Narrative
II. The Articles Resulted from an Impeachment Inquiry that Violated All Precedent and Denied the President Constitutionally Required Due Process.
Three defects make the House 's purported impeachment inquiry irredeemably flawed. First, as the Department of Justice advised at the time, the House 's investigating committees compelled testimony and documents by issuing subpoenas that were invalid when issued and are invalid today. See Parts I.B. 1( a), II.A. Second, the impeachment inquiry failed to provide due process to the President as required by the Constitution. See Part II.B. Contrary to 150 years of precedent, the House excluded the President from the process, denying him any right to participate or defend himself. House Democrats only pretended to provide the President any rights after the entire factual record had been compiled in ex parte hearings and after Speaker Pelosi had predetermined the result by instructing the Judiciary Committee to draft articles of impeachment. Third, the House 's factual investigation was supervised by an interested fact witness, Chairman Schiff, who-- after falsely denying it-- admitted that his staff had been in contact with the whistleblower and had given him guidance. See Part II.C. These three fundamental errors infected the underpinnings of this trial, and the Senate can not constitutionally rely upon House Democrats ' tainted record to reach any verdict other than acquittal. See Part II.D. Nor is it the Senate 's role to give House Democrats a" do-over'' to develop the record anew in the Senate. These errors require rejecting the Articles and acquitting the President. A. The Purported Impeachment Inquiry Was Unauthorized at the Outset and Compelled Testimony Based on Nearly Two Dozen Invalid Subpoenas. It is emblematic of the rush to judgment throughout the House 's slap-dash impeachment inquiry that Chairman Schiff 's investigating committees began issuing subpoenas and compelling testimony when they plainly had no authority to do so. The House committees built their onesided record by purporting to compel testimony and documents using nearly two dozen subpoenas"[ p] ursuant to the House of Representatives ' impeachment inquiry.'' But their only authority was Speaker Pelosi 's announcement at a press conference on September 24, 2019. As a result, the inquiry and the almost two dozen subpoenas issued before October 31, 2019 came before the House delegated any authority under its" sole Power of Impeachment'' to any committee .381 As OLC summarized: The Constitution vests the" sole Power of Impeachment'' in the House of Representatives. U.S. Const. art. I, ยง 2, cl. 5. For precisely that reason, the House itself must authorize an impeachment inquiry, as it has done in virtually every prior impeachment investigation in our Nation 's history, including every one involving a President. A congressional committee 's" right to exact testimony and to call for the production of documents'' is limited by the" controlling charter'' the committee has received from the House. United States v. Rumely, 345 U.S. 41, 44( 1953). Yet the House, by its rules, has authorized its committees to issue subpoenas only for matters within their legislative jurisdiction. Accordingly, no committee may undertake the momentous move from legislative oversight to impeachment without a delegation by the full House of such authority. Thus, as explained above, all subpoenas issued before the adoption of House Resolution 660 on October 31, 2019, purportedly to advance an" impeachment inquiry,'' were unauthorized and invalid.
B. House Democrats ' Impeachment Inquiry Deprived the President of the Fundamentally Fair Process Required by the Constitution. The next glaring defect in House Democrats ' impeachment proceedings was the wholly unfair procedures used to conduct the inquiry and compile the record. The Constitution requires that something as momentous as impeaching the President be done in a fundamentally fair way. Both the Due Process Clause and separation of powers principles require the House to provide the President with fair process and an opportunity to defend himself. Every modern presidential impeachment inquiry-- and every impeachment investigation for the last 150 years-- has expressly preserved the accused 's rights to a fundamentally fair process and ensured a balanced development of the evidence. These included the rights to cross-examine witnesses, to call witnesses, to be represented by counsel at all hearings, to make objections relating to the examination of witnesses or the admissibility of evidence, and to respond to evidence and testimony received. There is no reason to think that the Framers designed a mechanism for the profoundly disruptive act of impeaching the President that could be accomplished through any unfair and arbitrary means that the House might invent .383
1. The Text and Structure of the Constitution Demand that the House Ensure Fundamentally Fair Procedures in an Impeachment Inquiry.( a) The Due Process Clause Requires Fair Process.
The federal Due Process Clause broadly states that"[ n] o person shall... be deprived of life, liberty, or property, without due process of law'' and applies to every part of the federal government. In any proceeding that may lead to deprivation of a protected interest, it requires fair procedures commensurate with the interests at stake. There is no exemption from the clause for Congress. Thus, for example, the Supreme Court has held that due process protections apply to congressional investigations and provide witnesses in such investigations certain rights. Congress 's" power to investigate, broad as it may be, is also subject to recognized limitations''-- including those" found in the specific individual guarantees of the Bill of Rights.'' It would be anomalous if the Due Process Clause applied to investigations conducted under Congress 's legislative power-- which aim merely to gather information for legislation-- but somehow did not apply to impeachment investigations aimed at stripping individuals of their government positions. An impeachment investigation against the President potentially seeks to charge the President with" Treason, Bribery, or other high Crimes and Misdemeanors,'' and to strip the President of both( 1) his constitutionally granted right to" hold his Office during the Term of Four years,'' and( 2) his eligibility to" hold and enjoy any Office of honor, Trust or Profit under the United States,'' including to be re-elected as President. Those actions plainly involve deprivations of property and liberty interests protected by the Due Process Clause. As a threshold matter, it is settled law that even the lowest level" public employees who can be discharged only for cause have a constitutionally protected property interest in their tenure and can not be fired without due process.'' Nothing in the Constitution suggests that the impeachment process for addressing charges crossing the extraordinarily high threshold of" Treason, Bribery, or other high Crimes and Misdemeanors'' should involve less fair process than what the Constitution requires for every lower-level federal employee. The Constitution also explicitly gives the President( and every individual) a protected liberty interest in eligibility for election to the Office of President-- so long as the individual meets the qualifications established by the Constitution. Finally, every federal officer has a protected liberty interest in his reputation that would be directly impaired by impeachment charges. Impeachment by the House alone has an impact warranting the protections of due process. The House 's efforts to deprive the President of these constitutionally protected property and liberty interests necessarily implicate the Due Process Clause. The fact that impeachment is a constitutionally prescribed mechanism for removing federal officials from office does not make it any the less a mechanism affecting rights within the ordinary ambit of the clause. The gravity of the deprivation at stake in an impeachment-- especially a presidential impeachment-- buttresses the conclusion that some due process limitations must apply. It would be incompatible with the Framers ' understanding of the" delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs'' to think that they envisioned a system in which the House was free to devise any arbitrary or unfair mechanism it wished for impeaching individuals. The Supreme Court has described due process as" the protection of the individual against arbitrary action.'' There is no reason to think that protection was not intended to extend to impeachments. Similarly, the momentous impact of a presidential impeachment on the operation of the government suggests that the drafters of the Constitution expected the process to be governed by procedures that would ensure a fair assessment of evidence. The Bill of Rights guarantees due process, not out of an abstract, academic interest in process as an end in itself, but rather due to a belief, deeply rooted in the Anglo-American system of law, that procedural protections reduce the chances of erroneous decision-making. The Framers surely did not intend to approve a process for determining impeachments that would be wholly cut loose from all traditional mechanisms deemed essential in our legal heritage for discovering the truth. The sole judicial opinion to reach the question held that the Due Process Clause applies to impeachment proceedings. In Hastings v United States, the district court held that the Due Process Clause imposes an independent constitutional constraint on how the Senate exercises its" sole Power to try all Impeachments.'' In 1974, the Department of Justice suggested the same view, opining that"[ w] hether or not capable of judicial enforcement, due process standards would seem to be relevant to the manner of conducting an impeachment proceeding'' in the House-- including" the ability of the President to be represented at the inquiry of the House Committee, to cross-examine witnesses, and to offer witnesses and evidence,'' completely separate from the trial in the Senate.
( b) The Separation of Powers Requires Fair Process.
A proper respect for the head of a co-equal branch of the government also requires that the House use procedures that are not arbitrary and that are designed to permit the fair development of evidence. The Framers intended the impeachment power to be limited to" guard[] against the danger of persecution, from the prevalency of a factious spirit.'' The Constitution places the power of impeachment in the entire House precisely to ensure that a majority of the elected representatives of the people decide to move an impeachment forward. That design would be undermined if a House vote were shaped by an investigatory process so lopsided that it effectively empowered only one faction to develop evidence and foreclosed the ability of others-- including the accused-- to develop the facts. Rather than promoting deliberation by a majority of the people 's representatives, that approach would foster precisely the factionalism that the Framers foresaw as one of the greatest dangers in impeachments." By forcing the House and Senate to act as tribunals rather than merely as legislative bodies, the Framers infused the process with notions of due process to prevent impeachment from becoming a common tool of party politics.'' The need for fair process as a reflection of respect for the separation of powers is further buttressed by the unique role of the President in the constitutional structure. As explained above," presidential impeachments are qualitatively different from all others'' because they overturn a national election and risk grave disruption of the government. It is unthinkable that a process carrying such grave risks for the Nation should not be regulated by any constitutional limits. And the need for fair process is even more critical where, as here, impeachment turns on how the President has exercised authorities within his exclusive constitutional sphere. The President is" the constitutional representative of the United States in its dealings with foreign nations.'' Preserving the President 's ability to carry out this constitutional function requires that he be provided fair process and an opportunity to defend himself in any investigation into how he has exercised his authority to conduct foreign affairs. Otherwise, a partisan faction could smear the President with one-sided allegations with no opportunity for the President to respond. That would threaten to" undermine the President 's capacity'' for" effective diplomacy'' and" compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments.''
( c) The House 's Sole Power of Impeachment and Power to Determine Rules of Its Own Proceedings Do Not Eliminate the Constitutional Requirement of Due Process. Nothing in the House 's" sole Power of Impeachment'' and power to" determine the Rules of its Proceedings'' undermines the House 's obligation to use fundamentally fair procedures in impeachment. Those provisions simply mean that the House, and no other entity, has these powers. The Supreme Court has made clear that independent constitutional constraints limit otherwise plenary powers committed to one of the political branches. For example, even though"[ t] he[ C] onstitution empowers each house to determine its rules of proceedings,'' each House" may not by its rules ignore constitutional restraints or violate fundamental rights.'' Similarly, the doctrine of Executive Privilege, which is rooted in the separation of powers, constrains Congress 's exercise of its constitutionally assigned powers. A congressional committee can not simply demand access to information protected by Executive Privilege. Instead, if it can get access to such information at all, it must show that the information" is demonstrably critical to the responsible fulfillment of the Committee 's functions.'' The House could not evade that constraint by invoking its plenary authority to" determine the Rules of its Proceedings'' and adopting a rule allowing its committees to override Executive Privilege. Executive Privilege, which is itself grounded in the Constitution, similarly constrains the House 's ability to demand information pursuant to its" sole Power of Impeachment.'' Nixon v. United States, in any case, does not suggest otherwise. Nixon addressed whether the use of a committee to take evidence in a Senate impeachment trial violated the direction in the Constitution that the Senate shall have" sole Power to try all Impeachments.'' The Court held that the challenge presented a non-justiciable political question-- specifically, that"[ i] n the case before us, there is no separate provision of the Constitution that could be defeated by allowing the Senate final authority to determine the meaning of the word` try' in the Impeachment Trial Clause.'' But Nixon did not hold that all questions related to impeachment are non-justiciable422 or that there are no constitutional constraints on impeachment. To the contrary, the Court" agree[ d] with Nixon that courts possess power to review either legislative
executive action that transgresses identifiable textual limits,'' but merely concluded" that the word` try' in the Impeachment Trial Clause does not provide an identifiable textual limit on the authority which is committed to the Senate.'' More importantly, the justiciability of such questions is irrelevant. Constitutional obligations need not be enforceable by the judiciary to exist and constrain the political branches. As Madison explained," as the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it.'' Particularly in the impeachment context," we have to divest ourselves of the common misconception that constitutionality is discussable or determinable only in the courts, and that anything is constitutional which a court can not or will not overturn.... Congress 's responsibility to preserve the forms and the precepts of the Constitution is greater, rather than less, when the judicial forum is unavailable, as it sometimes must be.'' A holding that a particular question is a non-justiciable political question leaves that question to the political branches to use" nonjudicial methods of working out their differences'' and does not relieve the House of its constitutional obligation. 2. The House 's Consistent Practice of Providing Due Process in Impeachment Investigations for the Last 150 Years Confirms that the Constitution Requires Due Process. Historical practice provides a gloss on the requirements of the Constitution and strongly confirms that House impeachment investigations must adhere to basic forms of due process." In separation-of-powers cases, th[ e][ Supreme] Court has often put significant weight upon historical practice.'' As James Madison explained, it" was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms[ and] phrases necessarily used in such a charter... and that it might require a regular course of practice to liquidate[ and] settle the meaning of some of them.'' The Constitution" contemplates that practice will integrate the dispersed powers[ of the federal government] into a workable government.'' The Supreme Court has thus explained that historical practice reflects" an admissible view of the Constitution,'' and" consistent congressional practice requires our respect.'' Although constitutional requirements governing House impeachment proceedings may have been unsettled when the Constitution was adopted, by the 1870s consistent practice in the House( unbroken since then) gave meaning to the Constitution and settled the minimum procedures that must be afforded for a fair impeachment inquiry
The Framers, who debated impeachment with reference to the contemporaneous English impeachment of Warren Hastings, knew that" the House of Commons did hear the accused, and did permit him to produce testimony, before they voted an impeachment against him.'' And practice in the United States rapidly established that the accused in an impeachment must be allowed fair process. Although a few early impeachment investigations were ex parte, the House provided the accused with notice and an opportunity to be heard in the majority of cases starting as early as 1818. By Judge Peck 's impeachment in 1830, House Members, explicitly acknowledging that" it was obvious that it had not yet been settled by precedent,'' had an extensive debate to" settle[]''"[ t] he practice in cases of impeachments, so far as regards the proceedings in this House.'' Judge Peck had asked for the House to give him the ability to submit a" written exposition of the whole case, embracing both the facts and the law, and give him, also, process to call his witnesses from Missouri in support of his statements.'' The Judiciary Committee Chairman, James Buchanan, pointed out that" in the case of Warren Hastings'' in England," the House of Commons did hear the accused, and did permit him to produce testimony, before they voted an impeachment against him.'' Mr. Ingersoll explained that, in a prior impeachment inquiry against Vice President Calhoun," a friend of the Vice President had been permitted to appear, and represent him throughout the whole investigation,'' that"[ w] itnesses, also, had been examined on the part of the accused,'' and that" witnesses in favor of the Vice President had been examined, as well as against him, and that his representative had been allowed to present before the committee through every stage of the examination.'' He noted that"[ t] he committee at that time took some pains to ascertain what was the proper mode of proceeding, and they became satisfied that the party accused had, in these preliminary proceedings, a right to be thus heard.'' Mr. Pettis similarly concluded that"[ t] he request of the Judge is supported by the whole train of English decisions in cases of a like kind'' and that he should be given those rights here as well. The debate was thus settled in favor of due process rights for Judge Peck. By at least the 1870s, despite some unsettled practice in the interim, the House Judiciary Committee concluded that an opportunity for the" accused by himself and his counsel[ to] be heard'' had" become the established practice of the[ Judiciary Committee] in cases of impeachment'' and thus" deemed it due to the accused that he should have'' due process. That" established practice'' has been followed in every House impeachment investigation for the past 150 years and has provided a fixed meaning for the constitutional requirements governing House impeachment proceedings. The fact that the House has not followed a perfectly consistent practice dating all the way back to 1789, or that there were early outliers, is irrelevant. The House 's Parliamentarian acknowledges that while" the committee sometimes made inquiry ex parte'' in" earlier practice'' before the 1870s, the practice dating to the 1870s" is to permit the accused to testify, present witnesses, cross-examine witnesses, and be represented by counsel.'' Current House Democrats are already on record agreeing that due process protections apply in the House 's impeachment inquiries. Chairman Nadler has admitted that"[ t] he power of impeachment is a solemn responsibility, assigned to the House by the Constitution,'' and"[ t] hat responsibility demands a rigorous level of due process.'' He has rightly acknowledged, expressly in the context of impeachment, that"[ t] he Constitution guarantees the right of anyone who is accused of any wrongdoing, and fundamental fairness guarantees the right of anyone, to have the right to confront the witness against him.'' Rep. Hank Johnson-- a current Judiciary Committee member-- has similarly recognized that"[ t] here is a reason for a careful process when it comes to the most drastic action of impeachment; it is called due process.'' The two modern presidential impeachment inquiries also abundantly confirm the due process protections that apply to the accused in an impeachment inquiry. In fact, every President who has asked to participate in an impeachment investigation has been afforded extensive rights to do so. The House Judiciary Committee adopted explicit procedures to provide Presidents Clinton and Nixon with robust opportunities to defend themselves, including the rights" to attend all hearings, including any held in executive session'';" respond to evidence received and testimony adduced by the Committee'';" submit written requests'' for" the Committee to receive additional testimony or other evidence'';" question any witness called before the Committee''; and raise"[ o] bjections relating to the examination of witnesses, or to the admissibility of testimony and evidence.'' President Clinton was given access to the grand-jury evidence that underpinned the Starr report. The Committee also ensured that the minority could fully participate in the investigation and hearings, including by submitting evidence, objecting to witness examination and evidence, and exercising co-equal subpoena authority to issue a subpoena subject to overruling by the full Committee. Both Presidents were thus able to present robust defenses before the Committee. Indeed, President Clinton 's counsel gave an opening statement, the President called 14 expert witnesses over two days, and the President 's counsel also gave a closing statement and cross-examined the witnesses, including" question[ ing] Judge Starr for an hour.'' In this impeachment inquiry, the House Intelligence Committee fulfilled the investigatory role that the House Judiciary Committee filled in prior impeachments, and thus, these rights should have been available in the proceedings before the Intelligence Committee. 3. The President 's Counsel Must Be Allowed to Be Present at Hearings, See and Present Evidence, and Cross-Examine All Witnesses. The exact contours of the procedural protections required during an impeachment investigation must, of course, be adapted to the nature of that proceeding. The hallmarks of a full blown trial are not required, but procedures must reflect, at a minimum, basic protections that are essential for ensuring a fair process that is designed to get at the truth. The Supreme Court 's" precedents establish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them'' of a constitutionally protected interest. That means, at a minimum, that the evidence must be disclosed to the accused, and the accused must be permitted an opportunity to test and respond to the evidence-- particularly through"[ t] he rights to confront and cross-examine witnesses,'' which" have long been recognized as essential to due process.'' For 250 years," the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.'' Cross-examination is" the greatest legal engine ever invented for the discovery of truth,''" shed[ ding] light on the witness' perception, memory and narration'' and" expos[ ing] inconsistencies, incompleteness, and inaccuracies in his testimony.'' Thus,"[ i] n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.'' It is unthinkable that the Framers, steeped in the history of Anglo-American jurisprudence, would create a system that would allow the Chief Executive and Commander-in-Chief of the armed forces to be impeached based on a process that developed evidence without providing any of the elementary procedures that the common law developed over centuries for ensuring the proper testing of evidence in an adversarial process. The most persuasive source indicating what the Constitution requires in an impeachment investigation is the record of the House 's own past practice, as explained above. The due process rights consistently afforded by the House to the accused for the past 150 years have generally included the right to appear and to be represented by counsel at all hearings, to have access to and respond to the evidence, to submit evidence and testimony, to question witnesses and object to evidence, and to make opening statements and closing arguments. Chairman Nadler, Chairman Schiff, other House Democrats, and then-Representative Schumer have repeatedly confirmed these procedural requirements. 4. The House Impeachment Inquiry Failed to Provide the Due Process Demanded by the Constitution and Generated a Fundamentally Skewed Record that Can not Be Relied Upon in the Senate. Despite clear precedent mandating due process for the accused in any impeachment inquiry-- and especially in a presidential impeachment inquiry-- House Democrats concocted a wholly unprecedented three-stage process in this case that denied the President fair process at every step of the way. Indeed, because the process started without any actual authorization from the House, committees initially made up the process as they went along. In the end, all three phases of the House 's inquiry failed to afford the President even the most rudimentary procedures demanded by the Constitution, fundamental fairness, and over 150 years of precedent.
( a) Phase I: Secret Hearings in the Basement Bunker The first phase involved secret proceedings in a basement bunker where the President was not given any rights at all. This phase consisted of depositions taken by joint hearings of the House Permanent Select Committee on Intelligence( HPSCI), the House Committee on Foreign Affairs, and the House Committee on Oversight and Reform. To ensure there would be no transparency for the President or the American people, depositions were conducted in a facility designed for securing highly classified information-- even though all of the depositions were" conducted entirely at the unclassified level.'' The President was denied any opportunity to participate. He was denied the right to have counsel present. He was denied the right to cross-examine witnesses, call witnesses, and present evidence. He was even denied the right to have Executive Branch counsel present during depositions of Executive Branch officials, thereby undermining any ability for the President to protect longstanding constitutional privileges over Executive Branch information. Members in the Republican minority on the investigating committees could not provide a counterweight to remedy the lack of process for the President. They were denied subpoena authority to call witnesses, and they were blocked even from asking questions that would ensure a balanced development of the facts. For example, Chairman Schiff repeatedly shut down any line of questioning that would have exposed personal self-interest, prejudice, or bias of the whistleblower. Finally, House Democrats made clear that the proceedings ' secrecy was just a partisan stratagem. Daily leaks describing purported testimony of witnesses were calculated to present the public with a distorted view of what was taking place behind closed doors and further the narrative that the President had done something wrong. House Democrats ' assertions that the basement Star Chamber hearings were justified because the House" serves in a role analogous to a grand jury and prosecutor'' are baseless. The House 's unbroken practice of providing due process over the last 150 years confirms that the House is not merely a grand jury. Chairman Nadler, other House Democrats, and thenRepresentative Schumer rejected such analogies as a" cramped view of the appropriate role of the House[ that] finds no support in the Constitution and is completely contrary to the great weight of historical precedent.'' The Judiciary Committee 's own impeachment consultant and staff have rejected"[ g] rand jury analogies'' as" badly misplaced when it comes to impeachment.'' More importantly, the narrow rationales that justify limiting procedural protections in grand juries simply do not apply here. For example, it is primarily grand jury secrecy-- not the preliminary nature of grand jury proceedings in developing the basis for a charge-- that" justif[ ies] the limited procedural safeguards available to... persons under investigation.'' That secrecy, in turn, promotes two primary objectives. It allows an investigation to proceed without notice to those under suspicion and thus may further the investigation. In addition, a" cornerstone'' of grand jury secrecy is the policy of protecting the public reputations of those who may be investigated but never charged. Neither rationale applied to Chairman Schiff 's proceedings for a straightforward reason: in relevant respects, the proceedings were entirely public. Chairman Schiff made no secret that the target of his investigation was President Trump. He and his colleagues held news conferences to announce that fact, and they leaked information intended to damage the President from their otherwise secret hearings. In addition, the exact witness list with the dates, times, and places of witness testimony were announced to the world long in advance of each hearing. And witnesses ' opening statements, as well as slanted summaries of their testimony, were selectively leaked to the press in real time. The entire direction of the investigation, as well as specific testimony, was thus telegraphed to the world. These acts would have violated federal criminal law if grand jury rules had applied. It is also well settled that the one-sided procedures employed by Chairman Schiff were not designed to be the best mechanism for getting at the truth. Grand jury procedures have never been justified on the theory that they are well adapted for uncovering ultimate facts. To the contrary, as explained above, the Anglo-American legal system has long recognized that" adversarial testing,'' particularly cross-examination," will ultimately advance the public interest in truth and fairness.'' Those essential procedural rights are no less necessary in impeachment proceedings unless one adopts the counterintuitive assumption that the Framers did not intend an impeachment inquiry to use any of the familiar mechanisms developed over centuries in the common law to get at the truth.
( b) Phase II: The Public, Ex Parte Show Trial Before HPSCI After four weeks of secret-- and wholly unauthorized-- hearings, House Democrats finally introduced a resolution to have the House authorize an impeachment inquiry and to set procedures for it. House Resolution 660, however, merely compounded the fundamentally unfair procedures from the secret cellar hearings by subjecting the President to a second round of ex parte hearings before Chairman Schiff 's committee. The only difference was that this second round took place in public. Thus, after screening witnesses ' testimony behind closed doors, Chairman Schiff moved on to a true show trial-- a stage-managed inquisition in front of the cameras, choreographed with pre-screened testimony to build a narrative aiming at a pre-determined result. The President was still denied any opportunity to participate, to cross-examine witnesses, to present witnesses or evidence, or to protect constitutionally privileged Executive Branch information by having agency counsel present. All of this was directly contrary to the rules that had governed the Nixon and Clinton impeachment inquiries. There, the President had been allowed to cross-examine any fact witnesses called by the committee. In addition, the President had been permitted to call witnesses, and the ranking member on the investigating committee had been permitted co-equal subpoena authority.
( c) Phase III: The Ignominious Rubber Stamp from the Judiciary Committee The House Committee on the Judiciary simply rubber-stamped the ex parte record compiled by Chairman Schiff and, per the Speaker 's direction, relied on it to draft articles of impeachment. Under House Resolution 660, it was only during this third phase that the President was even nominally allowed a chance to participate and some rudimentary elements of process. With fact-finding already over, there was no meaningful way to allow the President to use those rights for a balanced factual inquiry. Instead, the Judiciary Committee doubled down on using the skewed, one-sided record developed by Chairman Schiff. Thus, the only procedural protections that House Resolution 660 provided the President were inadequate from the outset because they came far too late in the proceedings to be effective. Procedural protections such as crossexamination are essential as the factual record is being developed. Providing process only after the record has been compiled and after charges are being drafted can do little to remedy the distortions built into the record. Here, most witnesses testified twice under oath on the same topics-- once in a secret rehearsal to preview their testimony, and again in public-- without any cross-examination by the President 's counsel. Locking witnesses into their stories by having them testify twice vastly reduces the benefit of cross-examination. Any deviation from prior testimony potentially exposes a witness to a double perjury charge, and, worse, the prior ex parte testimony becomes fixed in each witness 's mind in place of actual memory. While it would have been next to impossible for a proceeding before the Judiciary Committee to remedy the defects in the prior two rounds of hearings, Chairman Nadler had no interest in even attempting to do that. His only interest was following marching orders to report articles of impeachment to the House so they could be voted on before Christmas. Thus, he repeatedly provided vague and inadequate notice about what proceedings were planned until he ultimately informed the President that he had no plans for any evidentiary hearings at all. For example, on November 26, 2019-- two days before Thanksgiving-- Chairman Nadler informed the President and the Ranking Member that the Judiciary Committee would hold a hearing on December 4 vaguely limited to" the historical and constitutional basis of impeachment.'' The Chairman provided no further information about the hearing, including the identities of the witnesses, but nonetheless required the President to indicate whether he wished to participate by Sunday, December 1. Every aspect of the planning for this hearing departed from the Clinton and Nixon precedents. The Committee afforded the President no scheduling input, no meaningful information about the hearing, and so little time to prepare that it effectively denied the Administration a fair opportunity to participate. The Committee ultimately announced the identities of the witnesses less than two days before the hearing. For a similar hearing with scholars in the Clinton impeachment, the Committee provided two-and-a-half weeks ' notice to prepare and scheduled the hearing on a date suggested by the President 's attorneys. President Trump understandably declined to participate in that biased constitutional law seminar because he could not" fairly be expected to participate in a hearing while the witnesses are yet to be named and while it remains unclear whether the Judiciary Committee will afford the President a fair process through additional hearings.'' Meanwhile, in a separate letter on November 29, 2019, Chairman Nadler asked the President to specify, by December 6, how he would participate in future undefined" proceedings'' and which" privileges'' in the Judiciary Committee 's Impeachment Procedures the President 's counsel would seek to exercise. At the same time, he gave no indication as to what these" proceedings'' would involve, what subjects they would address, whether witnesses would be heard( or who they would be), or when any hearings would be held. To inform the President 's decision, the President 's counsel asked Chairman Nadler for information about the" scope and nature of the proceedings'' he planned, including topics of hearings, whether he intended" to allow for fact witnesses to be called,'' and whether he would allow" the President 's counsel the right to cross examine fact witnesses.'' The President 's counsel even offered to meet with Chairman Nadler to discuss a plan for upcoming hearings. All to no avail-- Chairman Nadler did not even bother to respond. And the Judiciary Committee continued to hide the ball. Throughout the week of December 2, the President 's counsel were in contact with Committee counsel trying to get answers concerning what hearings were planned, so that the President could determine whether and how to participate. But all that Committee staff were authorized to convey was:( i) a hearing on an unknown topic had been publicly announced for December 9;( ii) before that hearing, the Committee might be issuing two additional reports( one based on the December 4 constitutional law seminar and one dredging up unspecified aspects of Special Counsel Mueller 's report); and( iii) they would not have an answer to any other questions about the subjects of the December 9 hearing or whether any other hearings would be scheduled until after the close of business on Thursday, December 5. On the morning of December 5, Speaker Pelosi instructed the Judiciary Committee to begin drafting articles of impeachment before the Committee had received any presentation on the HPSCI report, heard any fact witness, or heard a single word from the President in his defense. Later that day, Committee counsel informed the President 's counsel that-- other than a report addressing the meaning of" high Crimes and Misdemeanors'' based on the December 4 constitutional law seminar and other than a hearing on December 9 involving a presentation of the HPSCI majority and minority reports solely by staff-- there were no immediate plans to issue other reports or have any other hearings. Meanwhile, Chairman Nadler was also playing hide-the-ball with the minority members of his own Committee. The Committee 's Ranking Member, Doug Collins, sent at least seven letters to Chairman Nadler trying to find out about the process the Committee would follow and requesting specific rights to ensure a balanced presentation of the law and facts, including requesting witnesses. Chairman Nadler simply ignored them. He offered only an after-the-fact response that denied his request for witnesses in part on the misleading claim that" the President is not requesting any witnesses,'' when it was Chairman Nadler who had refused to commit to allowing the President to call witnesses in the first place. As a backdrop to all of this, Chairman Nadler had threatened to invoke the unprecedented provision of the Committee 's Impeachment Inquiry Procedures Pursuant to House Resolution 660 that allowed him to deny the President any due process rights if the President continued to assert longstanding privileges and immunities to protect Executive Branch information and to challenge the validity of the investigating committees ' subpoenas. This approach also departed from all precedent in the Clinton and Nixon proceedings. Even though both Presidents had asserted numerous privileges, the Judiciary Committee never contemplated that offering the opportunity to present a defense and to have a fair hearing should be conditioned on forcing the President to abandon the longstanding constitutional rights and privileges of the Executive Branch. The Supreme Court has already addressed such Catch-22 choices and has made clear that it is" intolerable that one constitutional right should have to be surrendered in order to assert another.'' Conditioning access to basic procedural rights on an agreement to waive other fundamental rights is the same as denying procedural rights altogether. As a result, by the December 6 deadline, the President had been left with no meaningful choice at all. The Committee was already under instructions to draft articles of impeachment before hearing any evidence; Chairman Nadler had kept the President in the dark until the last minute about how and when the Committee would proceed; and Committee counsel had finally confirmed that the Committee 's plan was to hear solely a staff presentation of the HPSCI report and not to hold any other hearings. It was abundantly clear that, if the President asked to present or cross examine any witnesses, any future hearings would merely be window-dressing designed to place a veneer of fair process on a stage-managed show trial already hurtling toward a preordained result. The President would not be given any meaningful opportunity to question fact witnesses or otherwise respond to the one-sided factual record transmitted by HPSCI. The Judiciary Committee 's assertion that the President" could have had his counsel make a presentation of evidence or request that other witnesses be called'' is thus entirely disingenuous. Under those circumstances, the President determined that he would not condone House Democrats ' violations of due process-- and that he would not lend legitimacy to their unprecedented procedures-- by participating in their show trial. Chairman Nadler ultimately refused to allow the Committee to hear from a single fact witness or hear any evidence first-hand. He also blatantly violated House Rules by refusing to allow the minority to have a minority hearing day. Instead, the Judiciary Committee simply relied on the ex parte evidence gathered by Chairman Schiff 's show trial with no procedural protections at all. And there could be no clearer admission that the evidence simply did not matter than Speaker Pelosi 's instruction to begin drafting articles of impeachment before the Committee had even heard any evidence whatsoever. All of this conduct highlights rank hypocrisy by Chairman Nadler, who, during the Clinton impeachment, decried the fact that there had been" no witness called in front of this committee against the President'' and declared it" a failure of the Chairman of this committee that we are going to consider voting impeachment, having heard no witnesses whatsoever against the President.'' Then, Chairman Nadler argued that the Judiciary Committee can not simply receive a report compiled by another entity( there, the Independent Counsel) and proceed to judgment. That, in his words," would be to say that the role of this committee of the House is a mere transmission belt or rubber stamp,'' and would" conclude the inquiry expeditiously, but not fairly, and not without trashing the Constitution and every principle of due process and fundamental fairness that we have held sacred since the Magna Carta.'' House Democrats on the Judiciary Committee made the same point just a few years ago in 2016:"[ i] n all modern cases, the Committee has conducted an independent, formal investigation into the charges underlying a resolution of impeachment-- again, even when other authorities and other congressional committees have already investigated the underlying issue.'' The House 's constitutionally deficient proceedings have so distorted the factual record compiled in the House that it can not constitutionally be relied upon for the Senate to reach any verdict other than acquittal. A. The House 's Inquiry Was Irredeemably Defective Because It Was Presided Over by an Interested Fact Witness Who Lied About Contact with the Whistleblower Before the Complaint Was Filed.
The House 's entire factual investigation was carefully orchestrated-- and restricted-- by an interested fact witness: Chairman Schiff. His repeated falsehoods about the President leave him with no credibility whatsoever. In March 2017, Chairman Schiff lied, announcing that he already had evidence that the Trump campaign colluded with Russia. That was proved false when the Mueller Report was released and the entire Russian hoax Chairman Schiff had been peddling was disproved. In this proceeding, Chairman Schiff violated basic fairness by overseeing and prosecuting the proceedings while secretly being a witness in the case. Before public release of the whistleblower complaint, when asked whether he had" heard from the whistleblower,'' Chairman Schiff falsely denied having" heard from the whistleblower,'' saying:" We have not spoken directly with the whistleblower. We would like to.... But yes, we would love to talk directly with the whistleblower.'' As multiple media outlets concluded, that statement was" flat-out false''-- a"[ w] hopper'' of a lie that earned" four Pinnochios'' from The Washington Post-- because it" wrongly implied the committee had not been contacted'' by the whistleblower before the complaint was filed. Subsequent reporting showed that Chairman Schiff 's staff had not only had contact with the whistleblower, but apparently played some still-unverified role in advising the whistleblower before the complaint was filed. And Chairman Schiff began the hearings in this matter by lying once again and reading a fabricated version of the President 's telephone conversation with President Zelenskyy to the American people. Given the role that Chairman Schiff and his staff apparently played in advising the whistleblower, Chairman Schiff made himself a fact witness in these proceedings. The American people understand that Chairman Schiff can not covertly assist with the submission of a complaint, mislead the public about his involvement, and then pretend to be a neutral" investigator.'' No wonder Chairman Schiff repeatedly denied requests to subpoena the whistleblower and shut down any questions that he feared might identify the whistleblower. Questioning the whistleblower would have exposed before the American people the role Chairman Schiff and his staff had in concocting the very complaint they purported to be investigating. D. The Senate May Not Rely on a Factual Record Derived from a Procedurally Deficient House Impeachment Inquiry. The Senate may not rely on a corrupted factual record derived from constitutionally deficient proceedings to support a conviction of the President of the United States. Nor is it the Senate 's role to attempt to remedy the House 's errors by providing a" do-over'' to develop the record anew in the Senate. In the courts, comparable fundamental errors underpinning the foundations of a case would require throwing the case out. The denial of" basic protections'' of due process" necessarily render[ s]'' a proceeding" fundamentally unfair,'' precluding it from" reliably serv[ ing] its function as a vehicle for determination of guilt or innocence.'' A" proceeding infected with fundamental procedural error, like a void judicial judgment, is a legal nullity.'' That is why, for example, criminal indictments may not proceed to trial when they result from" fundamental'' errors that cause" the structural protections of the grand jury[ to] have been so compromised as to render the proceedings fundamentally unfair.'' The same principles should apply in the impeachment trial context. The Senate can not rely on a record developed in a hopelessly defective House proceeding to convict the President. E. House Democrats Used an Unprecedented and Unfair Process Because Their Goal to Impeach at Any Cost Had Nothing To Do with Finding the Truth. House Democrats ' impeachment inquiry was never a quest for the truth. Instead it was an inquisition in pursuit of an offense to justify a pre-ordained outcome-- impeaching President Trump by any means necessary. The procedural protections that the House has afforded to the accused in every impeachment for the last 150 years were incompatible with that agenda. Ensuring a fair process that uses time-tested methods for getting at the truth-- like adversarial cross examination of witnesses by counsel for the accused-- takes time and it also risks undermining the accusers ' preferred version of the facts. But House Democrats had no time. By September 2019, when the President released the transcript of his telephone call with President Zelenskyy, the 2020 campaign for the presidency was already well underway, and they needed a fast and tightly controlled process that would yield their political goal: impeachment by Christmas. In fact, House Democrats have been on a crusade to impeach the President since the moment he took office three years ago. As Speaker Pelosi recently confirmed, her party 's quest for impeachment had" been going on for 22 months...[ t] wo and a half years, actually.'' The moment that the President was sworn in, two liberal advocacy groups launched a campaign to impeach him. The current proceedings began with a complaint prepared with the assistance a lawyer who declared in 2017 that he was already planning to use" impeachment'' to effect a" coup.'' The first resolution proposing articles of impeachment against President Trump was filed before he had been in office for six months. As soon as Democrats gained control of the House in the 2018 midterm elections, they made clear that they would stop at nothing to impeach the President. Rep. Rashida Tlaib, for example, announced in January 2019:"[ W] e 're going to go in there and we 're gon na impeach the motherf **** r.'' Over the past three years, House Democrats have filed at least eight resolutions to impeach the President, alleging a vast range of preposterous purported offenses. They have repeatedly charged the President with obstruction of justice in connection with the Mueller investigation-- an allegation that the Department of Justice resoundingly rejected. One resolution sought to impeach the President for protecting national security by restricting U.S. entry by nationals of eight countries-- an action upheld by the Supreme Court. Another tried to impeach the President for publishing disparaging about Democrat House members in response to their own attacks on the President. Still another gathered a hodge-podge of absurd charges, including failing to nominate persons to fill vacancies and insulting the press. In this case, House Democrats ran the fastest presidential impeachment fact-finding on record. They raced through their entire process in less than three months from the beginning of their fact-finding investigation on September 24, 2019 to the adoption of articles on December 18-- meeting their deadline of impeachment by Christmas. That rushed three-month process stands apart from every prior presidential impeachment-- the fastest of which took place after a fact-finding period nearly four times as long. Independent Counsel Ken Starr received authorization to investigate the charges that led to President Clinton 's impeachment in January 1998, almost a full year before the House impeached President Clinton in December 1998. Congress began investigating President Nixon 's conduct in February 1973, more than one year before July 1974, when the House Judiciary Committee voted to recommend articles of impeachment. The investigation into President Johnson also exceeded 12 months. Except for a two-month break between a vote rejecting articles of impeachment in 1867 and the authorization of a second impeachment inquiry, President Johnson 's impeachment was investigated over 14 months from January 1867 to the adoption of articles of impeachment in March 1868. The two inquiries were closely related, and one article of impeachment was carried over from the first impeachment inquiry. The Democrats ' need for speed only underscores that, unlike prior impeachments, these proceedings were never about conducting a serious inquiry into the truth. Although they tried everything, Democrats pinned their impeachment dreams primarily on the Mueller investigation and their dogmatic faith in the myth that President Trump-- or at least his campaign-- was somehow in league with Russia. After$ 32 million, 2,800 subpoenas, nearly 500 search warrants, 230 orders for communications records, and 500 witness interviews, that inquisition disproved the myth of collusion between the President or his campaign and Russia. As the Mueller Report informed the public, Special Counsel Mueller and his team of investigators and FBI agents could not find any evidence of collusion between the Trump Campaign and the Russian government. While the Mueller investigation was pending, though, Chairman Schiff flatly lied to the American people, telling them that he was privy to ``` more than circumstantial evidence' that the President 's associates colluded with Russia.'' He played up the Mueller investigation, promising that it would show wrongdoing" of a size and scope probably beyond Watergate.'' The damage caused by Democrats ' Russian collusion delusion stretches far beyond anything directly attributable to the Mueller investigation. The Mueller investigation itself was triggered by an FBI investigation, known as Crossfire Hurricane, that involved gross abuses of FBI investigative tools-- including FISA orders and undercover agents. The FBI abused its extraordinary authorities to spy on American citizens and a major-party presidential campaign. According to a report from the Inspector General of the Department of Justice, these abuses included" multiple instances'' of factual assertions to the FISA court that were knowingly" inaccurate, incomplete, or unsupported by appropriate documentation''-- in other words, lies to the FISA court. One FBI official, who openly advocated for" resistance'' against the President, even fabricated evidence to persuade the FISA court to maintain surveillance on an American citizen connected with the Trump Campaign. Tellingly, the Inspector General could not rule out the possibility that Crossfire Hurricane was corrupted by political bias, because the FBI could not provide" satisfactory explanations'' for the extraordinary litany of errors and abuses that plagued the investigation from its inception-- all of which indicated bias against the President. Despite all of this, House Democrats have refused to accept the conclusions of the Mueller Report. They held hearings and issued subpoenas hoping to uncover collusion where Mueller had found none. Failing that, they tried to keep the impeachment flame alive by manufacturing an obstruction charge-- even though the Department of Justice had already rejected such a claim. They embarked on new fishing expeditions, such as demanding the President 's tax returns, investigating the routine Executive Branch practice of granting case-by-case exceptions to the President 's voluntarily undertaken ethics guidelines, and the costs of the July 4" Salute to America'' event-- all in the hope that rummaging through those records might give them some new basis for attacking the President. Democrats have been fixated on impeachment and Russia for the past three years for two reasons. First, they have never accepted the results of the 2016 election and have been consumed by an insatiable need to justify their continued belief that President Trump could not" really'' have won. Long before votes had been cast, Democrats had taken it as an article of faith that Hillary Clinton would be the next President. House Democrats ' impeachment and Russia obsessions thus stem from a pair of false beliefs held as dogma: that Donald Trump should not be President and that he is President only by virtue of foreign interference. The second reason for Democrats ' fixations is that they desperately need an illegitimate boost for their candidate in the 2020 election, whoever that may be. Put simply, Democrats have no response to the President 's record of achievement in restoring growth and prosperity to the American economy, rebuilding America 's military, and confronting America 's adversaries abroad. They have no policies and no ideas to compete against that. Instead, they are held hostage by a radical left wing that has foisted on the party a radical agenda of socialism at home and appeasement abroad that Democrat leaders know the American people will never accept. For Democrats, President Trump 's record of success made impeachment an electoral imperative. As Congressman Al Green explained it:" if we do n't impeach the[ P] resident, he will get reelected.'' The result of House Democrats ' relentless pursuit of their obsessions-- and their willingness to sacrifice every precedent, every principle, and every procedural right standing in their way-- is exactly what the Framers warned against: a wholly partisan impeachment. The Articles of Impeachment now before the Senate were adopted without a single Republican vote. Indeed, the only bipartisan aspect of these articles was congressional opposition to their adoption. Democrats used to recognize that the momentous act of overturning a national election by impeaching a President should never take place on a partisan basis, and that impeachment should not be used as a partisan tool in electoral politics. As Chairman Nadler explained in 1998: The effect of impeachment is to overturn the popular will of the voters. We 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, and we must not do so without an overwhelming consensus of the American people. There must never be a narrowly voted impeachment or an impeachment supported by one of our major political parties and opposed by another. Such an impeachment will produce divisiveness and bitterness in our politics for years to come, and will call into question the very legitimacy of our political institutions. Senator Leahy agreed:" A partisan impeachment can not command the respect of the American people. It is no more valid than a stolen election.'' Chairman Schiff likewise recognized that a partisan impeachment would be" doomed for failure,'' adding that there was" little to be gained by putting the country through that kind of wrenching experience.'' Earlier last year even Speaker Pelosi acknowledged that," before I think we should go down any impeachment path,'' it" would have to be so clearly bipartisan in terms of acceptance of it.'' Now, however, House Democrats have completely abandoned those principles and placed before the Senate Articles of Impeachment that are partisan to their core. In their rush to impeach the President before Christmas, Democrats allowed speed and political expediency to conquer fairness and truth. As Professor Turley explained, this impeachment" stand[ s] out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president.'' And as the vote closed, House Democrats could contain their glee. Several Democrats clapped; others cheered; and still others raised exclamations of joy on the floor of the House of Representatives-- until the Speaker shamed them into silence. The Framers foresaw clearly the possibility of such an improper, partisan use of impeachment. As Hamilton recognized, impeachment could be a powerful tool in the hands of determined" pre-existing factions.'' The Framers fully recognized that" the persecution of an intemperate or designing majority in the House of Representatives'' was a real danger. That is why they chose the Senate as the tribunal for trying impeachments. Further removed from the politics of the day than the House, they believed the Senate could mitigate the" danger that the decision'' to remove a President would be based on the" comparative strength of parties'' rather" than by the real demonstrations of innocence or guilt.'' The Senate would thus" guard[] against the danger of persecution, from the prevalency of a factious spirit'' in the House.F It now falls to the Senate to fulfill the role of guardian that the Framers envisioned and to reject these wholly insubstantial Articles of Impeachment that have been propelled forward by nothing other than partisan enmity toward the President