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  White House Trial Memorandum Jan. 20, 2020 : Standards and Procedural History (pp13-23)


The extraordinary process invoked by House Democrats under Article II, Section 4 of the Constitution is not the constitutionally preferred means to determine who should lead our country.
It is a mechanism of last resort, reserved for exceptional circumstances-- not present here-- in which a President has engaged in unlawful conduct that strikes at the core of our constitutional system of government.

The Senate Must Decide All Questions of Law and Fact.

The Constitution makes clear that an impeachment by the House of Representatives is nothing more than an accusation.
The Articles of Impeachment approved by the House come to the Senate with no presumption of regularity in their favor. On each of the two prior occasions that the House adopted articles of impeachment against a President, the Senate refused to convict on them. Indeed, the Framers wisely forewarned that the House could impeach for the wrong reasons. That is why the Constitution entrusts the Senate with the" sole Power to try all Impeachments.'' Under that charge, it is the Senate 's constitutional duty to decide for itself all matters of law and fact bearing upon this trial. These decisions include whether the accusation presented by House Democrats even rises to the level of describing an impeachable offense, the standard of proof that House Democrats must meet to prove their case, and whether they have met this burden. As Rep. John Logan, a House manager in President Johnson 's impeachment trial, explained" all questions of law or of fact are to be decided in these proceedings by the final vote'' of the Senate, and" in determining this general issue Senators must consider the sufficiency or insufficiency in law or in fact of every article of accusation.''

An Impeachable Offense Requires a Violation of Established Law that Inflicts Sufficiently Egregious Harm on the Government that It Threatens to Subvert the Constitution.

The President of the United States occupies a unique position in the structure of our government.
He is chosen directly by the People through a national election to be the head of an entire branch of government and Commander-in-Chief of the armed forces and is entrusted with enormous responsibilities for setting policies for the Nation. Whether Congress should supplant the will expressed by tens of millions of voters by removing the President from office is a question of breathtaking gravity. Approaching that question requires a clear understanding of the limits the Constitution places on what counts-- and what does not count-- as an impeachable offense.

Text and Drafting History of the Impeachment Clause

Fearful that the power of impeachment might be abused, and recognizing that constitutional protections were required for the Executive, the Framers crafted a limited power of impeachment.
The Constitution restricts impeachment to enumerated offenses:" Treason, Bribery, or other high Crimes and Misdemeanors.'' Treason and bribery are well defined offenses and are not at issue in this case. The operative text here is the more general phrase" other high Crimes and Misdemeanors.'' The structure and language of the clause-- the use of the adjective" other'' to describe" high Crimes and Misdemeanors'' in a list immediately following the specific offenses" Treason'' and" Bribery''-- calls for applying the ejusdem generis canon of interpretation. This canon instructs that ```[ w] here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.'' Under that principle," other high Crimes and Misdemeanors'' must be understood to have the same qualities-- in terms of seriousness and their effect on the functioning of government-- as the crimes of" Treason'' and" Bribery.''

Treason is defined specifically in the Constitution and" consist[ s] only in levying War

against[ the United States], or in adhering to their Enemies, giving them Aid and Comfort.''
This offense is" a crime against and undermining the very existence of the Government.'' Bribery, like treason, is a serious offense against the government that subverts the proper functioning of the state. Blackstone, a" dominant source of authority'' for the Framers, called bribery an" offense against public justice.'' Professor Akhil Amar describes bribery as" secretly bending laws to favor the rich and powerful'' and contends that in this context it" involves official corruption of a highly malignant sort, threatening the very soul of a democracy committed to equality under the law.'' According to Professor Philip Bobbitt,"[ l] ike treason, the impeachable offense of bribery... must be an act that actually threatens the constitutional stability and security of the State.'' The text of the Constitution thus indicates that the" other'' crimes and misdemeanors that qualify as impeachable offenses must be sufficiently egregious that, like treason and bribery, they involve a fundamental betrayal that threatens to subvert the constitutional order of government.

Treason and bribery are also, of course, offenses defined by law.
Each of the seven other references in the Constitution to impeachment also supports the conclusion that impeachments must be evaluated in terms of offenses against settled law: The Constitution refers to" Conviction'' for impeachable offenses 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 use of the term" high'' in the Impeachment Clause is also significant, and was clearly deliberate.
Under English common law," high'' indicated crimes against the state; Blackstone defined" high treason'' to include only offenses against" the supreme executive power, or the king and his government,'' calling it the" highest civil crime.''

In addition," high Crimes and Misdemeanors'' had a technical meaning in English law, and there is evidence that the Framers were aware of this" limited,''" technical meaning.''
In England," high Crimes and Misdemeanors'' referred to offenses that could be the subject of impeachment in parliament. No less an authority than Blackstone, however, made clear that" an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law.'' As a result, nothing in the Constitution 's use of the term" other high Crimes and Misdemeanors'' suggests that impeachment under the Constitution could reach anything other than a known offense defined in existing law.

Significantly, the records of the Constitutional Convention also make clear that, in important respects, the Framers intended the scope of impeachable offenses under the Constitution to be much narrower than under English practice.
When the draft Constitution had limited the grounds for impeachment to" Treason, or bribery,'' George Mason argued that the provision was too narrow because"[ a] ttempts to subvert the Constitution may not be Treason'' and that the clause" will not reach many great and dangerous offenses.'' He proposed the addition of" maladministration,'' which had been a ground for impeachment in English practice. Madison opposed that change on the ground that"[ s] o vague a term'' would make the President subject to" a tenure during[ the] pleasure of the Senate,'' and the Convention agreed on adding" other high crimes & misdemeanors'' instead.

By rejecting" maladministration,'' the Framers significantly narrowed impeachment under the Constitution and made clear that mere differences of opinion, unpopular policy decisions, or perceived misjudgments can not constitutionally be used as the basis for impeachment.
Indeed, at various earlier points during the Convention, drafts of the Constitution had included as grounds for impeachment" malpractice or neglect of duty'' and" neglect of duty[ and] malversation,'' but the Framers rejected all of these formulations. The ratification debates confirmed the point that differences of opinion or differences over policy could not justify impeachment. James Iredell warned delegates to North Carolina 's ratifying convention that"[ a] mere difference of opinion might be interpreted, by the malignity of party, into a deliberate, wicked action,'' and thus should not provide the basis for impeachment. And Edmund Randolph pointed out in the Virginia ratifying convention that"[ n] o man ever thought of impeaching a man for an opinion.''

Taken together, the text, drafting history, and debates surrounding the Constitution make several points clear.
First, the debates" make quite plain that the Framers, far from proposing to confer illimitable power to impeach and convict, intended to confer a limited power.'' As Senator Leahy has put it,"[ t] he Framers purposely restrained the Congress and carefully circumscribed[ its] power to remove the head of the co-equal Executive Branch.''

Second, the terminology of" high Crimes and Misdemeanors'' makes clear that an impeachable offense must be a violation of established law.
The Impeachment Clause did not confer upon Congress a roving license to make up new standards of conduct for government officials and to permit removal from office merely on a conclusion that conduct was" bad'' if there was not an existing law that it violated.

Third, by establishing that" other'' impeachable offenses must fall in the same class as the specific offenses of" treason'' and" bribery,'' the Framers intended to establish a requirement of particularly egregious conduct threatening the constitutional order to justify impeachment.
Justice Story recognized impeachment was" intended for occasional and extraordinary cases'' only. For Professor Bobbitt,"[ a] n impeachable offense is one that puts the Constitution in jeopardy.'' Removal of the freely elected President of the United States based on any lesser standard would violate the plan of the Founders, who built our government on the principle it would" deriv[ e][ its] just powers from the consent of the governed.''

The President 's Unique Role in Our Constitutional Structure

For at least two reasons, the President 's unique role in our constitutional structure buttresses the conclusion that offenses warranting presidential impeachment must involve especially egregious conduct that threatens to subvert the constitutional order of government.

First, conviction of a President raises particularly profound issues under our constitutional structure because it means overturning the democratically expressed will of the people in the only national election in which all eligible citizens participate.
The impeachment power permits the possibility that" the legislative branch[ will] essentially cancel[] the results of the most solemn collective act of which we as a constitutional democracy are capable: the national election of a President.''

As even the House Managers have acknowledged," the issue'' in a presidential impeachment trial" is whether to overturn the results of a national election, the free expression of the popular will of the American people.''
That step can be justified only by an offense crossing an exceptional threshold. As Chairman Nadler has put it,"[ w] e must not overturn an election and remove a President from office except to defend our system of government or our constitutional liberties against a dire threat...'' Especially where the American people are already starting the process of voting for candidates for the next presidential election, removing a President from office and taking that decision away from the people requires meeting an extraordinarily high standard. As then-Senator Biden confirmed during President Clinton 's trial," to remove a duly elected president will unavoidably harm our constitutional structure'' and"[ r] emoving the President from office without compelling evidence would be historically anti-democratic.''

Any lesser standard would be inconsistent with the unique importance of the President 's role in the structure of the government, the profound disruption and danger of uncertainty that attend to removing a president from office, and the grave implications of negating the will of the people expressed in a national election.

Second, because the President himself is vested with the authority of an entire branch of the federal government, his removal would cause extraordinary disruption to the Nation.
Article II, Section 1 declares in no uncertain terms that"[ t] he executive Power shall be vested in a President of the United States of America.'' As Justice Breyer has explained," Article II makes a single President responsible for the actions of the Executive Branch in much the same way that the entire Congress is responsible for the actions of the Legislative Branch, or the entire Judiciary for those of the Judicial Branch.'' As a result," the application of the Impeachment Clause to the President of the United States involves the uniquely solemn act of having one branch essentially overthrow another.'' It also carries the risk of profound disruption for the operation of the federal government.

As" the chief constitutional officer of the Executive branch,'' the President is" entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity.''
Because he is assigned responsibility to" take Care that the Laws be faithfully executed,'' all federal law enforcement depends, ultimately, on the direction of the President. In addition, he is the Commander-in-Chief of the armed forces and" the sole organ of the federal government in the field of international relations.'' The foreign policy of the Nation is determined primarily by the President. His removal would necessarily create uncertainty and pose unique risks for U.S. interests around the globe. As OLC put it, removal of the President would be" politically and constitutionally a traumatic event,'' and Senator Bob Graham rightly called it" one of the most disruptive acts imaginable in a democracy'' during President Clinton 's trial.

Practice Under the Impeachment Clause

The practical application of the Impeachment Clause by Congress supports the conclusion that an impeachable offense requires especially egregious conduct that threatens the constitutional order and, specifically, that it requires a violation of established law.
The extraordinary threshold required for impeachment is evidenced by the fact that, in over two centuries under our Constitution, the House has impeached a President only twice. In each case, moreover, the Senate found the charges brought by the House insufficient to warrant removal from office.

In addition, until now, even in the articles of impeachment that the Senate found insufficient, the House has never impeached a President on charges that did not include a violation of established law.
President Clinton was impeached on charges that included perjury and obstruction of justice, both felonies under federal law. Similarly, in the near-impeachment of President Nixon, the articles of impeachment approved by the House Judiciary Committee included multiple violations of law. Article I alleged obstruction of justice. And Article II asserted numerous legal breaches.

The impeachment of Andrew Johnson proves the same point.
In 1867, the House Judiciary Committee recommended articles of impeachment against President Johnson. The articles, however, did not allege any violation of law. Largely as a result of that fact, the Committee could not secure approval for them from a majority of the House. The minority report from the Committee arguing against adoption of the articles of impeachment explained that"[ t] he House of Representatives may impeach a civil officer, but it must be done according to law. It must be for some offence known to the law, and not created by the fancy of the members of the House.'' Rep. James F. Wilson argued the position of the minority report on the House floor, explaining that" no civil officer of the United States can be lawfully impeached except for a crime or misdemeanor known to the law.'' As one historian has explained,"[ t] he House had refused to impeach Andrew Johnson... at least in part because many representatives did not believe he had committed a specific violation of law.'' It was only after President Johnson violated the Tenure of Office Act, a law passed by Congress, that he was successfully impeached.

Even if judicial impeachments have been based on charges that do not involve a criminal offense or violation of statute, that would provide no sound basis for diluting the standards for presidential impeachment.
Textually, the Constitution 's Good Behavior Clause alters the standard for the impeachment of judges. In addition, for all the reasons outlined above, the President 's unique role in the constitutional structure sets him apart and warrants more rigorous standards for impeachment." When Senators remove one of a thousand federal judges( or even one of nine justices), they are not transforming an entire branch of government. But that is exactly what happens when they oust America 's one and only President, in whom all executive power is vested by the first sentence of Article II.'' Unlike a presidential impeachment inquiry, impeachment of a federal judge" does not paralyze the Nation'' or cast doubt on the direction of the country 's domestic and foreign policy. Similarly,"[ t] he grounds for the expulsion of the one person elected by the entire nation to preside over the executive can not be the same as those for one member of the almost four-thousand-member federal judiciary.'' Thus, as then-Senator Biden recognized:" The constitutional scholarship overwhelmingly recognizes that the fundamental structural commitment to a separation of powers requires[ the Senate] to view the President as different than a Federal judge.'' Indeed," our history establishes that, as applied, the constitutional standard for impeaching the President has been distinctive, and properly so.''

The Senate Can not Convict Unless It Finds that the House Managers Have Proved an Impeachable Offense Beyond a Reasonable Doubt.

Given the profound implications of removing a duly elected president from office, an exceptionally demanding standard of proof must apply in a presidential impeachment trial.
Senators should convict on articles of impeachment against a President only if they find that the House Managers have carried their burden of proving that the President committed an impeachable offense beyond a reasonable doubt.

As Senator Russ Feingold recognized in the Clinton impeachment,"[ i] n making a decision of this magnitude, it is best not to err at all.
If we must err, however, we should err on the side of... respecting the will of the people.'' Democrat and Republican Senators alike applied the beyond a reasonable doubt standard during President Clinton 's impeachment trial. As Senator Barbara Mikulski put it then:" The U.S. Senate must not make the decision to remove a President based on a hunch that the charges may be true. The strength of our Constitution and the strength of our Nation dictate that[ the Senate] be sure-- beyond a reasonable doubt.''

The Senate May Not Consider Allegations Not Charged in the Articles of Impeachment.

Under the Constitution, the House is given the" sole Power of Impeachment'' and the Senate is given the" sole Power to try all Impeachments.''
An impeachment is literally a" charge'' of particular wrongdoing. Thus, under the division of responsibility in the Constitution, the Senate can conduct a trial solely on the charges specified in articles of impeachment approved by a vote of the House and presented to the Senate. The Senate can not expand the scope of a trial to consider mere assertions appearing in House reports that the House did not include in the articles of impeachment submitted to a vote. Similarly, House Managers trying the case in the Senate must be confined to the specific conduct alleged in the Articles approved by the House.

These restrictions follow both from the plain terms of the Constitution limiting the Senate to trying an" impeachment'' framed by the House and from elementary principles of due process.
"[ T] he senator 's role is solely one of acting on the accusations( Articles of Impeachment) voted by the House of Representatives. The Senate can not lawfully find the president guilty of something not charged by the House, any more than a trial jury can find a defendant guilty of something not charged in the indictment.''" No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused.'' As the Supreme Court has explained, it has been the rule for over 130 years that" a court can not permit a defendant to be tried on charges that are not made in the indictment against him.'' Doing so is" fatal error.''

Under the same principles of due process, the Senate must similarly refuse to consider any uncharged allegations as a basis for conviction.


House Democrats have focused these proceedings on a telephone conversation between President Trump and President Zelenskyy of Ukraine on July 25, 2019.
At some unknown time shortly after that call, a staffer in the Intelligence Community( IC)-- who had no first-hand knowledge of the call-- approached the staff of Chairman Adam Schiff on the House Permanent Select Committee on Intelligence( HPSCI) raising complaints about the call. Although it is known that Chairman Schiff 's staff provided the IC staffer some" guidance,'' the extent of the so-called whistleblower 's coordination with Chairman Schiff 's staff remains unknown to this day.

The IC staffer retained counsel, including an attorney who had announced just days after President Trump took office that he supported a" coup'' and" rebellion'' to remove the President from office.

On August 12, 2019, the IC staffer filed a complaint about the July 25 telephone call with the Inspector General of the IC.
The Inspector General found that there was" some indicia of an arguable political bias on the part of[ the so-called whistleblower] in favor of a rival political candidate.''

On September 24, 2019, Speaker Nancy Pelosi unilaterally announced at a press conference that" the House of Representatives is moving forward with an official impeachment inquiry'' based on the anonymous complaint about the July 25 telephone call.
There was no vote by the House to authorize such an inquiry.

On September 25, pursuant to a previous announcement, the President declassified and released the complete record of the July 25 call.

On September 26, HPSCI held its first hearing regarding the so-called whistleblower complaint.
And just one week later, on October 3, Chairman Schiff began a series of secret, closed-door hearings regarding the complaint. The President and his counsel were not permitted to participate in any of these proceedings.

On October 31, after five weeks of hearings, House Democrats finally authorized an impeachment inquiry when the full House voted to approve House Resolution 660.
By its terms, the Resolution did not purport to retroactively authorize investigative efforts before October 31.

On November 13, HPSCI held the first of seven public hearings featuring some of the witnesses who had already testified in secret.
At this stage, too, the President and his counsel were denied any opportunity to participate. HPSCI released a report on December 3, 2019.

On December 4, the House Judiciary Committee held its first hearing, which featured four law professors, three of whom were selected by Democrats.
The next day, December 5, Speaker Pelosi announced the outcome of the Judiciary Committee 's proceedings and directed Chairman Jerrold Nadler to draft articles of impeachment.

On December 9, four days after Speaker Pelosi announced that articles of impeachment would be drafted, the Judiciary Committee held its second and last hearing, which featured presentations solely from staff members from HPSCI and the Judiciary Committee.
The House Judiciary Committee did not hear from any fact witnesses at any time.

On December 10, Chairman Jerrold Nadler offered two articles of impeachment for the Judiciary Committee 's consideration, and the Committee approved the articles on December 13 on a party-line vote.

On December 18, a mere 85 days after the press conference purportedly launching the inquiry, House Democrats completed the fastest presidential impeachment inquiry in history and adopted the Articles of Impeachment over bipartisan opposition.

House Democrats justified their unseemly haste by claiming they had to move forward" without delay'' because the President would allegedly" continue to threaten the Nation 's security, democracy, and constitutional system if he is allowed to remain in office.''
In a remarkable reversal, however, as soon as they had voted, they decided that there was no urgency at all. House Democrats took a leisurely four weeks to complete the ministerial act of transmitting the articles to the Senate-- more than three times longer than the entire length of proceedings before the House Judiciary Committee.

The Senate now has the" sole Power to try'' the Articles of Impeachment transmitted by the House.
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