THE ARTICLES SHOULD BE REJECTED AND THE PRESIDENT SHOULD IMMEDIATELY BE ACQUITTED.
I. The Articles Fail to State Impeachable Offenses as a Matter Of Law.
A. House Democrats ' Novel Theory of" Abuse of Power'' Does Not State an Impeachable Offense and Would Do Lasting Damage to the Separation of Powers.
House Democrats ' novel conception of" abuse of power'' as a supposedly impeachable offense is constitutionally defective. It supplants the Framers ' standard of" high Crimes and Misdemeanors'' with a made-up theory that the President can be impeached and removed from office under an amorphous and undefined standard of" abuse of power.'' The Framers adopted a standard that requires a violation of established law to state an impeachable offense. By contrast, in their Articles of Impeachment, House Democrats have not even attempted to identify any law that was violated. Moreover, House Democrats ' theory in this case rests on the radical assertion that the President could be impeached and removed from office entirely for his subjective motives-- that is, for undertaking permissible actions for supposedly" forbidden reasons.'' That unprecedented test is so flexible it would vastly expand the impeachment power beyond constitutional limits and would permanently weaken the Presidency by effectively permitting impeachments based on policy disagreements.
House Democrats can not salvage their unprecedented" abuse of power'' standard with fuzzy claims that the Framers particularly intended impeachment to address" foreign entanglements'' and" corruption of elections.'' Those assertions are makeweights that distort history and add no legitimacy to the radical theory of impeachment based on subjective motive alone.
Under the Constitution, impeachable offenses must be defined under established law. And they must be based on objective wrongdoing, not supposed subjective motives dreamt up by a hostile faction in the House and superimposed onto a President 's entirely lawful conduct.
1. House Democrats ' Novel Theory of" Abuse of Power'' as an Impeachable Offense Subverts Constitutional Standards and Would Permanently Weaken the Presidency.
House Democrats ' theory that the President can be impeached and removed from office under a vaguely defined concept of" abuse of power'' would vastly expand the impeachment power beyond the limits set by the Constitution and should be rejected by the Senate.
( a) House Democrats ' Made-Up" Abuse of Power'' Standard Fails To State an Impeachable Offense Because It Does Not Rest on Violation of an Established Law.
House Democrats ' claim that the Senate can remove a President from office for running afoul of some ill-defined conception of" abuse of power'' finds no support in the text or history of the Impeachment Clause. As explained above, by limiting impeachment to cases of" Treason, Bribery, or other high Crimes and Misdemeanors,'' the Framers restricted impeachment to specific offenses against" already known and established law.'' That was a deliberate choice designed to constrain the power of impeachment. Restricting impeachment to offenses established by law provided a crucial protection for the independence of the Executive from what James Madison called the" impetuous vortex'' of legislative power. As many constitutional scholars have recognized," the Framers were far more concerned with protecting the presidency from the encroachments of Congress... than they were with the potential abuse of executive power.'' The impeachment power necessarily implicated that concern. If the power were too expansive, the Framers feared that the Legislative Branch may" hold[ impeachments] as a rod over the Executive and by that means effectually destroy his independence.'' One key voice at the Constitutional Convention, Gouverneur Morris, warned that, as they crafted a mechanism to make the President" amenable to Justice,'' the Framers" should take care to provide some mode that will not make him dependent on the Legislature.'' To limit the impeachment power, Morris argued that only" few''" offences... ought to be impeachable,'' and the" cases ought to be enumerated & defined.''
Indeed, the debates over the text of the Impeachment Clause particularly reveal the Framers ' concern that ill-defined standards could give free rein to Congress to utilize impeachment to undermine the Executive. As explained above, when" maladministration'' was proposed as a ground for impeachment, it was rejected based on Madison 's concern that"[ s] o vague a term will be equivalent to a tenure during[ the] pleasure of the Senate.'' Madison rightly feared that a nebulous standard could allow Congress to use impeachment against a President based merely on policy differences, making it function like a parliamentary no-confidence vote. That would cripple the independent Executive the Framers had crafted and recreate the Parliamentary system they had expressly rejected. Circumscribing the impeachment power to reach only existing, defined offenses guarded against such misuse of the .
As Luther Martin, who had been a delegate at the Constitutional Convention, summarized the point at the impeachment trial of Justice Samuel Chase in 1804,"[ a] dmit that the House of Representatives have a right to impeach for acts which are not contrary to law, and that thereon the Senate may convict and the officer be removed, you leave your judges and all your other officers at the mercy of the prevailing party.'' The Framers prevented that dangerous result by limiting impeachment to defined offenses under the law.
House Democrats can not reconcile their amorphous" abuse of power'' standard with the constitutional text simply by asserting that,"[ t] o the founding generation, abuse of power was a specific, well-defined offense.'' In fact, they conspicuously fail to provide any citation for that assertion. Nowhere have they identified any contemporaneous definition delimiting this purportedly" well-defined'' offense.
Nor can House Democrats shore up their theory by invoking English practice. According to House Democrats, 400 years of parliamentary history suggests that the particular offenses charged in English impeachments can be abstracted into several categories of offenses, including one involving abuse of power. From there, they jump to the conclusion that" abuse of power'' itself can be treated as an offense and that any fact pattern that could be described as showing abuse of power can be treated as an impeachable offense. But that entire methodology is antithetical to the approach the Framers took in defining the impeachment power. The Framers sought to confine impeachable offenses within known bounds to protect the Executive from arbitrary exercises of power by Congress. Indeed, the Framers expressly rejected vague standards such as" maladministration'' that had been used in England in order to constrain the impeachment power within defined limits. Deriving general categories from ancient English cases and using those categories as the labels for new, more nebulously defined purported" offenses'' is precisely counter to the Framers ' approach. As the Republican minority on the House Judiciary Committee in the Nixon impeachment inquiry explained,"[ t] he whole tenor of the Framers ' discussions, the whole purpose of their many careful departures from English impeachment practice, was in the direction of limits and of standards.''
House Democrats ' theory also has no grounding in the history of presidential impeachments. Until now, the House of Representatives has never impeached a President of the United States without alleging a violation of law-- indeed, a crime. The articles of impeachment against President Clinton specified charges of perjury and obstruction of justice, both felonies under federal law. In the Nixon impeachment inquiry, the articles approved by the House Judiciary Committee accused the President of obstructing justice, among multiple other violations of the law. And as explained above, the impeachment of President Johnson provides the clearest evidence that a presidential impeachment requires alleged violations of existing law. When the House Judiciary Committee recommended impeaching Johnson in 1867 based on allegations that included no violations of law, the House rejected the recommendation. A majority in the House was persuaded by the arguments of the minority on the Judiciary Committee, who argued that"[ t] he House of Representatives may impeach a civil officer, but it must be done according to law. It must be for some offence known to the law, and not created by the fancy of the members of the House.'' Congress did not impeach President Johnson until the following year, when he was impeached for violating the Tenure of Office Act. The history of presidential impeachments provides no support for House Democrats ' vague" abuse of power'' charge.
( b) House Democrats ' Unprecedented Theory of Impeachable Offenses Defined by Subjective Intent Alone Would Permanently Weaken the Presidency.
House Democrats ' conception of" abuse of power'' is especially dangerous because it rests on the even more radical claim that a President can be impeached and removed from office solely for doing something he is allowed to do, if he did it for the" wrong'' subjective reasons. Under this view, impeachment can turn entirely on" whether the President 's real reasons, the ones actually in his mind at the time, were legitimate.'' That standard is so malleable that it would permit a partisan House-- like this one-- to attack virtually any presidential decision by questioning a President 's motives. By eliminating any requirement for wrongful conduct, House Democrats have tried to make thinking the wrong thoughts an impeachable offense.
House Democrats ' theory of impeachment based on subjective motive alone is unworkable and constitutionally impermissible.
First, by making impeachment turn on nearly impossible inquiries into the subjective intent behind entirely lawful conduct, House Democrats ' standard would open virtually every presidential decision to partisan attack based on questioning a President 's motives. As courts have repeatedly observed,"[ i] nquiry into the motives of elected officials can be both difficult and undesirable, and such inquiry should be avoided when possible.'' Thus, for example, courts will not invalidate laws within Congress 's constitutional based on allegations about legislators ' motives. As constitutional historian Raoul Berger has observed, this principle" is equally applicable to executive action within statutory or constitutional limits.'' Even House Democrats ' own expert, Professor Michael Gerhardt, has previously explained( in defending the Obama Administration against charges of abuse of power) that" the President has the ability to... strongly push back against any inquiry into either the motivations or support for his actions.''
The Framers did not intend to expand the impeachment power infinitely by allowing Congress to attack objectively lawful presidential conduct based solely on unwieldy inquiries into subjective intent. Under the Framers ' plan, impeachment was intended to apply to objective wrongdoing as identified by offenses defined under existing law. As noted above, the Framers rejected maladministration as a ground for impeachment precisely because it was"[ s] o vague a term.'' Instead, they settled on" high Crimes and Misdemeanors,'' as a term with a" limited and technical meaning.''"[ H] igh Crimes and Misdemeanors,'' as well as" Treason'' and" Bribery,'' all denote objectively wrongful conduct as defined by existing law. Each of the seven other references in the Constitution to impeachment also supports the conclusion that impeachments must be evaluated in terms of offenses against settled law: The Constitution refers to" Conviction'' for impeachable offenses twice and" Judgment in Cases of Impeachment.'' It directs the Senate to" try all Impeachments'' and requires the Chief Justice 's participation when the President is" tried.'' And it implies impeachable offenses are" Crimes'' and" Offenses'' in the Jury Trial Clause and the Pardon Clause, respectively. These are all words that indicate violations of established law. The Framers ' words limited the impeachment power and, in particular, sought to ensure that impeachment could not be used to attack a President based on mere policy differences.
Given their apprehensions about misuse of the impeachment power, it is inconceivable that the Framers crafted a purely intent-based impeachment standard. Such a standard would be so vague and malleable that entirely permissible actions could lead to impeachment of a President( and potentially removal from office) based solely on a hostile Congress 's assessment of the President 's subjective motives. If that were the rule, any President 's political opponents could take virtually any of his actions, mischaracterize his motives after the fact, and misuse impeachment as a tool for political opposition instead of as a safeguard against egregious presidential misconduct. As Republicans on the House Judiciary Committee during the Nixon impeachment inquiry rightly explained,"[ a] n impeachment power exercised without extrinsic and objective standards would be tantamount to the use of bills of attainder and ex post facto laws, which are expressly forbidden by the Constitution and are contrary to the American spirit of justice.''
House Democrats justify their focus on subjective motives based largely on a cherrypicked snippet from a statement James Iredell made in the North Carolina ratification debates. Iredell observed that" the President would be liable to impeachment[ if]... he had acted from some corrupt motive or other.'' But nothing in that general statement suggests that Iredell-- let alone the Framers or the hundreds of delegates who ratified the Constitution in the states-- subscribed to House Democrats ' current theory treating impeachment as a roving license for Congress to attack a President 's lawful actions based on subjective motive alone. To the contrary, in the very same speech, Iredell himself warned against the dangers of allowing impeachment based on assessments of subjective motive. He explained that there would often be divisions between political parties and that, due to a lack of" charity,'' each might often" attribute every opposition'' to its own views" to an ill motive.'' In that environment, he warned,"[ a] mere difference of opinion might be interpreted, by the malignity of party, into a deliberate, wicked action.'' That, he argued, should not be a basis for impeachment.
House Democrats ' assertions that past presidential impeachments provide support for their made-up impeachment-based-on-subjective-motives-alone theory are also wrong. Contrary to their claims, neither the Nixon impeachment inquiry nor the impeachment of President Johnson supports their assertions.
In the Nixon impeachment inquiry, none of the articles recommended by the House Judiciary Committee was labeled" abuse of power'' or framed the charge in those terms. And it is simply wrong to say that the theory underlying the proposed articles was that President Nixon had taken permissible actions with the wrong subjective motives. Article I alleged President Nixon obstructed justice, a clear violation of law. And Article II asserted numerous breaches of the law. It claimed that President Nixon" violat[ ed] the constitutional rights of citizens,''" contraven[ ed] the laws governing agencies of the executive branch,'' and" and permitted to be maintained a secret investigative unit within the office of the President... which unlawfully utilized the resources of the Central Intelligence Agency,[ and] engaged in covert and unlawful activities.'' Those allegations did not turn on describing permissible conduct that had simply been done with the wrong subjective motives. Instead, they charged unlawful conduct.
House Democrats ' reliance on the Johnson impeachment fares no better. According to House Democrats, the Johnson impeachment supports their concocted impeachment-based- on subjective- motives theory under the following tortured logic: The articles of impeachment actually adopted by the House charged the violation of the Tenure of Office Act. But that was not the" real'' reason the House sought to remove President Johnson. The real reason was that he had undermined Reconstruction. And, in House Democrats ' view, his improper desire to thwart Reconstruction was actually a better reason to impeach him. For support, House Democrats cite a recent book by one of their own staffers( Joshua Matz) and Laurence Tribe. This is nonsense. Nothing in the Johnson impeachment involved charging the President with taking objectively permissible action for the wrong subjective reasons. Johnson was impeached for violating a law passed by Congress. Moreover, President Johnson was acquitted, despite whatever subjective motives he might have had. House Democrats can not conjure a precedent out of thin air by simply imagining that the Johnson impeachment articles said something other than what they said.
If the Johnson impeachment established any precedent relevant here, it is that the House refused to impeach the President until he clearly violated the letter of the law. As one historian has explained, despite widespread anger among Republicans about President Johnson 's actions undermining Reconstruction, until Johnson violated the Tenure of Office Act,"[ t] he House had refused to impeach[ him]... at least in part because many representatives did not believe he had committed a specific violation of law.''
Second, House Democrats ' theory raises particular dangers because it makes" personal political benefit'' one of the" forbidden reasons'' for taking government action. Under that standard, a President could potentially be impeached and removed from office for taking any action with his political interests in view. In a representative democracy, however, elected officials almost always consider the effect that their conduct might have on the next election. And there is nothing wrong with that.
By making" personal political gain'' an illicit motive for official action, House Democrats ' radical theory of impeachment would permit a partisan Congress to remove virtually any President by questioning the extent to which his or her action was motivated by electoral considerations rather than the" right'' policy motivation. None of this has any basis in the constitutional text, which specifies particular offenses as impeachable conduct. Just as importantly, under such a rule, impeachments would turn on unanswerable questions that ultimately reduce to policy disputes-- exactly what the Framers saw as an impermissible basis for impeachment. For example, if it is impeachable conduct to act with too much of a view toward electoral results, how much of a focus on electoral results is too much, even assuming that Congress could accurately disaggregate a President 's actual motives? And how does one measure presidential motives against some unknowable standard of the" right'' policy result uninfluenced by considerations of political gain? That question, of course, quickly boils down to nothing more than a dispute about the" right'' policy in the first place. None of this provides any permissible basis for impeaching a President.
Third, aptly demonstrating why all of this leads to unconstitutional results, House Democrats have invented standards for identifying supposedly illicit presidential motives that turn the Constitution upside down. According to House Democrats, they can show that President Trump acted with illicit motives because, in their view, the President supposedly" disregarded United States foreign policy towards Ukraine,'' ignored the" official policy'' that he had been briefed on, and" ignored, defied, and confounded every agency within the Executive Branch'' with his decisions on Ukraine. These assertions are preposterous and dangerous. They fundamentally misunderstand the assignment of power under the Constitution.
Article II of the Constitution states that" the executive Power shall be vested in a President''-- not Executive Branch staff. The vesting of the Executive Power in the President makes him" the sole organ of the nation in its external relations, and its sole representative with foreign nations.'' He sets foreign policy for the Nation, and in" this vast external realm,'' the" President alone has the power to speak... as a representative of the nation.'' The Constitution assigns him control over foreign policy precisely to ensure that the Nation speaks with one voice. His decisions are authoritative regardless of the judgments of the unelected bureaucrats participating in an inter-agency process that exists solely to facilitate his decisions, not to make decisions for him. Any theory of an impeachable offense that turns on ferreting out supposedly" constitutionally improper'' motives by measuring the President 's policy decisions against a purported" interagency consensus'' formed by unelected staff is a transparent and impermissible inversion of the constitutional structure.
It requires no leap of imagination to see the absurd consequences that would follow from House Democrats ' theory. Imagine a President who, in an election year, determined to withdraw troops from an overseas deployment to have them home by Christmas. Should hostile lawmakers be able to seek impeachment and claim proof of" illicit motive'' because an alleged" interagency consensus'' showed that the" real'' national security interests of the United States required keeping those troops in place? Manufacturing an impeachment out of such an assertion ought to be dismissed out of hand.
House Democrats ' abuse-of-power theory is also profoundly anti-democratic. In assigning the Executive Power to the President, the Constitution ensures that power is exercised by a person who is democratically responsible to the people through a quadrennial election. This ensures that the people themselves will regularly and frequently have a say in the direction of the Nation 's policy, including foreign policy. As a result, removing a President on the ground that his foreign policy decisions were allegedly based on" illicit motives''-- because they failed to conform to a purported" consensus'' of career bureaucrats-- would fundamentally subvert the democratic principles at the core of our Constitution.
This very impeachment shows how anti-democratic House Democrats ' theory really is. Millions of Americans voted for President Trump precisely because he promised to disrupt the foreign policy status quo. He promised a new," America First'' foreign policy that many in the Washington establishment derided. And the President has delivered, bringing fresh and successful approaches to foreign policy in a host of areas, including relations with NATO, China, Israel, and North Korea. In particular, with respect to Ukraine and elsewhere, his foreign policy has focused on ensuring that America does not shoulder a disproportionate burden for various international missions, that other countries do their fair , and that taxpayer dollars are not squandered. House Democrats ' theory that a purported inter-agency" consensus'' among career bureaucrats can be used to show improper motive is an affront to the tens of millions of American citizens who voted for President Trump 's foreign policy and not a continuation of the Washington establishment 's policy preferences.
2. House Democrats ' Assertions that the Framers Particularly Intended Impeachment to Guard Against" Foreign Entanglements'' and" Corruption'' of Elections Are Makeweights that Distort History.
House Democrats try to shore up their made-up theory of abuse of power by pretending that anything related to what they call" foreign entanglements'' or elections strikes at the core of impeachment. This novel accounting of the concerns animating the impeachment power conveniently allows House Democrats to claim that their allegations just happen to raise the perfect storm of impeachable conduct, as if their accusations show that" President Trump has realized the Framers ' worst nightmare.'' That is preposterous on its face. The Framers were concerned about the possibility of treason and the danger that foreign princes with vast treasuries at their disposal might actually buy off the Chief Executive of a fledgling, debt-ridden republic situated on the seaboard of a vast wilderness continent-- most of which was still claimed by European powers eager to advance their imperial interests. Their worst nightmare was not the President of the United States -as-superpower having an innocuous conversation with the leader of a comparatively small European republic and disclosing the conversation for all Americans to see.
To peddle their distortion of history, House Democrats cobble together snippets from the Framers ' discussions on various different subjects and try to portray them as if they define the contours of impeachable offenses. As explained above, the Framers intended a limited impeachment power. But when House Democrats find the Framers raising concerns about any risks to the new government, they leap to the conclusion that those concerns must identify impeachable offenses. Such transparently results-driven historical analysis is baseless and provides no support for House Democrats ' drive to remove the President. First, House Democrats mangle history in offering" foreign entanglements'' as a type of impeachable offense. Their approach confuses two different concepts-- entangling the country in alliances and fears of foreign governments buying influence-- to create a false impression that there is something insidious about anything involving a foreign connection that should make it a particularly ripe ground for impeachment.
When the Framers spoke about foreign" entanglements'' they had a particular danger in mind. That was the danger of the young country becoming ensnared in alliances that would draw it into conflicts between European powers. When President Washington asserted that" history and experience prove that foreign influence is one of the most baneful foes of republican government,'' he was not warning about Chief Executives meriting removal from office. He was advocating for neutrality in American foreign policy, and in particular, with respect to Europe. One of President Washington 's most controversial decisions was establishing American neutrality in the escalating war between Great Britain and revolutionary France. He then used his Farewell Address to argue against" entangl[ ing][ American] peace and prosperity in the toils of European ambition, rivalship, interest, humor[ and] caprice.'' Again, he was warning about the United States being drawn into foreign alliances that would trap the young country in disputes between European powers. House Democrats ' false allegations here have nothing to do with the danger of a foreign entanglement as the Founders understood that term, and the admonitions from the Founding era they cite are irrelevant.
The Framers were also concerned about the distinct problem of foreign attempts to interfere in the governance of the United States. But on that score, they identified particular concerns based on historical examples and addressed them specifically. They were concerned about officials being bought off by foreign powers. Gouverneur Morris articulated this concern:" Our Executive... may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard[ against] it by displacing him.'' He specifically mentioned the bribe King Louis XIV of France had paid to King Charles II of England to influence English policy. This is why" Bribery'' and" Treason'' were made impeachable offenses. The Framers also addressed the danger of foreign inducements directed at the President by barring his acceptance of" any present, Emolument, Office, or Title'' in the Foreign Emoluments Clause. House Democrats ' Articles of Impeachment make no allegations under any of these specific offenses identified in the Constitution.
In the end, House Democrats ' ahistorical arguments rest on a non sequitur. They essentially argue that because the Framers showed concern about the Nation being betrayed in these specific provisions, any accusations that relate to foreign influence must equally amount to impeachable conduct. That simply does not follow. To the contrary, since the Framers made specific provisions for the types of foreign interference they feared, there is no reason to think that the Impeachment Clause must be stretched and contorted to reach other conduct simply because it has to do with something foreign. The Framers ' approach to treason, in particular, suggests that House Democrats ' logic is wrong. The Framers defined treason in the Constitution to limit it.Nothing about their concern for limiting treason suggests that a general concern about foreign betrayal should be used as a ratchet to expand the scope of the Impeachment Clause and make it infinitely malleable so that all charges cast in the vague language of" foreign entanglements'' should automatically state impeachable conduct.
Second, House Democrats point to the Founders ' concerns that a President might bribe electors to stay in office. But that specific concern does not mean, as they claim, that anything to do with an election was a central concern of impeachment and that impeachment is the tool the Framers created to deal with it. The historical evidence shows the Framers had a specific concern with presidential candidates bribing members of the Electoral College. That concern was addressed by the clear terms of the Constitution, which made" Bribery'' a basis for impeachment. Nothing in House Democrats ' sources suggests that simply because one grave form of corruption related to elections became a basis for impeachment, then any accusations of any sort related to elections necessarily must fall within the ambit of impeachable conduct. That is simply an invention of the House Democrats.
B. House Democrats ' Charge of" Obstruction'' Fails Because Invoking Constitutionally Based Privileges and Immunities to Protect the Separation of Powers Is Not an Impeachable Offense.
House Democrats ' charge of" obstruction'' is both frivolous and dangerous. At the outset, the very suggestion that President Trump has somehow" obstructed'' Congress is preposterous. The President has been extraordinarily transparent about his interactions with President Zelenskyy. Immediately after questions arose, President Trump took the unprecedented step of declassifying and releasing the full record of his July 25 telephone call, and he later released the transcript of an April 21, 2019 call as well. It is well settled that the President has a virtually absolute right to maintain the confidentiality of his diplomatic communications with foreign leaders. And keeping such communications confidential is essential for the effective conduct of diplomacy, because it ensures that foreign leaders will be willing to talk candidly with the President. Nevertheless, after weighing such concerns, the President determined that complete transparency was important in this case, and he released both call records so that the American people could judge for themselves exactly what he said to the President of Ukraine. That should have put an end to this inquiry before it began. The President was not" obstructing'' when he freely released the central piece of evidence in this case.
The President also was not" obstructing'' when he rightly decided to defend established Executive Branch confidentiality interests, rooted in the separation of powers, against unauthorized efforts to rummage through Executive Branch files and to demand testimony from some of the President 's closest advisers. As the Supreme Court has explained, the privilege protecting the confidentiality of presidential communications" is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.'' For future occupants of the Office of President, it was essential for the President, like past occupants of the Office, to protect Executive Branch confidentiality against House Democrats ' overreaching intrusions.
The President 's proper concern for requiring the House to proceed by lawful measures and for protecting long-settled Executive Branch confidentiality interests can not be twisted into an impeachable offense. To the contrary, House Democrats ' charge of" obstruction'' comes nowhere close to the constitutional standard. It does not charge any violation of established law. More important, it is based on the fundamentally mistaken premise that the President can be removed from office for invoking established legal defenses and immunities against defective subpoenas from House committees.
The President does not commit" obstruction'' by asserting legal rights and privileges. And House Democrats turn the law on its head with their unprecedented claim that it is" obstruction'' for anyone to assert rights that might require the House to try to establish the validity of its subpoenas in court. House Democrats ' radical theories are especially misplaced where, as here, the legal principles invoked by the President and other Administration officials are critical for preserving the separation of powers-- and based on advice from the Department of Justice 's Office of Legal Counsel.
Treating a disagreement regarding constitutional limits on the House 's to compel documents or testimony as an impeachable offense would do permanent damage to the Constitution 's separation of powers and our structure of government. It would allow the House of Representatives to declare itself supreme and turn any disagreement with the Executive over informational demands into a purported basis for removing the President from office. As Professor Turley has explained," Basing impeachment on this obstruction theory would itself be an abuse of power... by Congress.''
1. President Trump Acted Properly-- and upon Advice from the Department of Justice-- by Asserting Established Legal Defenses and Immunities to Resist Legally Defective Demands for Information from House Committees.
House Democrats ' purported" obstruction'' charge is based on three actions by the President or Executive Branch officials acting under his , each of which was entirely proper and taken only after securing advice from OLC.
( a) Administration Officials Properly Refused to Comply with Subpoenas that Lacked from the House.
It was entirely proper for Administration officials to decline to comply with subpoenas issued pursuant to a purported" impeachment inquiry'' before the House of Representatives had any such inquiry. No House committee can issue subpoenas pursuant to the House 's impeachment power without from the House itself. On precisely that basis, OLC determined that all subpoenas issued before the adoption of House Resolution 660 on October 31, 2019, purportedly to advance an" impeachment inquiry,'' were unauthorized and invalid. Numerous witness subpoenas and all of the document subpoenas cited in Article II are invalid for this reason alone. These invalid subpoenas imposed no legal obligation on the recipients, and it was entirely lawful for the recipients not to comply with them. The belated adoption of House Resolution 660 on October 31 to the inquiry essentially conceded that a vote was required and did nothing to remedy the inquiry 's invalid beginnings.
( i) A Delegation of Authority from the House Is Required Before Any Committee Can Investigate Pursuant to the Impeachment Power.
No committee can exercise assigned by the Constitution to the House absent a clear delegation of from the House itself. The Constitution assigns the" sole Power of Impeachment'' to the House as a chamber-- not to individual Members or subordinate units. Assessing the validity of a committee 's inquiry and subpoenas thus requires" constru[ ing] the scope of the which the House of Representatives gave to'' the committee. Where a committee can not demonstrate that its inquiries have been by an affirmative vote of the House assigning the committee , the committee 's actions are ultra vires, and its subpoenas have no force.
To pursue an" impeachment inquiry,'' and to compel testimony and the production of documents for such an inquiry, the committee must be to conduct an inquiry pursuant to the House 's impeachment power. That power is distinct from the power to legislate assigned to Congress in Article I, Section 1. Congress 's power to investigate in support of its power to legislate is limited to inquiring into topics" on which legislation could be had.'' An impeachment inquiry is not subject to the same constraint. An impeachment inquiry does not aid Congress in considering legislation, but instead requires reconstructing past events to examine the conduct of specific persons. That differs from the forward-looking nature of any legislative investigation. Given these differences, a committee seeking to investigate pursuant to the impeachment power must show that the House has actually the committee to use that specific power.
The Speaker of the House can not treat the House 's constitutional power as her own to distribute to committees based on nothing more than her own say-so. That would exacerbate the danger of a minority faction invoking the power of impeachment to launch disruptive inquiries without any constitutional legitimacy from a majority vote in the House. It would also permit a minority to seize the House 's formidable investigative powers to pursue divisive investigations for partisan purposes that a House majority might not be willing to . House Democrats have not identified any credible support for their theory of by press conference.
( ii) Nothing in Existing House Rules Authorized Any Committee to Pursue an Impeachment Inquiry.
Nothing in the House Rules adopted at the beginning of this Congress delegated to pursue an impeachment inquiry to any committee. In particular, Rule X, which defines each committee 's jurisdiction, makes clear that it addresses only committees '" legislative jurisdiction''-- not impeachment. Rule X does not assign any committee any whatsoever with respect to impeachment. It does not even mention impeachment. And that silence is not accidental. Rule X devotes more than 2,000 words to describing the committees ' areas of jurisdiction in detail. The six committees that Speaker Pelosi instructed to take part in the purported impeachment inquiry here have their jurisdiction defined down to the most obscure legislative issues, ranging from the Judiciary Committee 's jurisdiction over"[ s] tate and territorial boundary lines'' to the Oversight Committee 's responsibility for"[ h] olidays and celebrations.'' But Rule X does not assign any committee regarding impeachment. Neither does Rule XI 's grant of specific investigative powers, such as the power to hold hearings and to issue subpoenas. Each committee 's specific investigative powers under Rule XI are restricted to Rule X 's jurisdictional limits-- which do not include impeachment.
Rule X 's history confirms that the absence of any reference to" impeachment'' was deliberate. When the House considered a number of proposals between 1973 and 1974 to transfer power from the House to committees and to remake committee jurisdiction, the House specifically rejected an initial proposal that would have added" impeachments'' to the Judiciary Committee 's jurisdiction. Instead, the House amended the rules to provide standing for committees to use investigatory powers only pursuant to their legislative jurisdiction( previously, for example, a separate House vote was required to delegate subpoena to a particular committee for a particular topic). Thus, after these amended rules were adopted, committees were able to begin investigations within their legislative jurisdiction and issue subpoenas without securing House approval, but that resolution did not self-initiated impeachment inquiries. Indeed, it was precisely because" impeachment was not specifically included within the jurisdiction of the House Judiciary Committee'' that then-Chairman Peter Rodino announced that the" Committee on the Judiciary will have to seek subpoena power from the House'' for the Nixon impeachment inquiry. The House majority, minority, and Parliamentarian, as well as the Department of Justice, all agreed on this point.
( iii) More Than 200 Years of Precedent Confirm that the House Must Vote to Begin an Impeachment Inquiry.
Historical practice confirms the need for a House vote to launch an impeachment inquiry. Since the Founding of the Republic, the House has never undertaken the solemn responsibility of a presidential impeachment inquiry without first a particular committee to begin the inquiry. That has also been the House 's nearly unbroken practice for every judicial impeachment for two hundred years.
In every prior presidential impeachment inquiry, the House adopted a resolution explicitly the committee to conduct the investigation before any compulsory process was used. In President Clinton 's impeachment, the House Judiciary Committee explained that the resolution was a constitutional requirement"[ b] ecause impeachment is delegated solely to the House of Representatives by the Constitution'' and thus" the full House of Representatives should be involved in critical decision making regarding various stages of impeachment.'' As the Judiciary Committee Chairman explained during President Nixon 's impeachment, an" [ ation]... resolution has always been passed by the House'' for an impeachment inquiry and" is a necessary step.'' Thus, he recognized that, without from the House," the committee 's subpoena power[ did] not now extend to impeachment.'' Indeed, with respect to impeachments of judges or lesser officers in the Executive Branch, the requirement that the full House pass a resolution an impeachment inquiry traces back to the first impeachments under the Constitution.
That historical practice has continued into the modern era, in which there have been only three impeachments that did not begin with a House resolution an inquiry. Each of those three outliers involved impeachment of a lower court judge during a short interlude in the 1980s. Those outliers provide no precedent for a presidential impeachment. To paraphrase the Supreme Court," when considered against 200 years of settled practice, we regard these few scattered examples as anomalies.'' In addition, as explained above,"[ t] he impeachment of a federal judge does not provide the same weighty considerations as the impeachment of a president.'' Setting aside these three outliers, precedent shows that a House vote is required to Initiate an impeachment inquiry for judges and subordinate executive officials. At least the same level of process must be used to begin the far more serious process of inquiring into impeachment of the President.
( iv) The Subpoenas Issued Before House Resolution 660 Were Invalid and Remain Invalid Because the Resolution Did Not Ratify Them.
The impeachment inquiry was unauthorized and all the subpoenas issued by House committees in pursuit of the inquiry were therefore invalid. OLC reached the same conclusion.
The vast bulk of the proceedings in the House were thus founded on the use of unlawful process to compel testimony. Until now, House Democrats have consistently agreed that a vote by the House is required to an impeachment inquiry. In 2016, House Democrats on the Judiciary Committee agreed that"[ i] n the modern era, the impeachment process begins in the House of Representatives only after the House has voted to the Judiciary Committee to investigate whether charges are warranted.'' As current Judiciary Committee member Rep. Hank Johnson said in 2016,"[ t] he impeachment process can not begin until the 435 Members of the House of Representatives adopt a resolution the House Judiciary Committee to conduct an independent investigation.'' As Chairman Nadler put it, an impeachment inquiry without a House vote is" an obvious sham'' and a" fake impeachment,'' or as House Manager Rep. Hakeem Jeffries explained, it is" a political charade,''" a sham,'' and" a Hollywood-style production.''
These invalid subpoenas remain invalid today. House Resolution 660 merely directed the six investigating committees to" continue their ongoing investigations'' and did not even purport to ratify retroactively the nearly two dozen invalid subpoenas issued before it was adopted, as OLC has explained. The House knows how to use language effectuating ratification when it wants to-- indeed, it used such language less than six months ago in a resolution that" ratifie[ d]... all subpoenas previously issued'' by a committee. The omission of anything similar from House Resolution 660 means that subpoenas issued before House Resolution 660 remain invalid, and the entire fact-gathering process pursuant to those subpoenas was ultra vires.
Contrary to false claims from House Democrats, the President did not" declare himself above impeachment,'' reject" any efforts at accommodation or compromise,'' or declare" himself and his entire branch of government exempt from subpoenas issued by the House.'' The White House simply made clear that Administration officials should not participate in House Democrats ' inquiry" under these circumstances''-- meaning a process that was unauthorized under the House 's own rules and suffered from the other serious defects. The President 's counsel also made it clear that, if the investigating committees sought to proceed under their oversight , the White House stood" ready to engage in that process as[ it] ha[ s] in the past, in a manner consistent with well-established bipartisan constitutional protections.'' It was Chairman Schiff and his colleagues who refused to engage in any accommodation process with the White House.
( b) The President Properly Asserted Immunity of His Senior Advisers from Compelled Congressional Testimony.
The President also properly directed his senior advisers not to testify in response to subpoenas. Those subpoenas suffered from a separate infirmity: they were unenforceable because the President 's senior advisers are immune from compelled testimony before Congress. Consistent with the longstanding position of the Executive Branch, OLC advised the Counsel to the President that those senior advisers( the Acting Chief of Staff, the Legal Advisor to the National Security Council, and the Deputy National Security Advisor) were immune from the subpoenas issued to them.
Across administrations of both political parties, OLC" has repeatedly provided for nearly five decades'' that" Congress may not constitutionally compel the President 's senior advisers to testify about their official duties.'' For example, President Obama asserted the same immunity for a senior adviser in 2014. Similarly, during the Clinton administration, Attorney General Janet Reno opined that" immediate advisers'' to the President are immune from being compelled to testify before Congress, and that the" the immunity such advisers enjoy from testimonial compulsion by a congressional committee is absolute and may not be overborne by competing congressional interests.'' She explained that" compelling one of the President 's immediate advisers to testify on a matter of executive decision-making would... raise serious constitutional problems, no matter what the assertion of congressional need.''
This immunity exists because senior advisers" function as the President 's alter ego.'' Allowing Congress to summon the President 's senior advisers would be tantamount to permitting Congress to subpoena the President, which would be intolerable under the Constitution:" Congress may no more summon the President to a congressional committee room than the President may command Members of Congress to appear at the White House.''
In addition, immunity is essential to protect the President 's ability to secure candid and confidential advice and have frank discussions with his advisers. It thus serves, in part, to protect the same interests that underlie Executive Privilege. As the Supreme Court has explained, the protections for confidentiality embodied in the doctrine of Executive Privilege are" fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.'' The subpoenas issued to the President 's senior advisers in this inquiry necessarily implicated three core areas of Executive Privilege-- presidential communications, national security and foreign policy information, and deliberative process.
First, one of the House Democrats ' obvious objectives was to find out about presidential communications. The document subpoena sent to Acting White House Chief of Staff Mulvaney, for instance, sought materials reflecting the President 's discussions with advisers, and Chairman Schiff 's report specifically identified documents that House Democrats sought, including" briefing materials for President Trump,'' a" presidential decision memo,'' and presidential call records.
Courts have long recognized constitutional limits on Congress 's ability to obtain presidential communications. As the Supreme Court has explained, executive decision making requires the candid exchange of ideas, and"[ h] uman experience teaches that those who expect public dissemination of their may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.'' Protecting the confidentiality of communications ensures the President 's ability to receive candid advice.
Second, there can be no dispute that the matters at issue here implicate national security and foreign policy. As Deputy National Security Adviser Kupperman has explained, House Democrats were" seeking testimony relating to confidential national security communications concerning Ukraine.'' But OLC has established that" immunity is particularly justified'' where a senior official 's" duties concern national security'' or" relations with a foreign government''-- subject areas where the President 's is at its zenith under the Constitution. As the Supreme Court explained in United States v. Nixon, the" courts have traditionally shown the utmost deference to Presidential responsibilities'' for foreign policy and national security, and claims of privilege in this area thus receive a higher degree of deference than invocations of" a President 's generalized interest in confidentiality.''
The House 's inquiry involved communications with a foreign leader and the development of foreign policy toward a foreign country. There are few areas where the President 's powers under the Constitution are greater and his obligation to protect internal Executive Branch deliberations more profound.
Third, House Democrats were seeking deliberative process information. For instance, the committees requested White House documents reflecting internal deliberations about foreign aid, the delegation to President Zelenskyy 's inauguration, and potential meetings with foreign leaders. Courts have long recognized that the" deliberative process privilege'' applies across the Executive Branch and protects" materials that would reveal advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'' The privilege prevents" injury to the quality of agency decisions by allowing government officials freedom to debate alternative approaches in private,'' and the privilege has been consistently recognized by administrations of both political parties.
( c) Administration Officials Properly Instructed Employees Not to Testify Before Committees that Improperly Excluded Agency Counsel.
Subpoenas for testimony from other Executive Branch officials suffered from a distinct flaw. They impermissibly demanded that officials testify without agency counsel present. OLC has determined that congressional committees" may not bar agency counsel from assisting an executive branch witness without contravening the legitimate prerogatives of the Executive Branch,'' and that attempting to enforce a subpoena while barring agency counsel" would be unconstitutional.'' As OLC explained, that principle applies in the context of the House 's purported impeachment inquiry just as it applies in more routine congressional oversight requests.
The requirement for congressional committees to permit agency counsel to attend depositions of Executive Branch officials is firmly grounded in the President 's constitutional " to protect privileged information from disclosure'' and to" control the activities of subordinate officials within the Executive Branch.'' As OLC has explained, without the assistance of agency counsel, an Executive Branch employee might not be able to determine when a question invaded a privileged area. It is the vital role of agency counsel to ensure that constitutionally based confidentiality interests are protected. Congressional rules do not override these constitutional principles, and there is no legitimate reason for House Democrats to seek to deprive these officials of the assistance of appropriate counsel.
The important role of agency counsel in congressional inquiries has been recognized by administrations of both political parties. During the Obama Administration, for instance, OLC stated that exclusion of agency counsel" could potentially undermine the Executive Branch 's ability to protect its confidentiality interests in the course of the constitutionally mandated accommodation process, as well as the President 's constitutional to consider and assert executive privilege where appropriate.''
Requiring agency counsel to be present when Executive Branch employees testify does not raise any insurmountable problems for congressional information gathering. To the contrary, as recently as April 2019, the House Committee on Oversight and Government Reform and the Trump Administration were able to work out an accommodation that satisfied both and Information request and the need to have agency counsel present for an interview. In that case, after initially threatening contempt proceedings over a dispute, the late Chairman Elijah Cummings allowed White House attorneys to attend a transcribed interview of the former Director of the White House Personnel Security Office. House Democrats could have eliminated a significant legal defect in their subpoenas simply by following Chairman Cummings ' example. They did not take this step, so the Administration properly accepted the advice of OLC that House Democrats ' actions were unconstitutional and directed witnesses not to appear without agency counsel present.
2. Asserting Legal Defenses and Immunities Grounded in the Constitution 's Separation of Powers Is Not an Impeachable Offense.
House Democrats ' theory that it is" obstruction'' for the President to assert legal rights-- especially rights and immunities grounded in the separation of powers-- turns the law on its head and would do permanent damage to the structure of our government.
( a) Asserting Legal Defenses and Privileges Is Not" Obstruction.''
Under fundamental principles of our legal system, asserting legal defenses can not be labeled unlawful" obstruction.'' In a government of laws, asserting legal defenses is a fundamental right. As the Supreme Court has explained:"[ F] or an agent of the State to pursue a course of action whose objective is to penalize a person 's reliance on his legal rights is` patently unconstitutional. ''' As Harvard Law Professor Laurence Tribe correctly explained in 1998, the same basic principles apply in impeachment:
The allegations that invoking privileges and otherwise using the judicial system to shield information... is an abuse of power that should lead to impeachment and removal from office is not only frivolous, but also dangerous.
Similarly, in 1998, now-Chairman Nadler of the House Judiciary Committee agreed that a president can not be impeached for asserting a legal privilege. As he put it," the use of a legal privilege is not illegal or impeachable by itself, a legal privilege, executive privilege.''
House Democrats, however, ran roughshod over these principles. They repeatedly threatened Executive Branch officials with obstruction charges if the officials dared to assert legal rights against defective subpoenas. They claimed that any" failure or refusal to comply with[ a] subpoena, including at the direction or behest of the President or others at the White House, shall constitute evidence of obstruction.'' Even worse, Chairman Schiff made the remarkable claim that any action" that forces us to litigate or have to consider litigation, will be considered further evidence of obstruction of justice.'' Those assertions turn core principles of the law inside out.
( b) House Democrats ' Radical Theory of" Obstruction'' Would Do Grave Damage to the Separation of Powers.
More important, in the context of House demands for information from the Executive Branch, House Democrats ' radical theory that asserting legal privileges should be treated immediately as impeachable" obstruction'' would do lasting damage to the separation of powers.
The Legislative and Executive Branches have frequently clashed on questions of constitutional interpretation, including on issues surrounding congressional demands for information, since the very first presidential administration. Such interbranch conflicts are not evidence of an impeachable offense. To the contrary, they are part of the constitutional design.
The Founders anticipated that the branches might have differing interpretations of the Constitution and might come into conflict. As Madison explained," the Legislative, Executive, and Judicial departments... must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it.'' Friction between the branches on such points is part of the separation of powers at work.
When the Legislative and Executive Branches disagree about their constitutional duties with respect to information, the proper and historically accepted solution is not an article of impeachment. Instead, it is for the branches to engage in a constitutionally mandated accommodation process in an effort to resolve the disagreement. As courts have explained, this"[ n] egotiation between the two branches'' is" a dynamic process affirmatively furthering the constitutional scheme.''
Where the accommodation process fails, Congress has other tools at its disposal to address a disagreement with the Executive. Historically, the House has held Executive Branch officials in contempt. The process of holding a formal vote of the House on a contempt resolution ensures that the House itself examines the subpoena in question and weighs in on launching a full-blown confrontation with the Executive Branch. In addition, in recent times, the House of Representatives has taken the view that it may sue in court to obtain a judicial determination of the validity of its subpoenas and an injunction to enforce them.
In this case, if House Democrats had actually been interested in securing information( rather than merely adding a phony count to their impeachment charge sheet), the proper course would have been to engage with the Administration in one or more of these mechanisms for resolving the interbranch conflict. House Democrats rejected any effort to pursue any of these avenues. Instead, they simply announced that constitutional accommodation, contempt, and litigation were all too inconvenient for their politically driven timetable and that they must impeach the President immediately.
Permitting that approach and treating the President 's response to the subpoenas as an impeachable offense would do grave damage to the separation of powers. Suggesting that every congressional demand for information must automatically be obeyed on pain of impeachment would undermine the foundational premise that the Legislative and Executive Branches are coequal branches of the government, neither of which is subservient to the other. As Madison explained, where the Executive and the Legislative Branches come into conflict" neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.'' That is why the courts have insisted on an accommodations process by which the two branches work to reach a compromise in which the interest of each branch is addressed. House Democrats, by contrast, have declared the House supreme not only over the Executive Branch, but also over the Judicial Branch, by baldly proclaiming that, whenever a committee chairman invokes the possibility of impeachment, the House itself is the sole judge of its own powers, because( in their view)" the Constitution gives the House the final word.''
House Democrats ' theory is unprecedented and dangerous for our structure of government. There is no reason to believe that the House, acting as judge in its own case, will properly acknowledge limits on its own powers. That is evident from numerous cases in which courts have refused to enforce congressional subpoenas because they are invalid or overbroad. More important, the House Democrats ' theory means that the House could dangle the threat of impeachment over every congressional demand for information. Trivializing impeachment in this manner would functionally transform our government into precisely the type of parliamentary system the Framers rejected.
In his testimony before the House Judiciary Committee, Professor Turley rightly pointed out that, by" claiming Congress can demand any testimony or documents and then impeach any president who dares to go to the courts,'' House Democrats were advancing a position that was" entirely untenable and abusive[ of] an impeachment.'' Other scholars agree. In the Clinton impeachment, for example, Professor Susan Low Bloch testified that" impeaching a president for invoking lawful privileges is a dangerous and ominous precedent.''
In the past, the House itself has agreed and has recognized that a President can not be impeached for asserting a privilege. For example, the House Judiciary Committee rejected as a ground for impeachment the allegation that President Clinton had" frivolously and corruptly asserted executive privilege'' in connection with a criminal investigation. Although the Committee believed that" the President ha[ d] improperly exercised executive privilege,'' it nevertheless determined that this was not an" impeachable offense.'' Similarly, over 175 years ago, the House rejected an attempt to impeach President Tyler" for abusing his powers based on his refusals to with the House inside details on whom he was considering to nominate to various confirmable positions and his vetoing of a wide range of Whig-sponsored legislation.''
If House Democrats ' unprecedented theory of" obstruction of Congress'' were correct, virtually every President could have been impeached. Throughout our history, Presidents have refused to information with Congress. For example, when Congress investigated Operation Fast and Furious during the last administration, President Obama invoked Executive Privilege with respect to documents responsive to a congressional subpoena. Instead of a rash rush to impeachment, House Republicans secured a favorable court ruling on President Obama 's assertion of privilege. President Trump 's actions are entirely consistent with such steps taken by his predecessors. As Professor Turley explained,"[ i] f this Committee elects to seek impeachment on the failure to yield to congressional demands in an oversight or impeachment investigation, it will have to distinguish a long line of cases where prior presidents sought...[ judicial] review while withholding witnesses and documents.''
House Democrats fare no better in claiming that President Trump announced a more" categorical'' refusal to cooperate with House demands than any past president. That claim misunderstands the law and misrepresents both the President 's conduct and history. On the law, there is nothing impermissible about asserting rights consistently and" categorically.'' There is no requirement for a President to cede Executive Branch confidentiality interests some of the time lest he be too" categorical'' in their defense. On the facts, the President did not issue a categorical refusal. As noted above, the Counsel to the President made clear to House Democrats that, if they sought to pursue regular oversight, the Administration would" stand ready to engage in that process as we have in the past, in a manner consistent with well-established bipartisan constitutional protections.'' It was House Democrats who refused to engage in the accommodation process. And as for history, past Presidents-- such as Presidents Truman, Coolidge, and Jackson-- did announce categorical refusals to cooperate at all with congressional inquiries. None was impeached as a result.
Contrary to House Democrats ' assertions, it also makes no difference that the subpoenas here were purportedly issued as part of an impeachment inquiry. The defenses and immunities the President has asserted are grounded in the separation of powers and protect confidentiality interests that are vital for the functioning of the Executive Branch. Those defenses and immunities do not disappear the instant the House opens an impeachment inquiry. Just as with the judicial need for evidence in a criminal trial, the House 's interest in investigating does not mean Executive Privilege goes away; instead," it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch.'' If anything, the interbranch conflict inherent in an impeachment inquiry heightens the need for scrupulous adherence to principles preserving each branch 's mechanisms for protecting its own legitimate sphere of .
House Democrats ' insistence that the Constitution assigns the House the" sole Power of Impeachment'' does nothing to advance their argument. That provision simply makes clear that the power of impeachment is assigned to the House and not anywhere else. It does not make the power of impeachment a paramount that sweeps away the constitutionally based privileges of other branches. The fundamental Madisonian principle that each branch must place checks on the others-- that"[ a] mbition must be made to counteract ambition''-- continues to apply even when the House invokes the power of impeachment. The mere fact that impeachment provides an ultimate check on the Executive does not mean the Framers made it a blank check for the House to expand its power without limit.
OLC has determined that Executive Privilege principles continue to apply in an impeachment inquiry. And scholars agree that Presidents may assert privileges in response to demands for information in an impeachment inquiry, as Executive Privilege is" essential to the... dignified conduct of the presidency and to the free flow of candid advice to the President.''
None of the excuses House Democrats have offered justifies their unprecedented leap to impeachment while bypassing any effort either to seek constitutionally mandated accommodations or to go to court. Their claim that there was no time is no justification. As Professor Turley has explained,"[ t] he decision to adopt an abbreviated schedule for the investigation and not to seek to compel such testimony[ in court] is a strategic choice of the House leadership. It is not the grounds for an impeachment.'' Nor is their claim about urgency credible. The only constraint on timing here came from House Democrats ' self-imposed deadline to ensure that this impeachment charade would not drag on into the Democratic primary season. They also showed no urgency when they waited four weeks to send the Articles of Impeachment to the Senate. If House Democrats had cared about constitutional precedent, they would have adhered to the ordinary timetable for something as momentous as a presidential impeachment and would have taken the time to work out disputes with the Executive Branch on subpoenas. House Democrats arbitrarily decided to skip that step.
Next, Democrats falsely claim that that" the House has never before relied on litigation to compel witness testimony or the production of documents in a Presidential impeachment proceeding.'' But the House has filed such lawsuits, including just last year. In one case, the House made a court filing asserting that its impeachment inquiry entitled it to certain grand jury information on the same day the House Judiciary Committee issued its report. And in another case purportedly based on an impeachment inquiry, House Democrats recently argued that, when at an impasse, disputes with the Executive Branch can" only be resolved by the courts.'' These filings are flatly inconsistent with House Democrats ' position here, where they claim that any impasse should lead to impeachment.
Lastly, House Democrats also find no support for their theory of" obstruction'' in the Clinton and Nixon impeachment proceedings. To the contrary, the Clinton proceedings establish conclusively that there is no plausible basis for an article of impeachment based on the assertion of rights and privileges. In 1997 and 1998, there had been numerous court rulings rejecting various assertions of Executive Privilege by President Clinton. The House Judiciary Committee concluded that Clinton 's assertions of Executive Privilege were frivolous, especially because they related to" purely private'' matters-- not official actions. Nevertheless, the Committee decided that the assertions of privilege did not constitute an" impeachable offense.''
Nothing from the Nixon impeachment proceedings supports House Democrats either. The record there included evidence that, as part of efforts to cover up the Watergate break-in, the President had( among other things): provided information from the Department of Justice to subjects of criminal investigations to help them evade justice; used the FBI, Secret Service, and Executive Branch personnel to conduct illegal electronic surveillance; and illegally attempted to secure access to tax return information in order to influence individuals. Moreover, the Committee had transcripts of tapes on which the President discussed asserting privileges, not to protect governmental decision making, but solely to stymie the investigation into the break-in. It was only in that context that the House Judiciary Committee narrowly recommended an article of impeachment asserting that President Nixon had" failed without lawful cause or excuse to produce papers and things'' sought by Congress. There is nothing remotely comparable in this case. Among other things, every step the Trump Administration has taken has been well-founded in law and supported by the opinion of the Department of Justice. Moreover, the subpoenas here attempted to probe into matters involving the conduct of foreign relations-- matters squarely at the core of Executive Privilege where the President 's powers and need to preserve confidentiality are at their apex.
( c) The President Can not Be Removed from Office Based on a Difference in Legal Opinion.
House Democrats ' reckless" obstruction'' theory is further flawed because it asks the Senate to remove a duly elected President from office based on differences of legal opinion in which the President acted on the advice of OLC. As explained above, the Framers restricted impeachment to remedy solely egregious conduct that endangers the constitutional structure of government. No matter how House Democrats try to dress up their claim, a difference of legal opinion over an assertion of grounds to resist subpoenas does not rise to that level. The Framers themselves recognized that differences of opinion could not justify impeachment. As Edmund Randolph explained in the Virginia ratifying convention,"[ n] o man ever thought of impeaching a man for an opinion.''
Until now, that principle has prevailed, as the House has expressly rejected attempts to impeach presidents based on legal disputes over assertions of privilege. As noted above, in the Clinton impeachment, the House Judiciary Committee rejected a draft article alleging that President Clinton had" frivolously and corruptly asserted executive privilege.'' Even though the Committee concluded that" the President ha[ d] improperly exercised executive privilege,'' it decided that this was not an" impeachable offense.'' The Committee concluded it did not have" the ability to second guess the rationale behind the President or what was in his mind in asserting that executive privilege'' and it" ought to give... the benefit of the doubt[ to the President] in the assertion of executive privilege.'' As the Committee recognized, members of Congress need not agree that a President 's assertion of a privilege or immunity is correct to recognize that making the assertion of legal privileges itself an impeachable offense is a dangerous and unwarranted step.
The House took a similar view in rejecting an attempt to impeach President Tyler in 1843 when he refused congressional demands for information. As Professor Gerhardt has explained:
Tyler 's attempts to protect and assert what he regarded as the prerogatives of his office were a function of his constitutional and policy judgments; they might have been wrong-headed or even poorly conceived( at least in the view of many Whigs in Congress), but they were not malicious efforts to abuse or expand his powers...
President Trump 's resistance to congressional subpoenas here was similarly" a function of his constitutional and policy judgments.'' As the House recognized in the cases of President Tyler and President Clinton, divergent views on such matters can not possibly be sufficient to remove a duly elected president from office. And that is especially the case here, where President Trump 's actions were expressly based on advice from the Department of Justice.