report on Nixon Articles of Impeachment (1974), at 194.
  9. ↑ Letter from Pat A. Cipollone, Counsel to the President, The White House, to Hon. Nancy Pelosi, Speaker of the House, Hon. Adam B. Schiff, Chairman, H. Perm. Select Comm. on Intelligence, Hon. Eliot L. Engel, Chairman, H. Foreign Affairs Comm., and Hon. Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, at 8 (Oct. 8, 2019) (hereinafter, "Oct. 8 Cipollone Letter").
  10. ↑ See The Federalist NO. 69, at 444-45 (Alexander Hamilton) (Benjamin Fletcher Wright ed. 1961) ("The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.").
  11. ↑ Trump v. Mazars USA, LLP, 940 F.3d 710, 718 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019) ("Mazars").
  12. ↑ Id. (quoting Watkins v. United States, 354 U.S. 178, 188 (1957)).
  13. ↑ Id. (citations omitted).
  14. ↑ Id.; see also M'Culloch v. State, 17 U.S. 316, 401 (1819) ("[A] doubtful question . . . if not put at rest by the practice of the government, ought to receive a considerable impression from that practice.").
  15. ↑ U.S. Const., art. I, § 1.
  16. ↑ Id. at § 5.
  17. ↑ McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
  18. ↑ Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 77 (D.D.C. 2008).
  19. ↑ Watkins, 354 U.S. at 187; accord Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504 n.15 (1975) ("[T]he power to investigate is necessarily broad."); Barenblatt v. United States, 360 U.S. 109, 111 (1959) (describing Congress's investigative power as "broad"); Quinn v. United States, 349 U.S. 155, 161 (1955) (same); McGrain, 273 U.S., at 173-74 (same).
  20. ↑ Watkins, 354 U.S. at 187.
  21. ↑ See Mazars, 940 F.3d at 723.
  22. ↑ Townsend v. United States, 95 F.2d 352, 361 (D.C. Cir. 1938); accord Mazars, 940 F.3d at 723.
  23. ↑ Eastland, 421 U.S. at 509.
  24. ↑ Mazars, 940 F.3d at 721.
  25. ↑ See id. at 721-22; see also Ukraine Report, at 205-206.
  26. ↑ Quinn, 349 U.S. at 160-61 (citations omitted).
  27. ↑ 2 Farrand, Records of the Federal Convention, at 67.
  28. ↑ 2 Farrand, Records of the Federal Convention, at 65.
  29. ↑ The Federalist No. 66, at 431 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961). 814
  30. ↑ George Washington, Message to the House Regarding Documents Relative to the Jay Treaty (Mar. 30, 1796) (emphasis added), (hereinafter "Message on Jay Treaty"); see also Laurence H. Tribe & Joshua Matz, To End A Presidency: The Power of Impeachment 153-155 (2018) (hereinafter "To End A Presidency") (discussing scattered calls in local newspapers for the impeachment of President Washington over his handling of the Jay Treaty).
  31. ↑ Frauds Upon Indians – Right of the President to Withhold Papers, H.R. Rep. No. 27-271, at 12 (1843); see also Message on Jay Treaty ("It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment, which the resolution has not expressed.").
  32. ↑ Committee Report on Nixon Articles of Impeachment (1974) at 206 (citing 5 Annals of Congress 601 (1796)).
  33. ↑ 3 Joseph Story, Commentaries on the Constitution of the United States § 1495 at 352 (1833) (emphasis added).
  34. ↑ Tribe and Matz, To End A Presidency at 19-20.
  35. ↑ Committee Report on Nixon Articles of Impeachment (1974) at 206 (internal citations omitted).
  36. ↑ Committee Report on Nixon Articles of Impeachment (1974) at 207.
  37. ↑ Committee Report on Nixon Articles of Impeachment (1974) at 207 (internal citations omitted).
  38. ↑ Committee Report on Nixon Articles of Impeachment (1974) at 206 (internal citations omitted).
  39. ↑ When asked to disclose a conversation between himself and President Johnson regarding the preparation of a veto message, an advisor named Jeremiah Black thus agreed he was "bound in conscience to answer a question which that tribunal declares he ought to answer; that he is himself not the judge of what he ought to answer and what he ought not." Committee Report on Nixon Articles of Impeachment (1974) at 207.
  40. ↑ Id.
  41. ↑ Tribe and Matz, To End A Presidency at 156-169.
  42. ↑ See Staff of H. Comm. on the Judiciary, 116th Cong., Constitutional Grounds for Presidential Impeachment 42 (Comm. Print 2019) (citing Jonathan David Shaub, The Executive's Privilege: Rethinking the President's Power to Withhold Information, Lawfare (Oct. 31, 2019)) (hereinafter "Constitutional Grounds for Impeachment (2019)").
  43. ↑ See, e.g., Senate Select Committee on Presidential Campaign Activities, Testimony of John Dean, Watergate and Related Activities, Phase I: Watergate Investigation, 93d Cong. (June 25, 1973); Senate Select Committee on Presidential Campaign Activities, Testimony of H.R. Haldeman, Watergate and Related Activities, Phase I: Watergate Investigation, 93d Cong. (July 30, 1973); Senate Select Committee on Presidential Campaign Activities, Testimony of Alexander Butterfield, Watergate and Related Activities, Phase I: Watergate Investigation, 93d Cong. (July 16, 1973); Senate Select Committee on Presidential Campaign Activities, Testimony of John Ehrlichman, Watergate and Related Activities, Phase I: Watergate Investigation, 93d Cong. (July 24, 1973); see also Ukraine Report at 206.
  44. ↑ Committee Report on Nixon Articles of Impeachment (1974) at 196.
  45. ↑ Id. at 206 (footnote omitted).
  46. ↑ Id. at 203.
  47. ↑ Id. at 382-83.
  48. ↑ Andrew Miga, White House in Crisis, Boston Herald, Oct. 9, 1998.
  49. ↑ Impeachment of William Jefferson Clinton, President of the United States: Report of the Committee on the Judiciary, H.Rep. No. 105-830 at 77 (1998) ("On November 5, 1998, the Committee presented President Clinton with 81 requests for admission.") (hereinafter "Committee Report on Clinton Articles of Impeachment (1998)"). The Judiciary Committee nevertheless concluded that President Clinton's failure to respond to certain written requests for admission, and his alleged perjurious, false, and misleading sworn statements in response to other requests, warranted impeachment. Id. at 76 (Article IV). This proposed article of impeachment, however, was voted down on the House floor. 144 Cong. Rec. H11975, 12042 (1998).
  50. ↑ See A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 260 (2000).
  51. ↑ Id. at 257.
  52. ↑ Id.
  53. ↑ Kilbourn v. Thompson, 103 U.S. 168, 190, 194 (1880); see also Barry v. U.S. ex rel. Cunningham, 279 U.S. 597, 616 (1929) (recognizing that the Senate would have added power to compel witness testimony in an impeachment trial).
  54. ↑ In re Report & Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to House of Representatives, 370 F. Supp. 1219, 1230 (D.D.C. 1974).
  55. ↑ Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974).
  56. ↑ Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982) ("[W]e hold that petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts.").
  57. ↑ Id. at 757.
  58. ↑ Id.
  59. ↑ Id.
  60. ↑ See In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261, 1269–71 (11th Cir. 1984) ("Moreover, the question under investigation—whether an Article III judge should be recommended for impeachment by the Congress, otherwise disciplined, or granted a clean bill of health—is a matter of great societal importance. Given the character of an investigating committee and what is at stake—the public confidence in the judiciary, the independence and reputation of the accused judge—paragraph (c)(5) must in our view be read, with very few strings, as conferring authority to look into whatever is material to a determination of the truth or falsity of the charges.").
  61. ↑ In re Grand Jury Proceedings of Grand Jury No. 81-1, 669 F. Supp. 1072, 1078 (S.D. Fla. 1987).
  62. ↑ In re Request for Access to Grand Jury Materials Grand Jury No. 81-1, Miami, 833 F.2d 1438, 1445 (11th Cir. 1987).
  63. ↑ Trump v. Deutsche Bank AG, No. 19-1540, 2019 WL 6482561 at *38 n.1 (2d Cir. Dec. 3, 2019) (Livingston, J., concurring part and dissenting in part); see also Comm. on the Judiciary, U.S. House of Representatives v. Donald F. McGahn II, No. 19 Civ. 2379, 2019 WL 6463406 at *6 (D.D.C. Dec. 2, 2019) (emphasizing "the public's interest in thorough and well-informed impeachment proceedings."); In re Application of Comm. on Judiciary, U.S. House of Representatives, for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48, 2019 WL 5608827 at *3 (D.D.C. Oct. 29, 2019) ("'[A]n impeachment investigation involving the President of the United States is a matter of the most critical moment to the Nation' . . . Both HJC itself and the public, therefore, have an interest in HJC gaining immediate access to this grand jury material.") (citations and quotation marks omitted)).
  64. ↑ See, e.g., Ctr. for Pub. Integrity v. U.S. Dep't of Def., No. 19 Civ. 3265, 2019 WL 6270921 at *3 (D.D.C. Nov. 25, 2019) ("Currently, the [House] is in the process of conducting impeachment proceedings concerning the same subject matter as the documents requested by Plaintiff. As such, the requested documents are sought in order to inform the public on a matter of extreme national concern. Only an informed electorate can develop its opinions and persuasively petition its elected officials to act in ways which further the aims of those opinions."); Am. Oversight v. U.S. Dep't of State, No. 19 Civ. 2934, 2019 WL 5665930 at *4 (D.D.C. Oct. 25, 2019) ("This is the extraordinary case where the public interest favors placing American Oversight's requests ahead of other requests in the State Department's FOIA queue. Presidential impeachment investigations are solemn affairs, which Congress thankfully has seen fit to undertake only a few times in the Nation's history. The records American Oversight seeks, if they exist, could directly inform the present investigation and the surrounding public debate. The public's interest in disclosure of responsive, non-exempt records is therefore high and outweighs any harm to other FOIA requesters that might result from a temporary diversion of the State Department's FOIA resources to accelerate processing of this request.").
  65. ↑ N.L.R.B. v. Noel Canning, 573 U.S. 513, 524 (2014) (quotation marks and citation omitted).
  66. ↑ See, e.g., Frank O. Bowman III, High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump 199 (2019) ("The subpoena power in impeachment cases arises directly from an explicit constitutional directive that the House conduct an adjudicative proceeding akin to a grand jury, the success of which is necessarily dependent on the availability of relevant evidence. Without the power to compel compliance with subpoenas and the concomitant right to impeach a president for refusal to comply, the impeachment power would be nullified.").
  67. ↑ Constitutional Grounds for Impeachment (2019) at 18; see also id. (explaining that impeachable abuse of power was understood by the Framers as encompassing, inter alia, "conduct that is inherently and sharply inconsistent with the law— and that amounts to claims of monarchical prerogative").
  68. ↑ Committee Report on Nixon Articles of Impeachment (1974), at 203.
  69. ↑ Id. at 207-208.
  70. ↑ Id. at 210.
  71. ↑ Id. at 208.
  72. ↑ Id.
  73. ↑ Id. at 209.
  74. ↑ Id. at 188.
  75. ↑ Id. at 189.
  76. ↑ Id.
  77. ↑ Id. at 3-4 (emphasis added).
  78. ↑ Id. at 4.
  79. ↑ Committee Report on Clinton Articles of Impeachment (1998) at 4.
  80. ↑ Id. at 77.
  81. ↑ Ukraine Report at 201-260 & nn.1-441.
  82. ↑ Id. at 216-42.
  83. ↑ See supra The Impeachment Inquiry.
  84. ↑ Jeremy Diamond & Allie Malloy, Trump at war with Democrats: 'We're fighting all the subpoenas', CNN, Apr. 24, 2019.
  85. ↑ Remarks by President Trump at Turning Point USA's Teen Student Action Summit 2019, The White House, July 23, 2019
  86. ↑ Oct. 8 Cipollone Letter at 1, 4.
  87. ↑ Speech: Donald Trump Holds a Political Rally in Minneapolis, Minnesota, Factbase Videos, Oct. 10, 2019.

    Consistent with these statements, President Trump never negotiated in good faith with the Investigating Committees. He simply made one demand after another—each of them unjustified as a matter of law—and asserted that he would completely blockade the Investigating Committees if they did not concede. By no definition of the term is that a good faith negotiation. As Chief Judge Beryl Howell has observed in a related context, "The reality is that DOJ and the White House have been openly stonewalling the House's efforts to get information by subpoena and by agreement, and the White House has flatly stated that the Administration will not cooperate with congressional requests for information." In re Application of Comm. on Judiciary, U.S. House of Representatives, for an Order Authorizing Release of Certain Grand Jury Materials, 2019 WL 5485221, at *36 (citing the Oct. 8 Cipollone Letter).

  88. ↑ See Ukraine Report at 217. The White House has not produced a single document in response to the subpoena. Instead, it has released to the public only two documents: call records from the President's phone calls with President Zelensky on April 21 and July 25, 2019. The public release of a mere two documents comes nowhere close to satisfying President Trump's obligations, or to mitigating the sheer scope and scale of his Administration-wide obstruction of Congress.
  89. ↑ See Ukraine Report at 219-227.
  90. ↑ See Ukraine Report at 231-244. "In addition to the President's broad orders seeking to prohibit all Executive Branch employees from testifying, many of these witnesses were personally directed by senior political appointees not to cooperate with the House's impeachment inquiry. These directives frequently cited or enclosed copies of Mr. Cipollone's October 8 letter conveying the President's order not to comply." Id. at 31, 243.
  91. ↑ See Ukraine Report at 216-227, 229.
  92. ↑ See Ukraine Report at 211-215.
  93. ↑ See Watkins, 354 U.S. at 187-88 ("It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation.").
  94. ↑ See Ukraine Report at 255-60. The Minority's dissenting views on the nature of impeachable offenses consist almost exclusively of testimony by Professor Turley, who contends that the President did not obstruct the inquiry because "many officials opted to testify, despite the orders from the President that they should decline." Minority Views, Constitutional Grounds for Impeachment (2019), attaching Written Statement of Jonathan Turley, Dec. 4, 2019, at 42. This is a curious argument. When the House issues subpoenas in an impeachment inquiry and the President orders total defiance, it is hardly a point in the President's favor that a handful of his subordinates disobey that unlawful order (even as most officials comply, and even as all agencies and offices comply). Professor Turley further notes that the officials who violated President Trump's directive "remain in federal service in good standing." Id. But the fact that President Trump has not (yet) fired or disciplined the witnesses who came forward in no respect ameliorates his unlawful order. His attempts at thwarting their testimony is itself grounds for impeachment—and, significantly, he succeeded in substantially obstructing the House impeachment inquiry as to the strong majority of documents and testimony sought.
  95. ↑ Committee Report on Nixon Articles of Impeachment (1974 at 189.
  96. ↑ Id.
  97. ↑ McGahn, 2019 WL 6312011, at *28 (D.D.C. Nov. 25, 2019), appeal docketed, No. 19-5331 (D.C. Cir. Nov. 26, 2019).
  98. ↑ Nixon Impeachment Report (1974), at 213.
  99. ↑ The President's Remarks Announcing Developments and Procedures to be Followed in Connection with the Investigation, The White House, Apr. 17, 1973 ("All members of the White House Staff will appear voluntarily when requested by the committee. They will testify under oath, and they will answer fully all proper questions.").
  100. ↑ Committee Report on Nixon Articles of Impeachment (1974) at 478-82.
  101. ↑ See Oct. 8 Cipollone Letter. President Trump also raised arguments relating to "confidentiality interests" and the socalled doctrine of "absolute immunity." Id.; see also, e.g., McGahn, 2019 WL 6312011, at *34-45. As to the first argument, "[t]here is no basis in the law of executive privilege for declaring a categorical refusal to respond to any House subpoena. In an impeachment inquiry the House's need for information and its Constitutional authority are at their greatest, and the Executive's interest in confidentiality must yield." Ukraine Report, at 214. Moreover, although executive privilege could not excuse or justify the President's categorical and indiscriminate defiance, it bears notice that the President has not actually asserted executive privilege in the House's impeachment inquiry. Turning to the second argument, the House has never recognized the fictional theory of "absolute immunity" as a valid ground for defying an impeachment inquiry, and every federal court to consider the doctrine of "absolute immunity" has rejected it. See McGahn, 2019 WL 6312011, at *45; Comm. on Judiciary, U.S. House of Representatives v. Mier, 558 F. Supp. 2d 135-36 (D.D.C. 2008). It is inconceivable that this doctrine has lurked, in hiding, for centuries as a hidden excuse for Presidents to block untold numbers of current and former Executive Branch officials from giving any testimony whatsoever to the House. In any event, President Trump's direction that the Executive Branch undertake a total blockade of the House impeachment inquiry extends well beyond even the most extreme view of "absolute immunity," and so this doctrine neither excuses nor explains the President's position as articulated in Mr. Cipollone's letter.
  102. ↑ U.S. Const. art. I, § 2.
  103. ↑ Id. at § 5.
  104. ↑ See supra The Impeachment Inquiry.
  105. ↑ See supra The Impeachment Inquiry.
  106. ↑ President Trump's process objections are addressed individually, and at much greater length, in the Ukraine Report. We incorporate its reasoning and conclusions by reference. The October 8 letter from Mr. Cipollone raises two additional arguments, both of which fail for the reasons set forth above. First, the President cannot defy an impeachment inquiry just because he concludes that the minority has not been afforded sufficient subpoena rights in House committees; the House has both the "sole Power of Impeachment" and the sole power to "determine the Rules of its Proceedings." Nor can the President ignore Congressional subpoenas, or direct others to do so, by complaining that the House has informed subpoena recipients that it will treat non-compliance as evidence of obstruction. The House does not somehow forfeit its "sole Power of Impeachment" by pointing out that unlawful defiance of its duly-authorized Congressional subpoenas may have legal consequences or bear on the impeachment inquiry.
  107. ↑ See Oct. 8 Cipollone Letter at 6 ("It is transparent that you have resorted to such unprecedented and unconstitutional procedures because you know that a fair process would expose the lack of any basis for your inquiry. Your current effort is founded on a completely appropriate call on July 25, 2019, between President Trump and President Zelenskyy of Ukraine [. . .] That record clearly established that the call was completely appropriate, that the President did nothing wrong, and that there is no basis for an impeachment inquiry.").
  108. ↑ Oct. 8 Cipollone Letter at 7, 8.
  109. ↑ See id. at 5 ("In fact, your transparent rush to judgment, lack of democratically accountable authorization, and violation of basic rights in the current proceedings make clear the illegitimate, partisan purpose of this purported 'impeachment inquiry.'"); see also To End A Presidency at 64-66.
  110. ↑ See Dr. Bonham's Case, 8 Co. Rep. 114a, 118b, 77 Eng. Rep. 638, 654 (1610) (Coke, C.J.).
  111. ↑ U.S. Const. art. I, §§ 2, 3.
  112. ↑ Nixon v. United States, 506 U.S. 224, 235 (1993) (quotation marks and citation omitted).
  113. ↑ Cf. id.
  114. ↑ Committee Report on Nixon Articles of Impeachment (1974) at 210-212.
  115. ↑ Id. at 210 ("The Committee concluded that it would be inappropriate to seek the aid of the courts to enforce its subpoenas against the President. This conclusion is based on the constitutional provision vesting the power of impeachment solely in the House of Representatives and the express denial by the Framers of the Constitution of any role for the courts in the impeachment process.").
  116. ↑ See id. at 212.
  117. ↑ Id. at 212.
  118. ↑ Id.
  119. ↑ In President Nixon's case, the Special Prosecutor subpoenaed certain Oval Office tape recordings and then litigated the President's failure to comply with the subpoena. See United States v. Nixon, 418 U.S. 683, 686 (1974). The Judiciary Committee did not file suit when the President failed to comply fully with its own subpoenas.
  120. ↑ H. Res. 755, Articles of Impeachment Against President Donald J. Trump: Markup Before the H. Comm. on the Judiciary, 116th Cong. (2019) (Statement of Rep. James Sensenbrenner).
  121. ↑ Brief for Defendant-Appellant at 14-47, Comm. on the Judiciary, U.S. House of Representatives v. Donald F. McGahn II, No. 19-5331 (D.C. Cir. filed Dec. 9, 2019) (arguing courts lack jurisdiction to adjudicate subpoena enforcement suits by the House and that the House is not even injured for purposes of Article III standing when Executive Branch officials defy subpoenas); Memorandum of Points and Authorities in Support of Defendants' and Defendants-Intervenors' Motion to Dismiss, Comm. on Ways and Means, U.S. House of Representatives v. Dep't of Treasury, No. 19 Civ. 1974 (D.D.C. filed Sept. 6, 2019).
  122. ↑ See, e.g., United States v. Am. Tel. & Tel. Co., 551 F.2d 384, 391 (D.C. Cir. 1976) ("the House as a whole has standing to assert its investigatory power"); McGahn, 2019 WL 6312011 at *16-34 (D.D.C. Nov. 25, 2019) (rejecting DOJ's jurisdictional arguments); Comm. on Oversight & Gov't Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013) (same); Miers, 558 F. Supp. 2d at 65-99 (same).
  123. ↑ See Miers, 558 F. Supp. 2d 53 (D.D.C. July 31, 2008) (holding Miers was required to testify); 542 F.3d 909 (D.C. Cir. Oct. 6, 2008) (staying decision pending appeal); Unopposed Motion for Voluntary Dismissal by Plaintiff at 3, Miers (D.D.C. filed Oct. 22, 2009) (Miers testified in a transcribed interview in June 2009).
  124. ↑ The district court rejected DOJ's motion to dismiss in September 2013, see Holder, 979 F. Supp. 2d 1; ordered production only of documents for which DOJ did not assert any privileges in August 2014, see 2014 WL 12662665 (D.D.C. Aug. 20, 2014); and did not order production of additional documents until January 2016, see 156 F. Supp. 3d 101 (D.D.C. Jan. 19, 2016).
  125. ↑ McGahn, 2019 WL 6312011; see id. at *4-6 (describing case history); see Order, No. 19-5331 (D.C. Cir. Nov. 27, 2019) (entering "administrative stay" and scheduling argument in January).
  126. ↑ Constitutional Grounds for Impeachment (2019) at 10.
  127. ↑ H. Res. 755, 116th Cong. Art. II. (2019).
  128. ↑ 2 Farrand, Records of the Federal Convention at 65 (George Mason).
  129. ↑ Id. at 66 (Elbridge Gerry).
  130. ↑ The Federalist No. 69 at 444-45 (Alexander Hamilton) (Benjamin Fletcher Wright ed. 1961).
  131. ↑ 2 Farrand, Records of the Federal Convention at 66 (James Madison).
  132. ↑ Memorandum of Law in Support of Plaintiff's Emergency Motion For a Temporary Restraining Order and a Preliminary Injunction, Trump v. Vance, Jr. No. 19 Civ. 08694, 2019 WL 5557333 (S.D.N.Y Sept. 20, 2019) ("Under Article II, the Supremacy Clause, and the structure of our Constitution, the President of the United States cannot be 'subject to the criminal process' while he is in office."); Ann E. Marimow & Jonathan O'Connell, In Court Hearing, Trump Lawyer Argues a Sitting President Would be Immune from Prosecution Even If He Were to Shoot Someone, Wash. Post, Oct. 23, 2019.
  133. ↑ Trump v. Vance, 941 F.3d 631, 640 (2d Cir. 2019) ("The President relies on what he described at oral argument as 'temporary absolute presidential immunity' – he argues that he is absolutely immune from all stages of state criminal process while in office, including pre-indictment investigation . . . .").
  134. ↑ Letter from John M. Dowd & Jay A. Sekulow to Robert S. Mueller, III (Jan. 29, 2018) ("It remains our position that the President's actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.").
  135. ↑ McGahn, 2019 WL 6312011 at *34 ("DOJ asserts that current and former senior-level presidential aides have 'absolute testimonial immunity' from compelled congressional process, as a matter of law; therefore, if the President invokes 'executive privilege' over a current or former aides' testimony—as he has done with respect to McGahn—that aide need not accede to the lawful demands of Congress."). See also, e.g., Ukraine Report at 230 (President Trump ordered Acting Chief of Staff Mick Mulvaney to defy a subpoena for his testimony on grounds of "absolute immunity"); id. at 231 (same, with respect to White House advisor Robert Blair); id. at 232 (same, with respect to Deputy Counsel to the President for National Security Affairs John Eisenberg).
  136. ↑ See Oct. 8 Cipollone Letter at 2. See also, e.g., Congressional Committee's Request for the President's Tax Returns, 43 Op. O.L.C. __, 2019 WL 2563046 (supporting Department of the Treasury's decision to override plain statutory text requiring disclosure of the President's tax returns based on purported absence of a "legitimate legislative purpose").
  137. ↑ See, e.g., Mazars, 940 F.3d at 717; Trump v. Deutsche Bank AG,—F.3d —, 2019 WL 6482561 at *2 (2d Cir. Dec. 3, 2019).
  138. ↑ McGahn, 2019 WL 6312011, at *26 ("Here, as in Miers, DOJ attempts to shoehorn its emasculating effort to keep House committees from turning to the courts as a means of vindicating their constitutional interests into various categories of established legal arguments, some of which overlap substantially with jurisdictional contentions that the Court has already considered and rejected."). Compare Memorandum of Points and Authorities in Support of Defendants' and Defendant Intervenors' Motion to Dismiss at 13, Comm. on Ways and Means, U.S. House of Representatives v. Dep't of Treasury, No. 19 Civ. 01974 (D.D.C. filed Sept. 6, 2019) (warning against "[t]he exertion of Federal judicial power to declare victors in inter-branch disputes of this nature"), with Brief for the United States as Amicus Curiae at 2, Trump v. Deutsche Bank, No. 19-1540 (2d Cir. filed Aug. 19, 2019) (encouraging the court to "engage in a searching evaluation of subpoenas directed at the President").
  139. ↑ Mazars, 940 F.3d at 750 (quoting DOJ's brief, "The House's impeachment power is an express authority whose exercise does not require a connection to valid legislation. But the Committee has asserted neither jurisdiction over, nor an objective of pursuing impeachment.").
  140. ↑ Oct. 8 Cipollone Letter at 8 ("For the foregoing reasons, the President cannot allow your constitutionally illegitimate proceedings to distract him and those in the Executive Branch from their work on behalf of the American people.").
  141. ↑ The President has accompanied this conduct with a series of public statements advocating the view that it is illegitimate for the House to investigate him. See Ukraine Report at 28-29 ("He has publicly and repeatedly rejected the authority of Congress to conduct oversight of his actions and has directly challenged the authority of the House to conduct an impeachment inquiry into his actions regarding Ukraine . . . . [President Trump's] rhetorical attacks appeared intended not just to dispute public reports of his misconduct, but to persuade the American public that the House lacks authority to investigate the President.").
  142. ↑ H. Res. 755, 116th Cong. Art. II (2019).
  143. ↑ This Committee has undertaken an investigation relating to the Special Counsel's report. That includes inquiring into President Trump's obstruction of the Special Counsel, as well as a review of other aspects of the Special Counsel's underlying work that the President obstructed. As part of this investigation, the Committee has sought to compel testimony by former White House Counsel Donald F. McGahn II, and to review certain grand jury materials relating to the Special Counsel's report. Should the Committee obtain the information, it would be utilized, among other purposes, in a Senate trialon these articles of impeachment, if any. The Committee, moreover, has continued and will continue those investigations consistent with its own prior statements respecting their importance and purposes.
  144. ↑ See generally Special Counsel Robert S. Mueller, III, Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Vols. I and II (March 2019) (hereinafter, "Mueller Report").
  145. ↑ Mueller Report Vol. I at 1.
  146. ↑ Ukraine Report at 13 ("[T]he U.S. Intelligence Community had unanimously determined that Russia, not Ukraine, interfered in the 2016 election to help the candidacy of Donald Trump.").
  147. ↑ Mueller Report Vol. I at 5.
  148. ↑ See generally Mueller Report Vol. II.
  149. ↑ See id.
  150. ↑ See id. at 77-90.
  151. ↑ See id. at 90-98.
  152. ↑ See id. at 113-20.
  153. ↑ See id. at 120-56.
  154. ↑ See id. at 87-90, 97-98, 118-20, 131-33, 153-56.
  155. ↑ The same point applies to President Trump's unjustified and improper obstruction of this Committee's efforts to investigate the evidence bearing on the question of whether President Trump committed obstruction of justice in his efforts to undermine the Special Counsel's investigation. See, e.g., Nadler Statement on White House Obstruction of Dearborn, Porter & Lewandowski Testimony, House Committee on the Judicary, Sept. 16, 2019 (addressing White House obstruction of witness testimony on grounds of "absolute immunity"). Of course, several matters relating to that issue are currently pending before the courts. See, e.g., McGahn, 2019 WL 6312011, at *28 (D.D.C. Nov. 25, 2019), appeal docketed, No. 19-5331 (D.C. Cir. Nov. 26, 2019).
  156. ↑ Ukraine Report at 9.
  157. ↑ H. Res. 755, 116th Cong. Art. II (2019.
  158. ↑ Id.
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