2. The President 's Categorical Refusal to Comply
President Trump categorically directed the White House, federal departments and agencies, and federal officials not to cooperate with the House 's inquiry and not to comply with duly subpoenas for documents or testimony.
Donald Trump is the first and only President in American history to openly and indiscriminately defy all aspects of the Constitutional impeachment process, ordering all federal agencies and officials categorically not to comply with voluntary requests or compulsory demands for documents or testimony.
On September 26, President Trump argued that Congress should not be" allowed'' to impeach him under the Constitution and that there" should be a way of stopping it-- maybe legally, through the courts.'' A common theme of his defiance has been his claims that Congress is acting in an unprecedented way and using unprecedented rules. However, the House has been following the same investigative rules that Republicans championed when they were in control.
On October 8, White House Counsel Pat Cipollone-- acting on behalf of President Trump-- sent a letter to House Speaker Nancy Pelosi and the three investigating Committees confirming that President Trump directed his entire Administration not to cooperate with the House 's impeachment inquiry.
Mr. Cipollone wrote:" President Trump can not permit his Administration to participate in this partisan inquiry under these circumstances.'' Mr. Cipollone 's letter elicited immediate criticism from legal experts across the political spectrum. He advanced remarkably politicized arguments and legal theories unsupported by the Constitution, judicial precedent, and more than 200 years of history. If allowed to stand, the President 's defiance, as justified by Mr. Cipollone, would represent an existential threat to the nation 's Constitutional system of checks and balances, separation of powers, and rule of law.
The House 's Impeachment Inquiry of President Trump
In January, the House of Representatives voted to adopt its rules for the 116th Congress. These rules House Committees to conduct investigations, hold hearings, issue subpoenas for documents and testimony, and depose witnesses. Significantly, these are similar to those adopted when Republicans controlled the House during previous Congresses.
In April, Special Counsel Robert S. Mueller III, who was appointed by then-Deputy Attorney General Rod J. Rosenstein to investigate Russian interference in the 2016 U.S. Presidential election and potential obstruction of justice by President Trump, issued a two volume report. In connection with that report, the Committee on the Judiciary began an inquiry into" whether to approve articles of impeachment with respect to the President.'' The Judiciary Committee detailed its and intent to conduct this investigation in a series of reports, memoranda, and legal filings.
On August 22, Rep. Jerrold Nadler, the Chairman of the Judiciary Committee, sent a letter requesting that the Permanent Select Committee on Intelligence, the Committee on Oversight and Reform, the Committee on Foreign Affairs, and the Committee on Financial Services provide" information, including documents and testimony, depositions, and/or interview transcripts'' relevant to the" ongoing impeachment investigation relating to President Trump.''
In September, the Intelligence Committee, the Oversight Committee, and the Foreign Affairs Committee sent letters requesting documents and interviews from the White House and the Department of State regarding the actions of President Trump, the President 's personal agent, Rudy Giuliani, and others to pressure Ukraine to launch investigations into former Vice President Joe Biden and a debunked conspiracy theory alleging Ukrainian interference in the 2016 election.
On September 22, President Trump admitted to discussing former Vice President Biden and his son with the President of Ukraine during a telephone call on July 25.
On September 24, Speaker Nancy Pelosi stated publicly that the House Committees were" moving forward'' to" proceed with their investigations under that umbrella of impeachment inquiry.'' She explained that, for the past several months, the House had been" investigating in our Committees and litigating in the courts, so the House can gather` all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity-- approval of articles of impeachment. '''
On September 25, the White House made public a Memorandum of Telephone Conversation of President Trump 's call with President Zelensky on July 25. As discussed in detail in Section I, this call record documented how President Trump directly and explicitly asked President Zelensky to launch investigations of former Vice President Biden and the 2016 election.
Following the Speaker 's announcement and the release of the call record, the Intelligence Committee, the Oversight Committee, and the Foreign Affairs Committee continued their investigation, requesting documents and information, issuing subpoenas, and conducting interviews and depositions. The Committees made clear that this information would be" collected as part of the House 's impeachment inquiry and among the Committees, as well as with the Committee on the Judiciary as appropriate.''
On October 31, the House voted to approve House Resolution 660, directing the Committees" to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States of America.'' The resolution set forth the process for holding public hearings, releasing deposition transcripts, presenting a report to the Judiciary Committee, holding proceedings within the Judiciary Committee, and submitting to the House of Representatives" such resolutions, articles of impeachment, or other recommendations as it deems proper.''
President Trump 's Unprecedented Order Not to Comply
President Trump 's categorical and indiscriminate order and efforts to block witness testimony and conceal documentary evidence from the Committees investigating his conduct as part of the House 's impeachment inquiry stand in contrast to his predecessors and challenge the basic tenets of the Constitutional system of checks and balances.
Even before the House of Representatives launched its investigation regarding Ukraine, President Trump made numerous statements rejecting the fundamental of Congress to investigate his actions as well as those of his Administration. For example, on April 24, he stated, in response to Congressional investigations:" We 're fighting all the subpoenas.'' 46 Similarly, during a speech on July 23, he stated:" I have an Article II, where I have to the right to do whatever I want as president.''
When the three investigating Committees began reviewing the President 's actions as part of the House 's impeachment inquiry, President Trump repeatedly challenged the investigation 's legitimacy in word and deed. President Trump 's rhetorical attacks appeared intended not just to dispute public reports of his misconduct, but to persuade the public that the House lacks to investigate the President and the inquiry is therefore invalid and fraudulent. For example, the President described the impeachment inquiry as:
•" a COUP''
•" illegal, invalid, and unconstitutional''
•" an unconstitutional power grab''
•" Ukraine Witch Hunt''
•" a continuation of the Greatest and most Destructive Witch Hunt of all time''
•" a total Witch Hunt Scam by the Democrats''
•" bad for the country''
•" all a hoax''
•" the single greatest witch hunt in American history''
•" Democrat Scam''
•" just another Democrat Hoax''
•" a fraud against the American people''
•" A Witch Hunt Scam''
•" a con being perpetrated on the United States public and even the world''
•" a continuation of the greatest Scam and Witch Hunt in the history of our Country''
•" Ukraine Hoax''
•" No Due Process Scam''
•" the phony Impeachment Scam''
•" the phony Impeachment Hoax''
On September 26, President Trump argued that Congress should not be" allowed'' to impeach him under the Constitution:" What these guys are doing-- Democrats-- are doing to this country is a disgrace and it should n't be allowed. There should be a way of stopping it-- maybe legally, through the courts.''
A common theme of President Trump 's defiance has been his claims that Congress is acting in an unprecedented way and using unprecedented rules. However, the House has been following the same investigative rules that Republicans championed when they were in control and conducted aggressive oversight of previous Administrations.
White House Counsel 's Letters Implementing the President 's Order
On October 8, White House Counsel Pat Cipollone sent a letter to Speaker Pelosi and the three Committees explaining that President Trump had directed his entire Administration not to cooperate with the House 's impeachment inquiry. He wrote:
Consistent with the duties of the President of the United States, and in particular his obligation to preserve the rights of future occupants of his office, President Trump can not permit his Administration to participate in this partisan inquiry under these circumstances.
On October 10, President Trump confirmed that Mr. Cipollone was indeed conveying his orders, stating:
As our brilliant White House Counsel wrote to the Democrats yesterday, he said their highly partisan and unconstitutional effort threatens grave and lasting damage to our democratic institutions, to our system of free elections, and to the American people. That 's what it is. To the American people. It 's so terrible. Democrats are on a crusade to destroy our democracy. That 's what 's happening. We will never let it happen. We will defeat them.
Mr. Cipollone 's letter elicited immediate criticism from legal experts from across the political spectrum.
Mr. Cipollone wrote a second letter to the Committees on October 18, declaring that the White House would refuse to comply with the subpoena issued to it for documents.
On November 1-- after the House had already issued several subpoenas to the White House and other Executive Branch officials for testimony-- the Trump Administration issued a new" Letter Opinion'' from Assistant Attorney General Steven A. Engel to Mr. Cipollone. The Office of Legal Counsel opinion sought to extend the reach of the President 's earlier direction to defy Congressional subpoenas and to justify noncompliance by officials who could not plausibly be considered among the President 's closest advisors.
Mr. Engel 's opinion asserted that the House 's impeachment inquiry seeks information that is" potentially protected by executive privilege'' and claimed the Committees ' deposition subpoenas are" invalid'' and" not subject to civil or criminal enforcement'' because the House 's long-standing deposition rules do not allow the participation of attorneys from the White House or other government agencies. These claims are without basis and unsupported by precedent.
The Letter Opinion cited statements from previous Presidents and Attorneys General that directly undercut the Administration 's position. For example, President James K. Polk, stated that in an impeachment inquiry the House had power to" penetrate into the most secret recesses of the Executive Departments.'' In addition, Attorney General Robert H. Jackson, who later served on the Supreme Court, stated that" pertinent information would be supplied in impeachment proceedings, usually instituted at the suggestion of the Department and for the good of the administration of justice.''
In his letters conveying the President 's direction, Mr. Cipollone advanced remarkably politicized arguments and legal theories unsupported by the Constitution, judicial precedent, and more than 200 years of history. These letters effectuated the President 's order and campaign to obstruct and thwart the House 's exercise of its sole power of impeachment under the Constitution. They are rebutted as follows:
• The Impeachment Inquiry is Constitutional: According to Mr. Cipollone," the President did nothing wrong,'' and" there is no basis for an impeachment inquiry.'' President Trump has repeatedly described his call with President Zelensky as" perfect.'' Speaking for President Trump, Mr. Cipollone also asserted that the impeachment inquiry is" partisan and unconstitutional,''" a naked political strategy that began the day he was inaugurated, and perhaps even before,'' and that it" plainly seeks to reverse the election of 2016 and to influence the election of 2020.'' However, as this report details in Section I, Congress found abundant evidence of a scheme directed by the President to solicit foreign election interference by pressing the newly-elected President of Ukraine to announce publicly politically-motivated investigations to benefit President Trump 's own reelection campaign. Fundamentally, the Constitutional validity of an impeachment inquiry can not depend on a President 's view that he did nothing wrong or on the political composition of the House. Such an extreme reimagining of the Constitution would render the Article I impeachment power meaningless and provide the President with power the Constitution does not grant him to thwart, manipulate, and stonewall an impeachment inquiry conducted by the House, including by concealing information of his own misconduct. Taken to its logical conclusion, the President 's position would eliminate the impeachment power in every year during which a political party other than the President 's is in power. Under this approach, the impeachments of President Clinton, President Nixon, and President Andrew Johnson would not have been permitted. The purpose of an impeachment inquiry is for the House to collect evidence to determine for itself whether the President may have committed an impeachable offense warranting articles of impeachment. Because the Constitution vests the House alone with" the sole Power of Impeachment,'' it is not for the President to decide whether the House is exercising that power properly or prudently. The President is not free to arrogate the House 's power to himself-- or to order across-the-board defiance of House subpoenas-- based solely on his unilateral characterization of legislative motives or because he opposes the House 's decision to investigate his actions.
• The Impeachment Inquiry is Properly : According to Mr. Cipollone, the" House has not expressly adopted any resolution an impeachment investigation'' nor has it" delegated such to any of your Committees by rule.'' However, nothing in either the Constitution or the House Rules requires the full House to vote to an impeachment inquiry. The impeachment inquiries into Presidents Andrew Johnson, Nixon, and Clinton all began prior to the House 's consideration and approval of a resolution the investigations. The same is true of many judicial impeachments; indeed, numerous judges have been impeached without any prior vote of the full House a formal inquiry. Even though Mr. Cipollone 's argument is inherently invalid, the House has taken two floor votes that render it obsolete-- the first on January 9 to adopt rules committees to conduct investigations, and the second on October 31 to set forth procedures for open hearings in the Intelligence Committee and for additional proceedings in the Judiciary Committee. Even following passage of House Resolution 660, whereby the House confirmed the preexisting and ongoing impeachment inquiry, the President and the White House Counsel, acting on the President 's behalf, have persisted in their obstructive conduct.
• President Has No Valid Due Process Claims: According to Mr. Cipollone," the Committees have not established any procedures affording the President even the most basic protections demanded by due process under the Constitution and by fundamental fairness,'' and the Committees" have denied the President the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence,'' and" to have counsel present.'' Yet, there is no requirement that the House provide these procedures during an impeachment inquiry. The Constitution vests the House with" the sole Power of Impeachment,'' and provides no constraints on how the House chooses to conduct its impeachment process. Nevertheless, Mr. Cipollone 's complaints are unfounded as the House has implemented procedural protections for the President in its exercise of its Constitutional power. House Resolution 660 procedures to" allow for the participation of the President and his counsel.'' The Committee Report accompanying House Resolution 660 explains that these protections for the President are part of the Judiciary Committee hearing process and are" based on those provided during the Nixon and Clinton inquiries.'' These procedures include" that the president and his counsel are invited to attend all hearings; the ability for the president 's counsel to cross-examine witnesses and object to the admissibility of testimony; and the ability of the president 's counsel to make presentations of evidence before the Judiciary Committee, including the ability to call witnesses.''
• Fact-Finding Was Appropriately Transparent: According to Mr. Cipollone, the Committees conducted their proceedings" in secret.'' This argument fundamentally misconstrues and misapprehends the fact-gathering process required at this initial stage of the House 's impeachment inquiry. Unlike in the cases of Presidents Nixon and Clinton, the House conducted a significant portion of the factual investigation itself because no independent prosecutor was appointed to investigate President Trump 's conduct regarding Ukraine. Attorney General William P. Barr refused to a criminal investigation into the serious allegations of misconduct, and even this decision was limited to possible violations of federal campaign finance laws. The investigative Committees proceeded consistent with the House 's rules of procedure and in keeping with investigative best practices, including the need to reduce the risk that witnesses may try to coordinate or align testimony. As the House explained in its report accompanying House Resolution 660:
The initial stages of an impeachment inquiry in the House are akin to those preceding a prosecutorial charging decision. Under this process, the House is responsible for collecting the evidence and, rather than weighing the question of returning an indictment, the Members of the House have the obligation to decide whether to approve articles of impeachment.
The Committees have released transcripts of all interviews and depositions conducted during the investigation. As these transcripts make clear, all Members of all three Committees-- including 47 Republican Members of Congress-- had the opportunity to ask questions, and these transcripts are now available to the President and his counsel. These same procedures were supported by Acting White House Chief of Staff Mick Mulvaney when he served as a Member of the Oversight Committee and by Secretary of State Mike Pompeo when he served as a Member of the Benghazi Select Committee. In fact, some of the same Members and staff currently conducting depositions as part of the present impeachment inquiry participated directly in depositions during the Clinton, Bush, and Obama Administrations. The Intelligence Committee also held public hearings with 12 of these witnesses.
• Agency Attorneys Can Be( And Should Be) Excluded from Depositions: According to Mr. Cipollone," it is unconstitutional to exclude agency counsel from participating in congressional depositions.'' Mr. Cipollone cites no case law to support his position-- because there is none. Instead, he relies on a single opinion from the Trump Administration 's Office of Legal Counsel and ignores the ample legal and historical precedent that clearly support the Committees ' actions. For example, the Constitution expressly delegates to Congress the to" determine the Rules of its Proceedings,'' which includes the power to determine the procedures used for gathering information from witnesses whether via interview, staff deposition, or in a public hearing. The basis for the rule excluding agency counsel is straightforward: it prevents agency officials who are directly implicated in the abuses Congress is investigating from trying to prevent their own employees from coming forward to tell the truth to Congress. The rule protects the rights of witnesses by allowing them to be accompanied in depositions by personal counsel. Agency attorneys have been excluded from Congressional depositions of Executive Branch officials for decades, under both Republicans and Democrats, including Chairmen Dan Burton, Henry Waxman, Darrell Issa, Jason Chaffetz, Trey Gowdy, Kevin Brady, and Jeb Hensarling, among others.
• Congress Can Exercise Its Broad Oversight Authority: According to Mr. Cipollone," you simply can not expect to rely on oversight to gather information for an unauthorized impeachment inquiry that conflicts with all historical precedent and rides roughshod over due process and the separation of powers.'' But, of course, the present impeachment inquiry does neither. Moreover, the Supreme Court has made clear that Congress '" power of inquiry'' is" as penetrating and farreaching as the potential power to enact and appropriate under the Constitution.'' The subject matter of the impeachment inquiry implicates the House 's impeachment-specific as well as legislative and oversight and interests. The activity under investigation, for instance, relates to a broad array of issues in which Congress has legislated and may legislate in the future, including government ethics and transparency, election integrity, appropriations, foreign affairs, abuse of power, bribery, extortion, and obstruction of justice. In fact, Members of Congress have already introduced legislation on issues related to the impeachment inquiry. The House does not forfeit its Constitutional to investigate and legislate when it initiates an impeachment inquiry. Congress passed sweeping legislative reforms following the scandal over the Watergate break-in and President Nixon 's resignation.
•" Confidentiality Interests'' Do Not Eliminate Congress ' Authority: According to Mr. Cipollone, the Administration would also not comply with the Committees ' demands for documents and testimony because of unspecified Executive Branch" confidentiality interests.'' There 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 are at their greatest, and the Executive 's interest in confidentiality must yield. Only the President can assert executive privilege, yet he has not done so in the House 's impeachment inquiry. Prior to asserting executive privilege, the Executive Branch is obligated to seek to accommodate the legitimate informational needs of Congress, which, as discussed below, it has not done. In any event, much of the information sought by the Committees would not be covered by executive privilege under any theory, and the privilege-- where validly asserted on a particularized basis and not outweighed by the legitimate needs of the impeachment inquiry-- would protect any legitimate Executive Branch interest in confidentiality.
• President 's Top Aides Are Not" Absolutely Immune'': According to Mr. Cipollone, the President 's top aides are" absolutely immune'' from being compelled to testify before Congress. This extreme position has been explicitly and repeatedly rejected by Congress-- which has received testimony from senior aides to many previous Presidents-- and by federal courts. In 2008, a federal court rejected an assertion by President George W. Bush that White House Counsel Harriet Miers was immune from being compelled to testify, noting that the President had failed to identify even a single judicial opinion to justify his claim. On November 25, 2019, another federal judge rejected President Trump 's claim of absolute immunity for former White House Counsel Don McGahn, concluding:" Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,'' and that" Executive branch officials are not absolutely immune from compulsory congressional process-- no matter how many times the Executive branch has asserted as much over the years-- even if the President expressly directs such officials ' non-compliance.'' Mr. Cipollone 's position, adopted by President Trump, has thus been repudiated by Congress and the courts, and is not salvaged by Executive Branch legal opinions insisting upon a wholly fictional ground for non-compliance. In ordering categorical defiance of House subpoenas, President Trump has confirmed the unlimited breadth of his position and his unprecedented view that no branch of government-- even the House-- is empowered to investigate whether he may have committed constitutional offenses.
In addition to advancing specious legal arguments, President Trump has made no effort to accommodate the House 's interests in conducting the impeachment inquiry. For example, the Committees first requested documents from the White House on September 9, but the White House disregarded the request. The Committees made a second request on September 24, but the White House again ignored the request. Finally, on October 4, the Committees transmitted a subpoena for the documents. However, on October 18, the White House Counsel sent a letter stating that" the White House can not comply with the October 4 subpoena.''
Since then, there has been no evidence of a willingness by the President to produce any of the documents covered by the subpoena to the White House. The State Department made passing references to potentially engaging in an" accommodations'' process in response to its September 27 subpoena. However, there has been no effort to do so, and departments and agencies have not produced any documents in response to subpoenas issued as part of the House impeachment inquiry. The President also made no apparent effort to accommodate the House 's need for witness testimony and instead continued to flatly refuse to allow Executive Branch officials to testify.