Report of the Committee on the Judiciary, House of Representatives: Impeachment of Donald J. Trump, President of the United States/The Impeachment Inquiry

From Wikisource
Jump to navigation Jump to search
​

The Impeachment Inquiry

I.⁠Introduction

The House of Representatives conducted a fair, thorough, and transparent impeachment inquiry under extraordinary circumstances. For the first time in modern history, committees of the House acted as original factfinders in a Presidential impeachment. Unlike in the previous impeachment inquiries into Presidents Richard M. Nixon and William J. Clinton, the House did not significantly rely on evidence obtained from other investigative bodies. Rather, committees of the House gathered evidence themselves. They did so fairly and efficiently, despite President Trump's concerted efforts to obstruct their work.

From September through November of this year, the House Permanent Select Committee on Intelligence (HPSCI), together with the Committees on Oversight and Reform and Foreign Affairs (collectively, "the Investigating Committees"), collected evidence that President Trump abused his office in soliciting and inducing foreign interference in the 2020 United States Presidential election. Despite the President's efforts to obstruct the Congressional investigation that followed, the Investigating Committees questioned seventeen current and former Trump Administration officials. In addition, although Executive Branch agencies, offices, and officials continue to defy subpoenas for documents at President Trump's direction, the Investigating Committees obtained from certain witnesses hundreds of text messages in their personal possession that corroborated their testimony, as well as reproductions of contemporaneous emails exchanged as the President's offenses were unfolding. Minority Members and their counsel participated equally in witness questioning, and the Investigating Committees released public transcripts of every deposition and interview, as well as significant documentary evidence upon which they relied. HPSCI then transmitted that evidence to the Judiciary Committee, together with a nearly 300-page public report documenting the Investigating Committees' findings, and a 123-page report containing the Minority's views.

The Judiciary Committee, consistent with House precedent, afforded ample opportunities for President Trump and his attorneys to participate as it considered articles of impeachment. Those opportunities were offered not as a matter of right, but as privileges typically afforded to Presidents pursuant to House practice. Article I of the Constitution vests the House with full discretion to structure impeachment proceedings, assigning to it both the "sole Power of Impeachment" and the authority to "determine the Rules of its Proceedings." [1] The purpose of such proceedings is not to conduct a full trial of offenses; it is "to gather evidence to determine whether the president may have committed an impeachable offense" and whether he ought to stand trial for that offense in the Senate.[2] In accordance with that purpose and House practice, President Trump was offered procedural privileges that were ​equivalent to or exceeded those afforded to Presidents Nixon and Clinton.

II.⁠Background: Conduct of the House's Inquiry and Privileges Afforded to President Trump

A.⁠Proceedings Leading to Adoption of House Resolution 660

In early 2019, the Judiciary Committee began investigating potential abuses of office by President Trump, including obstruction of law enforcement investigations relating to Russia's interference in the 2016 United States Presidential election.[3] That investigation, which came to include consideration of whether to recommend articles of impeachment, was conducted in full public view and through public hearings. To the extent the Committee reviewed or obtained materials that it did not make available to the public, it did so in order to accommodate specific requests by the Executive Branch. The Committee also obtained responses to written questions from one fact witness and made those responses available to the public;[4] and it conducted one closed-door transcribed interview of a fact witness during which White House attorneys were present, then released a transcript of the interview the following day.[5] During this period, HPSCI also continued to investigate foreign intelligence and counterintelligence risks arising from efforts by Russia and other foreign powers to influence the United States political process during and since the 2016 election.[6]

Beginning in the spring and summer of 2019, evidence came to light that President Trump and his associates might have been seeking the assistance of another foreign government, Ukraine, to influence the upcoming 2020 election.[7] On September 9, 2019, the Investigating Committees announced they were launching a joint investigation and requested documents and records from the White House and the Department of State. In parallel, evidence emerged that the President may have attempted to cover up his actions and prevent the transmission of information to which HPSCI was entitled by law.[8] Given the gravity of these allegations and the immediacy of the threat to the next ​Presidential election, Speaker Nancy P. Pelosi announced on September 24, 2019 that the House would proceed with "an official impeachment inquiry," under which the Investigating Committees, the Judiciary Committee, and the Committees on Financial Services and Ways and Means would continue their investigations of Presidential misconduct.[9]

Following that announcement, the Investigating Committees issued additional requests and subpoenas for witness interviews and depositions and for documents in the possession of the Executive Branch.[10] The three committees "made clear that this information would be 'collected as part of the House's impeachment inquiry and shared among the Committees, as well as with the Committee on the Judiciary as appropriate.'"[11] However, as detailed further in the portion of this Report discussing obstruction of Congress, White House Counsel Pat A. Cipollone sent a letter on October 8, 2019 to Speaker Pelosi and Chairmen Adam B. Schiff, Eliot L. Engel, and Elijah E. Cummings stating that "President Trump and his Administration cannot participate in your partisan and unconstitutional inquiry."[12] As a result, the Administration refused—and continues to refuse—to produce any documents subpoenaed by the Investigating Committees as part of the impeachment inquiry, and nine current or former Administration officials remain in defiance of subpoenas for their testimony.[13]

Nevertheless, many other current and former officials complied with their legal obligations to appear for testimony, and the Investigating Committees conducted depositions or transcribed interviews of seventeen witnesses.[14] These depositions and interviews were conducted consistent with the Rules of the House and with longstanding procedures governing investigations by HPSCI and the other committees.[15] Members of the Minority previously advocated expanding these authorities, explaining that "[t]he ability to interview witnesses in private allows committees to gather information confidentially and in more depth than is possible under the five-minute rule governing committee ​hearings. This ability is often critical to conducting an effective and thorough investigation."[16]

All Members of the Investigating Committees were permitted to attend these depositions and interviews, along with Majority and Minority staff. Members and counsel for both the Majority and Minority were permitted equal time for questioning witnesses. Transcripts of all depositions and interviews were publicly released and made available through HPSCI's website on a rolling basis, subject to minimal redactions to protect classified or sensitive information.

B.⁠House Resolution 660 and Subsequent Proceedings

On October 31, 2019, the House voted to approve H. Res. 660, which directed the Judiciary Committee as well as HPSCI and the Committees on Oversight and Reform, Foreign Affairs, Financial Services, and Ways and Means to "continue their ongoing investigations as part of the existing . . . inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump."[17] As the accompanying report by the Committee on Rules explained, HPSCI, in coordination with the Committees on Oversight and Reform and Foreign Affairs, was conducting an investigation that focused on three interrelated questions:

1. Did the President request that a foreign leader and government initiate investigations to benefit the President's personal political interests in the United States, including an investigation related to the President's political rival and potential opponent in the 2020 U.S. presidential election?

2. Did the President—directly or through agents—seek to use the power of the Office of the President and other instruments of the federal government in other ways to apply pressure on the head of state and government of Ukraine to advance the President's personal political interests, including by leveraging an Oval Office meeting desired by the President of Ukraine or by withholding U.S. military assistance to Ukraine?

3. Did the President and his Administration seek to obstruct, suppress or cover up information to conceal from the Congress and the American people evidence about the President's actions and conduct?[18]

The report explained that although a full House vote was by no means legally necessary, H. Res. 660 "provides a further framework for the House's ongoing impeachment inquiry."[19] That framework would be "commensurate with the inquiry process followed in the cases of President Nixon and President Clinton"—during which the House undertook various investigatory steps before voting to ​authorize and structure proceedings for an impeachment inquiry.[20]

One significant difference, however, was that in this instance the House was conducting and would continue to conduct its own factfinding and collection of evidence through its investigative committees. As HPSCI has explained, "[u]nlike in the cases of Presidents Nixon and Clinton, the House conducted a significant portion of the factual investigation itself because no independent prosecutor was appointed to investigate President Trump's conduct."[21] Nevertheless, H. Res. 660 set forth detailed procedures that resulted in maximal transparency during the ongoing fact-finding stage of the investigation and provided numerous privileges for President Trump and his counsel. The procedures entailed two stages for the public-facing phase of the impeachment inquiry: the first before HPSCI and the second before the Judiciary Committee.

First, HPSCI was authorized to conduct open hearings during which the Chairman and Ranking Member had extended equal time to question witnesses or permit their counsels to do so.[22] The Ranking Member was also permitted to identify and request witnesses and to issue subpoenas for documents and witness testimony with the concurrence of the Chairman, with the option to refer subpoena requests for a vote before the full Committee if the Chairman declined to concur.[23] H. Res. 660 further directed HPSCI to issue a report describing its findings and to make that report available to the public, and to transmit that report along with any supplemental materials and Minority views to the Judiciary Committee.[24]

Pursuant to H. Res. 660, HPSCI held five days of public hearings during which twelve current or former Trump Administration officials testified. These witnesses spoke in extensive detail about President Trump's repeated and prolonged efforts to pressure Ukraine into announcing and conducting baseless investigations into the President's political rival and into a discredited conspiracy theory that Ukraine, not Russia, interfered in the 2016 election. They also testified regarding United States policy interests regarding Ukraine, the value and strategic importance of the military and security assistance and the diplomatic visit to the White House that the President withheld from Ukraine, and the actions taken by individuals on the President's behalf in aid of his misconduct. In addition, the Investigating Committees received from certain witnesses hundreds of text messages as well as contemporaneous emails corroborating their testimony. The majority of witnesses maintained, however, that because they were government employees their documents and communications remained the property of Executive Branch offices and agencies. These offices and agencies, based on the President's direction, instructed officials not to provide any materials pursuant to the Investigating Committees' subpoenas.

Three of the witnesses who testified during the public hearings—Ambassador Kurt D. Volker, ​Undersecretary of State David M. Hale, and former National Security Council official Timothy A. Morrison—did so at the request of the Minority. As Chairman Schiff explained, however, the impeachment inquiry would not be permitted to serve as a means for conducting "the same sham investigations . . . that President Trump pressed Ukraine to conduct for his personal political benefit."[25] Chairman Schiff likewise made clear that he would not "facilitate efforts by President Trump and his allies in Congress to threaten, intimidate, and retaliate against the whistleblower who courageously raised the initial alarm."[26]

HPSCI's public hearings concluded on November 21, 2019. On December 3, 2019, in consultation with the Committees on Oversight and Reform and Foreign Affairs, HPSCI released and voted to adopt a report of nearly 300 pages detailing its extensive findings about the President's abuse of his office and obstruction of Congress. Chairman Schiff noted that although the investigation would continue, "[t]he evidence of the President's misconduct is overwhelming," and the need to submit an impeachment referral was too urgent to delay. [27] On December 6, 2019, and pursuant to H. Res. 660, the Investigating Committees transmitted a final version of that report, together with a report documenting the Minority's views and evidence upon which the report relied, to the Judiciary Committee. [28] The Committees on the Budget and Foreign Affairs transmitted certain materials to the Judiciary Committee as well. [29] In addition, HPSCI subsequently made a classified supplemental submission provided by one of its witnesses available for Judiciary Committee Members to review in a secure facility.[30]

With respect to proceedings before the Judiciary Committee, pursuant to H. Res. 660, the Rules Committee established "Impeachment Inquiry Procedures in the Committee on the Judiciary" that provided a host of procedural privileges for President Trump. [31] Those procedures required that President Trump's counsel be furnished with copies of all materials transferred to the Judiciary Committee by HPSCI and the other committees investigating the President's misconduct. [32] They ​afforded President Trump numerous opportunities to participate in the Judiciary Committee's proceedings through counsel. Those opportunities included the ability to present evidence orally or in writing; to question committee counsels presenting evidence; to attend all hearings of the Judiciary Committee, including those held in executive session; to raise objections during examinations of witnesses; to cross-examine any witness called before the Committee; and to request that additional witnesses be called.[33] In addition, as was the case for HPSCI, H. Res. 660 permitted the Ranking Member of the Judiciary Committee to issue subpoenas for documents and witness testimony with the concurrence of the Chairman, or to refer any such decision for a vote by the full Committee.[34]

On November 26, 2019, Chairman Nadler wrote to President Trump informing him of these procedures and the Committee's intention to hold a hearing the following week, on December 4, regarding constitutional grounds for impeachment. Chairman Nadler explained the purpose of the hearing and requested that President Trump indicate whether he and his counsel wished to participate and question the witness panel. [35] On November 29, 2019, Chairman Nadler wrote to President Trump further requesting that his counsel indicate whether he planned to participate in any of the Committee's upcoming proceedings and, if so, which privileges his counsel would seek to exercise. [36] On December 1, 2019, Mr. Cipollone responded that counsel for the President would not participate in the December 4 hearing, characterizing that process as "an after-the-fact constitutional law seminar." [37] On December 6, 2019, Mr. Cipollone sent Chairman Nadler another letter indicating the President would not avail himself of any other opportunities to participate in the Committee's proceedings, urging the Committee to "end this inquiry now and not waste even more time with additional hearings." [38] Mr. Cipollone quoted President Trump's recent statement that "if you are going to impeach me, do it now, fast, so we can have a fair trial in the Senate." [39]

On December 4, 2019, the Judiciary Committee held its public hearing on Constitutional Grounds for Presidential Impeachment and heard testimony from four constitutional experts, including one called by the Minority. [40] Consistent with the Judiciary Committee's proceedings during the ​impeachment of President Clinton, these experts discussed the kinds of conduct that amounts to "high Crimes and Misdemeanors" under the Constitution and whether the President's conduct met that standard. [41] The Chairman and Ranking Member were allotted equal periods of extended time for questioning, along with Majority and Minority counsel. On December 7, 2019, the Committee Majority staff released its report on this topic, outlining the grounds for impeachment as contemplated by the Founders and addressing certain arguments raised by the President.See Constitutional Grounds for Impeachment (2019). The Minority staff published its own views as well, including the written testimony of its witness during the December 4 hearing.[42]

On December 9, 2019, in accordance with the "Impeachment Inquiry Procedures" promulgated pursuant to H. Res. 660, the Judiciary Committee conducted another public hearing to evaluate the evidence gathered by HPSCI.[43] Majority and Minority counsel for the Judiciary Committee presented opening statements, followed by presentations of the evidence from Majority and Minority counsel for HPSCI. The Chairman and Ranking Member were again allotted equal periods of extended time for questioning, with the ability to yield time for questioning by Majority and Minority counsels. The Majority counsel for HPSCI presented HPSCI's findings in detail and was subject to extensive questioning throughout the hearing's nine-hour duration. Minority counsel for HPSCI presented the Minority's views and was subject to questioning as well.

On December 10, 2019, Chairman Nadler introduced a resolution containing two articles of impeachment against President Trump for abuse of office and obstruction of Congress.[44] The Committee began debate the following evening and resumed debate throughout the day of December 12. On December 13, 2019, the Committee voted to report both articles of impeachment favorably to the House.

III.⁠The House's Inquiry Was Fully Authorized by House Rules and Precedent

The House's conduct of its impeachment inquiry—through which Committees of the House began investigating facts prior to a formal vote by the House—was fully consistent with the Constitution, the Rules of the House, and House precedent. The House's autonomy to structure its own proceedings for an impeachment inquiry is rooted in two provisions of Article I of the Constitution. First, Article I vests the House with the "sole Power of Impeachment."[45] It contains no other requirements as to how the House must carry out that responsibility. Second, Article I further states ​that the House is empowered to "determine the Rules of its Proceedings." [46] Taken together, these provisions give the House sole discretion to determine the manner in which it will investigate, deliberate, and vote upon grounds for impeachment.

The Rules of the House do not prescribe any particular manner in which the House or any of its committees must conduct impeachment inquiries. Although the Judiciary Committee has traditionally been "responsible for considering and potentially recommending articles of impeachment to the full House,"[47] it is not the exclusive factfinding body through which all evidence bearing on impeachment must be collected. To the contrary, as discussed further below, in the last two modern Presidential impeachments the Judiciary Committee relied on evidence obtained through prosecutors, grand juries, and (in the case of President Nixon) a committee of the Senate. In addition, the House Rules provide HPSCI and the standing committees with robust investigative authorities, including the power to issue subpoenas and take depositions.[48] Each of the three committees indisputably has oversight jurisdiction to investigate these matters.[49]

Throughout 2019, HPSCI continued to investigate Russia's interference in the 2016 election as well as ongoing efforts by Russia and other adversaries to interfere in upcoming elections. As allegations emerged that President Trump and his personal attorney, Rudolph Giuliani, were acting to solicit and pressure Ukraine to launch politically motivated investigations, the Investigating Committees announced publicly on September 9, 2019, that they were conducting a joint investigation of the President's conduct toward Ukraine.[50]

The principal objection by the President has consisted of a claim that no committee of the House was permitted to investigate Presidential misconduct for impeachment purposes unless or until the House enacted a resolution fully "authorizing" the impeachment inquiry. [51] That claim has no basis in the Constitution, any statutes, the House Rules, or House precedent. As already noted, the Constitution says nothing whatsoever about any processes or prerequisites governing the House's exercise of its "sole Power of Impeachment." To the contrary, the Constitution's Impeachment and Rulemaking Clauses indicate that it is only for the House itself to structure its impeachment investigations and proceedings. Yet the House Rules do not preclude committees from inquiring into potential grounds for impeachment. As a federal district court recently confirmed, the notion that a full House vote is ​required to authorize an impeachment inquiry "has no textual support in the U.S. Constitution [or] the governing rules of the House."[52]

Furthermore, House precedent makes manifestly clear that the House need not adopt a resolution authorizing or structuring an impeachment inquiry before such an inquiry can proceed. As Jefferson's Manual notes, "[i]n the House various events have been credited with setting an impeachment in motion," including charges made on the floor, resolutions introduced by members, or "facts developed and reported by an investigating committee of the House." [53] As Chief Judge Howell explained, the House has "[i]ndisputably initiated impeachment inquiries of federal judges without a House resolution 'authorizing' the inquiry."[54] One such inquiry involved a lengthy investigation of a sitting Supreme Court Justice.[55] Indeed, several "federal judges have been impeached by the House without a House resolution 'authorizing' an inquiry."[56] For example, the Judiciary Committee investigated grounds for the impeachment of Judge Walter Nixon following a referral by the United States Judicial Conference and the introduction of a resolution for his impeachment.[57] The Committee—without any direct authorization or instruction from the full House—subsequently adopted articles of impeachment, which were approved by a vote of the full House. The Senate later voted to convict Judge Nixon and remove him from office.[58] Similar proceedings occurred in impeachments of two other judges.[59] Indeed, as recently as the 114th Congress, the Judiciary Committee considered impeachment of the Commissioner of the Internal Revenue Service following a referral from another committee and absent a full vote of the House for an impeachment inquiry.[60]

In addition, in many prior instances in which the full House adopted resolutions authorizing and directing the Judiciary Committee to undertake impeachment inquiries, the resolutions served in part to provide the Committee with authorities it did not already have. For example, the 1974 resolution authorizing and directing the impeachment inquiry into President Nixon served to clarify the scope of the Committee's subpoena authority and authorized the Committee and its counsel to take depositions.[61] Today, the House Rules for standing committees and for HPSCI already provide these ​authorities.[62] Thus, as a practical matter, a full vote of the House is no longer needed to provide investigating committees with the kinds of authorities needed to conduct their investigations. Here, of course, the House did ultimately adopt H. Res. 660, which explicitly directed HPSCI and the Committees on the Judiciary, Oversight and Reform, Foreign Affairs, Financial Services, and Ways and Means to "continue their ongoing investigations" as part of the House's "existing" impeachment inquiry. Although the House was not obligated to enact such a resolution, H. Res. 660 affirmed the authority of the House and these committees to continue their investigations and provided further structure to govern the inquiry moving forward.

This sequence of events in the House's impeachment inquiry into President Trump bears substantial resemblance to the development of the House's impeachment inquiry into President Nixon. The Judiciary Committee's consideration of impeachment resolutions against President Nixon began in October 1973, when various resolutions calling for President Nixon's impeachment were introduced in the House and referred to the Judiciary Committee.[63] Over the next several months, the Committee investigated the Watergate break-in and coverup (among other matters) using its existing investigatory authorities.[64] The Committee also hired a special counsel and other attorneys to assist in these efforts, and the House adopted a resolution in November 1973 to fund the Committee's investigations.[65] As the Committee explained in a February 1974 staff report, its work up through that time included forming multiple task forces within the staff to gather evidence organized around various subjects of interest.[66] All of this occurred before the House approved a resolution directing the Judiciary Committee to investigate whether sufficient grounds existed to impeach President Nixon.[67] So too here, committees of the House began investigating allegations of misconduct by President Trump before the House voted to approve H. Res. 660. That course of events is consistent not only with the House's impeachment inquiry against President Nixon but with common sense. After all, before voting to conduct an impeachment inquiry, the House must have some means of ascertaining the nature and seriousness of the allegations and the scope of the inquiry that may follow. It defies logic to suggest that House committees have no authority to begin examining the President's potentially impeachable misconduct unless or until the full House votes to conduct an impeachment inquiry.

IV.⁠President Trump Received Ample Procedural Protections

​
A.⁠General Principles

As Chairman Rodino observed during this Committee's impeachment proceedings against President Nixon, "it is not a right but a privilege or a courtesy" for the President to participate through counsel in House impeachment proceedings.[68] An impeachment inquiry is not a trial; rather, it entails a collection and evaluation of facts before a trial occurs in the Senate. In that respect, the House acts analogously to a grand jury or prosecutor, investigating and considering the evidence to determine whether charges are warranted. Federal grand juries and prosecutors, of course, conduct their investigations in secret and afford little or no procedural rights to targets of investigations. [69] This type of confidentiality is necessary to (among other things) ensure freedom in deliberations, "prevent subornation of perjury or tampering with the witnesses who may testify," and "encourage free and untrammeled disclosures by persons who have [relevant] information." [70]

Nonetheless, in light of the gravity of the decision to impeach the President and the ramifications that such a decision has for the Nation as a whole, the House has typically provided a level of transparency in impeachment inquiries and has afforded the President certain procedural privileges. Although President Trump has at times invoked the notion of "due process," "an impeachment inquiry is not a criminal trial and should not be confused with one."[71] Rather, the task of the House—as part of the responsible exercise of its "sole Power of Impeachment"—is to adopt procedures that balance the need to protect the integrity of its investigations, the public interest in a full and fair inquiry, and the President's interest in telling his side of the story.

As discussed below, in past impeachment inquiries this has typically meant that the principal evidence relied upon by the Judiciary Committee is disclosed to the President and to the public—though some evidence in past proceedings has remained confidential. The President has also typically been afforded an opportunity to participate in the proceedings at a stage when evidence has been fully gathered and is presented to the Judiciary Committee. In addition, the President has been entitled to present his own evidence and to request that witnesses be called. He has not, however, been entitled to have counsel present during all interviews of witnesses. The procedures employed by the House here were tailored to these considerations and provided ample protections for President Trump.

B⁠Processes Used in Modern Presidential Impeachments

The processes used in the House's impeachment inquiries into Presidents Nixon and Clinton shared certain common features that informed the House's consideration of how to structure its proceedings with respect to President Trump. In both the Nixon and Clinton impeachments, the House relied substantially on factual evidence collected through prior investigations. These prior investigations did not afford the President any particular procedural rights, such as the opportunity to ​cross-examine witnesses, and many portions were conducted outside public view. At a later stage, when evidence was formally presented to the Judiciary Committee, the President's counsel was permitted to attend, present evidence and call witnesses, and cross-examine witnesses before the Committee.

1.⁠President Nixon

Impeachment proceedings in the House against President Nixon were conducted almost entirely behind closed doors, with the President's counsel afforded certain procedural privileges in later stages of the inquiry. As noted above, the Judiciary Committee began considering impeachment resolutions against President Nixon in October 1973, including by examining evidence in the public domain obtained from other investigations.[72] On February 6, 1974, the House adopted H. Res. 803, which authorized and directed the Committee to investigate "whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Richard M. Nixon."[73] H. Res. 803 gave the Committee authority to subpoena documents and witnesses, to take depositions, and to issue interrogatories. This authority could be exercised by the Chairman or the Ranking Member, with each having the right to refer disagreements to the full Committee.[74] The Committee subsequently adopted procedures imposing tight restrictions on access to materials gathered during the course of its investigation, restricting access to the Chairman, the Ranking Member, and authorized staff.[75] In February and March 1974, the Committee met three times in closed executive sessions—without President Nixon's counsel in attendance—to hear updates from Committee staff.[76] In addition to reviewing information produced in other investigations, Committee staff conducted private interviews of fact witnesses.[77]

Much of the evidence relied upon by the Committee and gathered by staff was obtained through other investigations, including the investigation by the Senate Select Committee on Presidential Campaign Activities. Indeed, the Senate Select Committee's televised hearings are what typically come to mind when one thinks of Congress's investigation of Watergate. The Senate, of course, does not conduct impeachment inquiries; its constitutional function is "to try all Impeachments" if an officer of the United States is impeached by the House.[78] The Senate Select Committee was instead established pursuant to the Senate's general oversight and legislative authorities.[79] In the spring of 1973—before those televised hearings occurred—Select Committee staff interviewed hundreds of witnesses in ​informal private settings or closed-door executive sessions of the Committee.[80] The Select Committee also met in numerous executive sessions to receive progress updates from staff.[81] Only later, beginning in May 1973 and lasting through the summer, did the Select Committee call witnesses to testify in public hearings.[82] Those hearings were not impeachment proceedings, President Nixon was not afforded any procedural privileges, such as the right to have counsel present and to question witnesses.

On February 7, 1974—the day after the House adopted its resolution directing an impeachment inquiry—the Senate Select Committee voted to transmit all of its files, including voluminous nonpublic files, to the House Judiciary Committee.[83] The Judiciary Committee relied on those non-public materials as it gathered evidence. For example, a March 1, 1974 progress report by Judiciary Committee staff noted that its "basic sources" included "the closed files of the [Senate Select Committee], including executive session testimony."[84] In March 1974, the Judiciary Committee also famously received the Watergate grand jury's "roadmap" describing evidence of potential offenses committed by President Nixon.[85] That report—which was not disclosed to the public until nearly 45 years later— described and appended evidence gathered through months of secret grand jury proceedings, during which counsel for defendants were not permitted to appear or question witnesses.

In the course of the Judiciary Committee's investigation, Committee staff also conducted interviews of witnesses in private settings in which no counsel for President Nixon was present. During a closed-door briefing in February 1974, Special Counsel John A. Doar made clear to members that counsel for the Minority would not necessarily be present for all interviews either, depending upon the circumstances.[86] In an effort to develop appropriate procedures governing the inquiry, Committee staff reviewed in detail the proceedings used in prior impeachment inquiries dating back to the eighteenth century. In a memorandum describing their findings, Committee staff noted they had found "[n]o record . . . of any impeachment inquiry in which the official under investigation participated in the investigation stage preceding commencement of Committee hearings."[87] Nor had Committee staff found any instance in which "the official under investigation . . . was granted access to the Committee's evidence before it was offered at a hearing."[88]

Later in the spring and early summer of 1974, the Committee held a series of closed-door meetings for formal presentations of evidence by Committee counsel. As relevant here, the procedures ​it adopted for those presentations allowed the President's counsel to attend strictly as an observer, to be provided with evidence as it was presented, and to present evidence orally or in writing afterward.[89] It was only in the final stages of the Judiciary Committee's inquiry—in late June and July 1974—that President Nixon's counsel was permitted to present evidence and to call and question witnesses.[90] These proceedings also occurred in closed executive sessions of the Committee, as did the questioning of additional witnesses called by the Committee.[91] In total, the Committee heard testimony from nine witnesses in these closed-door hearings, with the transcripts made available to the public afterward.[92] The sole public portions of the Committee's proceedings in which it considered the evidence were several days of debate between members about whether to recommend articles of impeachment.[93] The Committee ultimately voted on July 27, July 29, and July 30, 1974 to adopt three articles of impeachment,[94] and President Nixon resigned from office shortly afterward.

2.⁠President Clinton

The Judiciary Committee's impeachment inquiry concerning President Clinton occurred over a relatively brief period in late 1998 and relied almost entirely upon evidence collected by Independent Counsel Kenneth W. Starr. On September 9, 1998, Independent Counsel Starr notified the Speaker and Minority Leader of the House that his office had transmitted an impeachment referral and 36 sealed boxes of evidence to the Sergeant-at-Arms. [95] Two days later, the House approved H. Res. 525, requiring the Committee to review these materials and determine whether to recommend that the House proceed with an impeachment inquiry.[96] H. Res. 525 further directed that Independent Counsel Starr's report be published as a House document and called for all supporting documents and evidence to be released in the coming weeks, unless determined otherwise by the Committee.[97] Many of those materials, including grand jury materials, were released publicly on September 18 and 28, 1998; some, however, were withheld from the public and the President.[98]

​On October 8, 1998, the House adopted H. Res. 581, which authorized and directed the Judiciary Committee to investigate "whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach William Jefferson Clinton." [99] H. Res. 581 contained express authorization for the Committee to subpoena documents and witnesses and to issue interrogatories. As with the resolution governing the Nixon impeachment inquiry, H. Res. 581 specified that this authority could be exercised by the Chairman or Ranking Member, with each having the right to refer disagreements to the full Committee. [100]

The Committee's proceedings unfolded rapidly afterward. As in the Nixon impeachment proceedings, the Committee relied substantially during its investigation of President Clinton on evidence gathered from a prior investigation—that conducted by Independent Counsel Starr. Committee staff also conducted a limited number of depositions during which counsel for President Clinton was not present; additionally, Committee Majority staff conducted interviews which neither Minority staff nor counsel for the President attended. On two occasions in October and November 1998, White House attorneys wrote to Chairman Hyde and Committee Majority counsel expressing concern about their lack of an opportunity to participate in these depositions and interviews.[101] Majority counsel for the Committee responded by pointing to the Nixon-era staff memorandum as proof that counsel for the President has no right to attend depositions or interviews of witnesses. The President's contrary view, Committee counsel stated, was "on the wrong side of history."[102]

On November 19, 1998, Independent Counsel Starr testified in a public hearing before the Committee. He was the sole witness who presented factual evidence before the Committee, and his testimony consisted primarily of descriptions of evidence his office had gathered in the course of its investigation.[103] That evidence included tens of thousands of pages of grand jury testimony,[104] which by definition was taken in secret and without the opportunity for adversarial questioning. In addition, in November and December 1998, the Subcommittee on the Constitution and the full Committee, respectively, held open hearings on the background and history of impeachment and on the offense of ​perjury.[105] Finally, on December 8 and 9, 1998, President Clinton's legal counsel called multiple panels of outside legal experts and elicited testimony primarily on whether the President's alleged conduct rose to the level of impeachable offenses.[106]

Between December 10 to 12, 1998, the Committee debated and voted to adopt four articles of impeachment.[107] The following week, the articles were debated on the floor of the House over the course of two days. On December 19, 1998, the House voted to approve two of the articles and voted against two others.[108] Shortly after that vote, Ranking Member Conyers wrote to Chairman Hyde expressing concerns that Majority staff had conducted witness interviews without informing the Minority and provided summaries of those interviews to certain members while withholding them from the Minority. Chairman Conyers also raised concerns that members of the Majority had encouraged Members whose votes were still undecided to review certain evidence that had been withheld from the President and the public in an effort to sway those Members' decision-making.[109]

C.⁠The Procedural Protections Afforded to President Trump Met or Exceeded Those Afforded in Past Presidential Impeachment Inquiries

The House's impeachment inquiry provided President Trump procedural protections that were consistent with or in some instances exceeded those afforded to Presidents Nixon and Clinton. The House's inquiry was conducted with maximal transparency: transcripts of all interviews and depositions were made public, and HPSCI and the Judiciary Committee held seven days of public hearings. All documentary evidence relied on in HPSCI's report has been made available to President Trump, and much of it has been made public. Furthermore, during proceedings before the Judiciary Committee, President Trump was offered numerous opportunities to have his counsel participate, including by cross-examining witnesses and presenting evidence. The President's decision to reject these opportunities to participate affirms that his principal objective was to obstruct the House's inquiry rather than assist in its full consideration of all relevant evidence.

1⁠The House's Inquiry Was Conducted with Maximal Transparency

The House's impeachment inquiry against President Trump was unique in its lack of reliance on the work of another investigative body. Instead, the Investigating Committees performed their own extensive investigative work—and they did so with abundant transparency. Twelve key witnesses ​critical to the Committees' investigation testified in publicly televised hearings. All transcripts for each of the seventeen witnesses interviewed or deposed have been made public and posted on HPSCI's website, subject to minimal redactions to protect classified or sensitive information. All documentary evidence relied on in HPSCI's report has been made available to the President and to the Judiciary Committee, and significant portions have been released to the public as well.

Those facts alone render this inquiry more transparent than those against Presidents Nixon and Clinton. As noted previously, during the House's impeachment inquiry into President Nixon, not a single evidentiary hearing took place in public. And although transcripts of closed-door witness hearings were subsequently released, notes or transcripts from private witness interviews were not. In addition, the Judiciary Committee relied on voluminous evidence that was obtained through other investigations, including investigations by prosecutors, a grand jury, and the Senate Select Committee. The Judiciary Committee amassed a collection of files from those investigations and maintained them under strict confidentiality procedures. With respect to President Clinton, the Judiciary Committee's impeachment inquiry was based almost solely upon evidence transmitted by Independent Counsel Starr. That evidence was collected in secret grand jury proceedings or through other law enforcement mechanisms. Even after the evidence was transmitted to the Judiciary Committee, not all of it was disclosed publicly. Furthermore, Committee staff conducted non-public depositions and interviews.

As the Majority counsel for HPSCI explained in his presentation to the Judiciary Committee, conducting witness interviews in a manner that does not allow witnesses to "line up their stories" is a "[b]est investigative practice."[110] Closed-door depositions in the present inquiry were necessary during earlier stages of the investigation to prevent witnesses from reviewing one another's testimony and tailoring their statements accordingly.[111] Indeed, the Judiciary Committee is unaware of any factfinding process—whether in criminal investigations or administrative proceedings—in which all witnesses are interviewed in full view of each other and of the person under investigation. Nevertheless, HPSCI released transcripts of the depositions it conducted on a rolling basis within weeks of their occurrence. In addition, the Judiciary Committee's proceedings were conducted in full public view.

2.⁠The President Was Afforded Meaningful Opportunities to Participate

At the investigative stage before HPSCI and the Committees on Oversight and Reform and Foreign Affairs, President Trump made concerted efforts to ensure that his closest advisors would not be heard from, including by ordering an across-the-board blockade of the House's inquiry and by directing multiple White House and other Executive Branch officials not to appear. Nonetheless, President Trump was offered—but declined—numerous opportunities to participate in the House's proceedings when they reached the Judiciary Committee.

Pursuant to the "Impeachment Inquiry Procedures in the Committee on the Judiciary" described ​above, the President was given the opportunity to: have counsel attend any presentations of evidence before the Committee; have counsel ask questions during those presentations; respond orally or in writing to any evidence presented; request that additional witnesses be called; have counsel attend all other hearings in which witnesses were called; have counsel raise objections during those hearings; have counsel question any such witnesses; and have counsel provide a concluding presentation. For example, President Trump's counsel could have questioned counsel for HPSCI during his detailed presentation of evidence at the Committee's December 9 hearing. The President's counsel could also have questioned any of the four legal scholars who appeared during the Committee's December 4 hearing. The President could have submitted a statement in writing explaining his account of events—or he could have had his counsel make a presentation of evidence or request that other witnesses be called. President Trump did none of those things.

These privileges were equivalent to or exceeded those afforded to Presidents Nixon and Clinton. As noted previously, the Judiciary Committee conducted numerous closed-door briefings and took substantial investigative steps before affording any opportunities for President Nixon's counsel to participate, including conducting private interviews of witnesses. In addition, when President Nixon's counsel was later granted permission to attend closed-door presentations of evidence by Committee counsel, he could do so only as a passive observer. President Trump, by contrast, could have had his attorney cross-examine HPSCI's counsel during his presentation of evidence. That opportunity was also equivalent to the opportunity afforded to President Clinton to have his counsel cross-examine Independent Counsel Starr—which he did, at length.[112]

Furthermore, although President Trump has complained that his counsel was not afforded the opportunity to participate during HPSCI's proceedings, the proceedings against Presidents Nixon and Clinton demonstrate that in neither case was the President permitted to have counsel participate in the initial fact-gathering stages of the impeachment inquiry. As Committee staff explained during the Nixon impeachment inquiry—and then reiterated during the Clinton impeachment inquiry—there were no records from any prior impeachment inquiry of an "official under investigation participat[ing] in the investigation stage preceding commencement of committee hearings" or being offered access to Committee evidence "before it was offered at a hearing."[113] That is doubly true for the investigative proceedings that took place before the House began its impeachment inquiries against Presidents Nixon and Clinton. President Nixon certainly had no attorney present when prosecutors and grand juries began collecting evidence about Watergate and related matters, nor did he have an attorney present when the Senate Select Committee began interviewing witnesses and holding public hearings. Nor did President Clinton have an attorney present when prosecutors from the Office of Independent Counsel Kenneth Starr deposed witnesses and elicited their testimony before a grand jury.

Indeed, the proceedings before the Investigating Committees can be most closely analogized to the Senate Select Committee proceedings during Watergate. In both instances, Congressional bodies other than the House Judiciary Committee engaged in fact-finding investigations of grave Presidential ​misconduct. Those investigations included private interviews and depositions followed by public hearings—after which all investigative files were provided to the House Judiciary Committee. The only difference is that in this case, transcripts of all interviews and depositions have been made public; all documentary evidence relied on by HPSCI in its report has been made available to the President; and the President's counsel could have participated and raised questions during presentations of evidence but chose not to.

3.⁠The President Was Not Entitled to Additional Procedural Rights

White House Counsel Pat A. Cipollone suggested in his October 8 letter on behalf of President Trump that the President was entitled to a host of additional due process rights during the House's impeachment inquiry, including "the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections . . ., and to respond to evidence and testimony."[114] He also indicated that the President was entitled to review all favorable evidence and all evidence bearing on the credibility of witnesses.[115] These are the types of procedural protections, however, typically afforded in criminal trials— not during preliminary investigative stages. [116] As HPSCI explained in its report, "there is no requirement that the House provide these procedures during an impeachment inquiry."[117] Rather, as Chairman Rodino stated during the Nixon impeachment inquiry, the President's participation "is not a right but a privilege or a courtesy."[118]

In any event, the core privileges described in Mr. Cipollone's letter were in fact offered to President Trump as courtesies during the Judiciary Committee's proceedings. The President was able to review "all evidence" relied on by the Investigating Committees, including evidence that the Minority's public report identified as favorable to him. During the Judiciary Committee's proceedings, the President had opportunities to present evidence, call witnesses, have counsel present to raise objections and cross-examine witnesses, and respond to the evidence raised against him. As the Rules Committee report accompanying H. Res. 660 noted, these privileges are "commensurate with the inquiry process followed in the cases of President Nixon and President Clinton." [119] at 7.President Trump simply chose not to avail himself of the procedural opportunities afforded to him.

D.⁠The Minority Was Afforded Full and Adequate Procedural Rights

Members of the Minority have also contended that they were not afforded the full procedural ​rights provided to the Minority in prior impeachment inquiries and have raised a host of related objections to the proceedings. These claims lack merit.

First, the Minority has contended that it was deprived of the ability to subpoena witnesses and documentary evidence. However, the rules governing both the Nixon and Clinton impeachment inquiries rendered the Minority's subpoena authority equally contingent on the Majority. Under H. Res. 803 (governing the Nixon proceedings) and H. Res. 581 (governing the Clinton proceedings), the Chairman could refer a subpoena request by the Ranking Member for a vote by the full Committee if the Chairman disagreed with such a request.[120] So too here, H. Res. 660 authorized the Ranking Member to issue subpoenas with the Chairman's concurrence, or to refer such requests for a vote by the full Committee if the Chairman declined to concur.[121]

Second, the Minority has contended that the Committee should have heard testimony from additional witnesses they requested, including the whistleblower, various individuals with whom the whistleblower spoke, and even Chairman Schiff.[122] As an initial matter, during HPSCI's proceedings, the Minority called three witnesses of its choosing—Ambassador Volker, Undersecretary Hale, and Mr. Morrison. Ambassador Volker and Mr. Morrison testified on their own panel at length; and their testimony only served to corroborate other witnesses' accounts of the President's misconduct.[123] As to proceedings before the Judiciary Committee, the Minority called a witness of its choosing to present views during the Committee's December 4 hearing on Constitutional Grounds for Presidential Impeachment. Furthermore, Minority counsel had equal time to present arguments and evidence during the Committee's December 9 hearing. However, as Chairman Schiff stated and as Chairman Nadler reiterated, Congress has an imperative interest in protecting whistleblowers. And in this particular instance, Congress has an especially critical need to prevent the House's impeachment inquiry from being used to "facilitate the President's effort to threaten, intimidate, and retaliate against the whistleblower," which placed his or her personal safety at grave risk.[124] Furthermore, the whistleblower's allegations were not relied upon by HPSCI or the Judiciary Committee in reaching their conclusions, making his or her testimony "redundant and unnecessary." [125] Rather, HPSCI adduced ​independent and more direct evidence.[126]

In addition, the Ranking Member and all other Committee Members had the full opportunity to question HPSCI's lead investigative counsel during the Committee's December 9 hearing. Presentation of evidence by Committee counsel is consistent with the procedures followed during the Nixon impeachment inquiry—and in no impeachment inquiry has the House relied upon evidentiary presentations from another Member. Finally, the Ranking Member's request to hear testimony from other witnesses such as Hunter Biden was well outside the scope of the impeachment inquiry and would have allowed the President and his allies in Congress to propagate exactly the same kinds of misinformation that President Trump corruptly pressured Ukraine to propagate for his own political benefit. Such witnesses were entirely irrelevant to the question of whether President Trump abused his power for his personal gain.

Third, the Minority requested that it be entitled to a day of hearings pursuant to House Rule XI.2(j)(1), which entitles the Minority, upon request, to call witnesses to testify regarding any "measure or matter" considered in a committee hearing "during at least one day of hearing thereon." The Minority requested a hearing day on the subject of constitutional grounds for impeachment, as discussed at the Committee's December 4 hearing. However, as Chairman Nadler explained in ruling against the Ranking Member's point of order, this Rule does not require the Chairman "to schedule a hearing on a particular day," nor is the Chairman required "to schedule the hearing as a condition precedent to taking any specific legislative action." [127] Indeed, a report accompanying this provision when it was first promulgated stated that its purpose was not "an authorization for delaying tactics."[128] Chairman Nadler further explained that the Minority had been afforded the opportunity to have its views represented through its witness during the December 4 hearing, who testified at length. Additionally, the Chairman said he was willing to work with the Minority to schedule a Minority day for a hearing at an appropriate time.[129]

Fourth, the Minority has contended that the proceedings before the Judiciary Committee were inadequate because the Committee did not hear from "fact witnesses." The evidence in the House's impeachment inquiry consists of more than one hundred hours of deposition or interview testimony by seventeen witnesses, followed by five days of live televised hearings with twelve fact witnesses.[130] At bottom, the Minority's objection instead amounts to a claim that fact hearings do not count unless they occur before this Committee. That notion is inconsistent with both the Nixon and Clinton impeachment inquiries, in which the Judiciary Committee relied on, inter alia, public and private testimony before the Senate Select Committee in the case of President Nixon, and transcripts of grand jury proceedings in the case of President Clinton. In this instance, HPSCI and the Committees on Oversight and Reform ​and Foreign Affairs conducted their witness examinations ably and transparently, working within their subject matter areas of expertise. Furthermore, to the extent Judiciary Committee members wished to probe the evidentiary record, they had opportunities to do so when HPSCI's Majority and Minority counsels presented evidence before the Committee.

Finally, the Minority has repeatedly suggested that the House's impeachment inquiry has been rushed. The House's investigation of the President's conduct regarding Ukraine began in early September and has proceeded for more than three months. In addition, that investigation followed extensive investigations into the President's having welcomed foreign assistance from Russia during the 2016 United States Presidential election and then obstructing the law enforcement investigation that ensued. President Trump's efforts to enlist the assistance of another foreign government for the 2020 United States Presidential election therefore raised immediate alarm and required prompt action. As HPSCI's report states, "[w]ith this backdrop, the solicitation of new foreign intervention was the act of a president unbound."[131]

The House's investigation of President Trump's misconduct—which occupied a time frame commensurate with that for the impeachment inquiry against President Clinton—was fair and thorough. The Investigating Committees assembled a comprehensive record that was more than sufficient to provide them with a thorough picture of the facts. To the extent gaps remained, they resulted from President Trump's obstruction of Congress. The urgency posed by the President's abuse of his office, his invitation of foreign interference in the 2020 United States Presidential election, and his disregard for any mechanisms of accountability required concerted action by the House, not further delay.

V.⁠Conclusion

The House conducted a thorough and fair inquiry regarding President Trump's misconduct, notwithstanding the unique and extraordinary challenges posed by the President's obstruction. The Investigating Committees amassed thorough and irrefutable evidence that the President abused his office by pressuring a foreign government to interfere in the next election. When committees of the House—rather than a grand jury, a Senate committee, or an Independent Counsel—must serve as primary investigators in an impeachment inquiry, they have an obligation to balance investigative needs and best practices for collecting evidence with the President's interest in telling his story and the public interest in transparency. But that does not entitle the President to inject himself at each and every stage of the proceedings, thus confounding the House's inquiry.

Here, consistent with historical practice, the House divided its impeachment inquiry into two phases, first collecting evidence and then bringing that evidence before the Judiciary Committee for its consideration of articles of impeachment. The Judiciary Committee then evaluated the evidence in a process that afforded President Trump the same or more privileges of his predecessors who have faced impeachment inquiries. The President's refusal to comply with or participate in these proceedings only confirmed his intent to obstruct Congress in the performance of its essential constitutional functions.

  1. ↑ U.S. Const. art. I, § 2, cl. 5; § 5, cl. 2.
  2. ↑ Directing Certain Committees to Continue Their Ongoing Investigations as Part of the Existing House of Representatives Inquiry Into Whether Sufficient Grounds Exist for the House of Representatives to Exercise its Constitutional Power to Impeach Donald John Trump, President of the United States of America, and for Other Purposes, H. Rep. No. 116-266 at 4 (2019) (hereinafter "Rules Committee Report"); see also Staff of H. Comm. on the Judiciary, 116th Cong., Constitutional Grounds for Presidential Impeachment 39 (Comm. Print 2019) (hereinafter "Constitutional Grounds for Impeachment (2019)").
  3. ↑ 3 See, e.g., Resolution Recommending that the House of Representatives Find William P. Barr, Attorney General, U.S. Department of Justice, in Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued by the Committee on the Judiciary, H. Rep. No. 116-105, at 13 (June 6, 2019).
  4. ↑ See Responses by Ann Donaldson to Questions from the Committee on the Judiciary of the U.S. House of Representatives (July 5, 2019).
  5. ↑ See Interview of Hope Hicks Before the H. Comm. on the Judiciary, 116th Cong. (June 19, 2019).
  6. ↑ See App. of the Comm. on the Judiciary at 14 n.8, In re App. of the Comm. on the Judiciary, U.S. House of Reps., for an Order Authorizing the Release of Certain Grand Jury Materials,—F. Supp. 3d —, 2019 WL 5485221 (D.D.C. Oct. 25, 2019) (hereinafter "In re Rule 6(e) Application"), appeal pending, No. 19-5288 (D.C. Cir.). In addition, in August 2019, Chairman Nadler requested that the chairs of five other committees investigating potential misconduct by President Trump share any materials with the Judiciary Committee that would be relevant to its consideration of impeachment. Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, to Adam Schiff, Chairman, H. Perm. Select Comm. on Intelligence, Maxine Waters, Chairwoman, H. Comm. on Financial Services, Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, and Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs (Aug. 22, 2019).
  7. ↑ See Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push for Inquiries That Could Help Trump, N.Y. Times, May 9, 2019.
  8. ↑ See, e.g., Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on Intelligence, to Joseph Maguire, Acting Dir. of Nat'l Intelligence (Sept. 10, 2019).
  9. ↑ Press Release, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019).
  10. ↑ See 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 208, 116th Cong. (2019) (hereinafter "Ukraine Report").
  11. ↑ Id. (quoting Letter from Chairman Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, Adam B. Schiff, Chairman, H. Perm. Select Comm. on Intelligence, and Eliot L. Engel, H. Comm. on Foreign Affairs, to Mick Mulvaney, Acting Chief of Staff, The White House (Oct. 4, 2019)).
  12. ↑ Letter from Pat A. Cipollone, Counsel to the President, to Nancy Pelosi, Speaker of the House, Adam B. Schiff, Chairman, H. Perm. Select Comm. on Intelligence, Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs, and Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform (Oct. 8, 2019) (hereinafter "Oct. 8 Cipollone Letter").
  13. ↑ Ukraine Report at 30-31. Ten witnesses defied subpoenas for testimony, but the Investigating Committees subsequently withdrew their subpoena to one of the officials. Id. at 236.
  14. ↑ Depositions of four of the witnesses postdated the House's approval of H. Res. 660 on October 31.
  15. ↑ Rules governing the use of deposition authorities were issued at the beginning of the current Congress, just as they have been during previous Congresses. See H. Res. 6 § 103(a), 116th Cong. (2019) (providing authority for chairs of standing committees and chair of HPSCI to order the taking of depositions); Regulations for Use of Deposition Authority, 165 Cong. Rec. H1216-17 (daily ed. Jan. 25, 2019) (setting forth regulations pursuant to this provision).
  16. ↑ Final Report of the H. Select Comm. on the Events Surrounding the 2012 Terrorist Attack in Benghazi, H. Rep. No. 114-848 at 404-05 (2016) (footnote omitted).
  17. ↑ H. Res. 660, 116th Cong. (2019).
  18. ↑ Rules Committee Report at 2.
  19. ↑ Id. at 7.
  20. ↑ Id.
  21. ↑ Ukraine Report at 212-13.
  22. ↑ H. Res. 660 § 2(2).
  23. ↑ Id. § 2(4). In addition, the House's standing rules entitle committees of the House to issue subpoenas and to delegate subpoena authority to Committee chairs. See House Rule XI.2(m).
  24. ↑ H. Res. 660 § 2(6).
  25. ↑ Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on Intelligence, to Devin Nunes, Ranking Member, H. Perm. Select Comm. on Intelligence (Nov. 9, 2019).
  26. ↑ Id.
  27. ↑ Ukraine Report at 9 (preface from Chairman Schiff).
  28. ↑ Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on Intelligence, Carolyn B. Maloney, Chairwoman, H. Comm. on Oversight and Reform, and Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019); see H. Res. 660 §§ 2(6), 3.
  29. ↑ Letter from John Yarmuth, Chairman, H. Comm. on the Budget, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019); Letter from Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019).
  30. ↑ See Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on Intelligence, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 11, 2019).
  31. ↑ Impeachment Inquiry Procedures in the Committee on the Judiciary, submitted for printing in the Congressional Record, 165 Cong. Rec. E1357 (daily ed. October 29, 2019) (hereinafter "Impeachment Inquiry Procedures").
  32. ↑ Accordingly, after receiving these materials from the Investigating Committees, the Judiciary Committee transmitted them to the President on December 8, 2019, with limited exceptions for materials containing sensitive information. The Committee has made the materials containing sensitive information available for the President's counsel's review in a secure facility. See Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, to Pat A. Cipollone, Counsel to the President (Dec. 8, 2019).
  33. ↑ Impeachment Inquiry Procedures at (A)(3), (B)(2)-(3), (C)(1)-(2), (4).
  34. ↑ H. Res. 660 § 4(c)(2).
  35. ↑ Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, to Donald J. Trump, President of the United States (Nov. 26, 2019).
  36. ↑ Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, to Donald J. Trump, President of the United States (Nov. 29, 2019).
  37. ↑ Letter from Pat A. Cipollone, Counsel to the President, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 1, 2019).
  38. ↑ Letter from Pat A. Cipollone, Counsel to the President, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019).
  39. ↑ Id.
  40. ↑ The Impeachment Inquiry Into President Donald J. Trump: Constitutional Grounds for Presidential Impeachment Before the H. Comm. on the Judiciary, 116th Cong. (Dec. 4, 2019) (hereafter "Constitutional Grounds Hearing (2019)"). This ratio of one Minority witness for every three Majority witnesses is consistent with other hearings conducted in the Judiciary Committee and in other committees.
  41. ↑ Cf. Background and History of Impeachment: Hearing Before the Subcomm. on the Constitution, H. Comm. on the Judiciary, 105th Cong. (1998).
  42. ↑ See id. at 53 (Minority Views).
  43. ↑ The Impeachment Inquiry Into President Donald J. Trump: Presentations from H. Perm. Select Comm. on Intelligence and H. Comm. on the Judiciary, 116th Cong. (Dec. 9, 2019) (hereinafter "Presentation of Evidence Hearing (2019)").
  44. ↑ H. Res. 755, 116th Cong. (2019).
  45. ↑ U.S. Const. art I, § 2, cl. 5.
  46. ↑ U.S. Const. art. I, § 5, cl. 2.
  47. ↑ Rules Committee Report at 7.
  48. ↑ House Rule XI.2(m); H. Res. 6 § 102(a).
  49. ↑ See House Rule X.1(i)(1), (10) (Committee on Foreign Affairs has jurisdiction regarding "[r]elations of the United States with foreign nations generally" and "[d]iplomatic service"); House Rule X.3(i), X.4(c)(2) (Committee on Oversight and Reform "shall review and study on a continuing basis the operation of Government activities at all levels, including the Executive Office of the President," and "may at any time conduct investigations of any matter" before other committees of the House); House Rule X.11(b)(1)(B) (HPSCI has jurisdiction regarding "[i]ntelligence and intelligence-related activities" of all "departments and agencies of the government").
  50. ↑ Press Release, Three House Committees Launch Wide-Ranging Investigations into Trump-Giuliani Ukraine Scheme (Sept. 9, 2019).
  51. ↑ See Oct. 8 Cipollone Letter.
  52. ↑ In re Rule 6(e) Application, 2019 WL 5485221, at *26.
  53. ↑ Constitution, Jefferson's Manual, Rules of the House of Representatives of the United States, H. Doc. No. 115-177 § 603 (2019 ed.) (hereinafter "Jefferson's Manual").
  54. ↑ In re Rule 6(e) Application, 2019 WL 5485221 at *26 (providing four examples).
  55. ↑ Id. (citing 3 Deschler's Precedents of the United States House of Representatives ch. 14 § 5 (1994) (hereinafter "Deschler").
  56. ↑ In re Rule 6(e) Application, 2019 WL 5485221 at *26 (emphasis in original).
  57. ↑ Report of the Committee on the Judiciary, Impeachment of Walter L. Nixon, Jr., H. Rep. No. 101-36, at 13-16 (1989).
  58. ↑ See Nixon v. United States, 506 U.S. 224, 227-28 (1993).
  59. ↑ See In re Rule 6(e) Application, 2019 WL 5485221 at *26.
  60. ↑ See Examining the Allegations of Misconduct Against IRS Commissioner John Koskinen (Part I): Hearing Before the H. Comm. on the Judiciary, 114th Cong. 3 (2016) (statement by Rep. Darrell Issa describing the hearing as "an inquiry into the recommendation of impeachment" made by another committee).
  61. ↑ H. Res. 803 § 2(a)(1); see 3 Deschler ch. 14 § 6.2.
  62. ↑ See H. Res 6, 116th Cong. § 103(a), (2019); Jefferson's Manual § 805 (describing gradual expansion of these authorities).
  63. ↑ 3 Deschler ch. 14 § 15.1.
  64. ↑ See id. ch. 14 § 15.2 (Parliamentarian's Note); Report of the H. Comm. on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, H. Rep. No. 93-1305 at 6 (1974) (hereinafter "Committee Report on Nixon Articles of Impeachment (1974)").
  65. ↑ Committee Report on Nixon Articles of Impeachment (1974) at 6.
  66. ↑ Work of the Impeachment Inquiry Staff As of February 5, 1974: Report by the Staff of the H. Comm. on the Judiciary at 2-3, 93d Cong. (1974) (hereinafter "February 5, 1974 Progress Report").
  67. ↑ H. Res. 803 § 1, 93d Cong. (1974).
  68. ↑ Impeachment Inquiry: Hearings Before the H. Comm. on the Judiciary, 93d Cong. 497 (1974) (hereinafter "Nixon Impeachment Hearings").
  69. ↑ See Fed. R. Crim. P. 6(e).
  70. ↑ United States v. Procter & Gamble Co., 356 U.S. 677, 681 n.6 (1958).
  71. ↑ Rules Committee Report at 8.
  72. ↑ February 5, 1974 Progress Report at 2.
  73. ↑ H. Res. 803 § 1, 93d Cong. (1974).
  74. ↑ Id. § 2(b)(1).
  75. ↑ Procedures for Handling Impeachment Inquiry Material: H. Comm. on the Judiciary, 93d Cong. (Comm. Print 1974); see Committee Report on Nixon Articles of Impeachment (1974) at 8.
  76. ↑ Nixon Impeachment Hearings at 53-78 (Feb. 5, 1974 briefing by staff); id. at 79-100 (Feb. 14, 1974 briefing by staff); id. at 131-59 (Mar. 5, 1974 briefing by staff).
  77. ↑ See id. at 96, 105, 206.
  78. ↑ U.S. Const. art. I, § 3, cl. 6.
  79. ↑ See Final Report of the S. Select Comm. on Presidential Campaign Activities, S. Rep. No. 93-981, xxiii-xxiv (1974) (hereinafter "Senate Select Committee Report").
  80. ↑ Id. at xxx.
  81. ↑ Id. at xviii.
  82. ↑ Id. at xxix.
  83. ↑ Nixon Impeachment Hearings at 95; see also Senate Select Committee Report at xxx.
  84. ↑ Work of the Impeachment Inquiry Staff as of March 1, 1974 at 4, 93d Cong. (Comm. Print 1974).
  85. ↑ See Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974).
  86. ↑ Nixon Impeachment Hearings at 96.
  87. ↑ Impeachment Inquiry Staff, H. Comm. on the Judiciary, Memorandum: Presentation Procedures for the Impeachment Inquiry at 11, 93d Cong. (Apr. 3, 1974).
  88. ↑ Id. at 18.
  89. ↑ See Nixon Impeachment Hearings App. VI, "Impeachment Inquiry Procedures"; e.g., id. at 1189 (Chairman prohibited President Nixon's counsel from introducing a response to Committee's presentations at this stage).
  90. ↑ Committee Report on Nixon Articles of Impeachment (1974) at 9.
  91. ↑ See Nixon Impeachment Hearings at 1719-1866 (presentations by President Nixon's counsel); id. at 1867-79 (voting to conduct witness testimony in executive session).
  92. ↑ See generally Testimony of Witnesses: Hearings Before the H. Comm. on the Judiciary, 93d Cong. (1974).
  93. ↑ Committee Report on Nixon Articles of Impeachment (1974) at 9-10.
  94. ↑ Id. at 10.
  95. ↑ See Impeachment of William J. Clinton, President of the United States: Report of the H. Comm. on the Judiciary, H. Rep. No. 105-830, at 123 (hereinafter "Committee Report on Clinton Articles of Impeachment (1998)"). Independent Counsel Starr submitted this referral pursuant to 28 U.S.C. § 595(c), a provision of the now-expired Independent Counsel Act that required independent counsels to "advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for an impeachment." See id. at 123-24.
  96. ↑ Committee Report on Clinton Articles of Impeachment (1998) at 125; see H. Res. 525, 105th Cong. (1998).
  97. ↑ H. Res. 525 § 2, 105th Cong. (1998).
  98. ↑ Committee Report on Clinton Articles of Impeachment (1998) at 125-26.
  99. ↑ H. Res. 581, 105th Cong. (1974).
  100. ↑ Id. § 2(b).
  101. ↑ Letter from Charles F.C. Ruff, Counsel to the President, Gregory B. Craig, Special Counsel to the President, and David E. Kendall, Special Counsel to the President, to Henry Hyde, Chairman, H. Comm. on the Judiciary (Oct. 23, 1998); Letter from Charles F.C. Ruff, Counsel to the President, to Thomas E. Mooney, Chief of Staff – General Counsel, H. Comm. on the Judiciary, and David P. Schippers, Chief Investigative Counsel, H. Comm. on the Judiciary (Nov. 20, 1998).
  102. ↑ Letter from Thomas E. Mooney, Chief of Staff – General Counsel, H. Comm. on the Judiciary, and David P. Schippers, Chief Investigative Counsel, H. Comm. on the Judiciary, to Charles F.C. Ruff, Counsel to the President, Gregory B. Craig, Special Counsel to the President, and David E. Kendall, Special Counsel to the President, at 2-3 (Nov. 9, 1998) (hereinafter "Mooney Letter").
  103. ↑ See generally Impeachment Inquiry: William Jefferson Clinton, President of the United States: Hearing Before the H. Comm. on the Judiciary, 105th Cong. (Nov. 19, 1998) (hereinafter "Starr Hearing"). President Clinton's counsel was permitted to question Independent Counsel Starr following questioning by Committee counsel and Members. Id. at 17089.
  104. ↑ See Committee Report on Clinton Articles of Impeachment (1998) at 200 (Minority Views); see also Starr Hearing at 170.
  105. ↑ See Background and History of Impeachment: Hearing Before the H. Comm. on the Judiciary, Subcomm. on the Constitution, 105th Cong. (Nov. 9, 1998); The Consequences of Perjury and Related Crimes: Hearing Before the H. Comm. on the Judiciary, 105th Cong. (Dec. 1, 1998).
  106. ↑ Impeachment Inquiry: William Jefferson Clinton, President of the United States: Presentation on Behalf of the President: Hearing Before the H. Comm. on the Judiciary, 105th Cong. (1998). President Clinton's counsel also called White House Counsel Charles F.C. Ruff to testify. Id. at 405-58.
  107. ↑ Committee Report on Clinton Articles of Impeachment (1998) at 128.
  108. ↑ 144 Cong. Rec. 28, 110-12 (1998).
  109. ↑ Letter from John Conyers, Jr., Ranking Member, H. Comm. on the Judiciary, to Henry J. Hyde, Chairman, H. Comm. on the Judiciary (Dec. 22, 1998).
  110. ↑ The Impeachment Inquiry into President Donald J. Trump: Presentations from the House Permanent Select Committee on Intelligence and House Judiciary Committee: Hearing Before the H. Comm. on the Judiciary, 116th Cong. (2019) (testimony by Daniel Goldman).
  111. ↑ Id.
  112. ↑ Starr Hearing at 170-89.
  113. ↑ Mooney Letter at 3 (quoting Memorandum from Impeachment Inquiry Staff at 11, H. Comm. on the Judiciary (Apr. 3, 1974)); Memorandum from Impeachment Inquiry Staff, H. Comm. on the Judiciary at 18 (Apr. 3, 1974).
  114. ↑ Oct. 8 Cipollone Letter.
  115. ↑ Id.
  116. ↑ Cf., e.g., United States v. Calandra, 414 U.S. 338, 350 (1974) (rejecting procedural protections that would "saddle a grand jury with minitrials and . . . assuredly impede its investigation").
  117. ↑ Ukraine Report at 212.
  118. ↑ Nixon Impeachment Hearings at 497.
  119. ↑ Rules Committee Report
  120. ↑ H. Res. 803 § 2(b), 93d Cong. (1974); H. Res. 581 § 2(b), 105th Cong. (1998).
  121. ↑ H. Res. 660 § 4(c). The only distinction is that H. Res. 660 did not reciprocally allow the Ranking Member to refer subpoena requests by the Chairman for a full Committee vote. But that is because contemporary House Rules already permit the Judiciary Committee and other committees to delegate their subpoena authority to their chairs. House Rule XI.2(m)(3)(A)(i). It makes little sense to suggest that the subpoena authority of the Chairman of the Judiciary Committee should be reduced during an impeachment inquiry.
  122. ↑ See Letter from Doug Collins, Ranking Member, H. Comm. on the Judiciary, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019).
  123. ↑ Impeachment Inquiry: Ambassador Kurt Volker and Timothy Morrison: Hearing Before the H. Perm. Select Comm. on Intelligence, 116th Cong. (2019); see, e.g., Ukraine Report at 123 (Ambassador Volker testified that Department of Justice did not make an official request for Ukraine's assistance in law enforcement investigations).
  124. ↑ Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, to Doug Collins, Ranking Member, H. Comm. on the Judiciary (Dec. 9, 2019).
  125. ↑ Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on Intelligence, to Devin Nunes, Ranking Member, H. Perm. Select Comm. on Intelligence (Nov. 9, 2019).
  126. ↑ Id.
  127. ↑ H. Res. 755, Articles of Impeachment Against President Donald J. Trump: Markup Before H. Comm. on the Judiciary, 116th Cong. (Dec. 11, 2019) (ruling on point of order by Chairman Nadler) (hereinafter "H. Res. 755 Markup").
  128. ↑ Legislative Reorganization Act of 1970, H. Rep. No. 91-1215, at 6 (1970).
  129. ↑ H. Res. 755 Markup (ruling on point of order by Chairman Nadler).
  130. ↑ Ukraine Report at 7.
  131. ↑ Id. at 10.
Retrieved from "https://en.wikisource.org/w/index.php?title=Report_of_the_Committee_on_the_Judiciary,_House_of_Representatives:_Impeachment_of_Donald_J._Trump,_President_of_the_United_States/The_Impeachment_Inquiry&oldid=10678965"