Mr. Chief justice, senators, majority leader McConnell, minority leader Schumer. The other day as we opened our presentation, I touched on two areas, some of the due process violations that characterize the proceedings in the house and some of the fundamental mischaracterizations and errors that underpin House Democrats charge of obstruction. And today I’ll complete the presentation on those points to round out some of the fundamentally unfair procedure that was used in the house and its implications for this proceeding before you now. And also address in detail the purported charges of obstruction in the second article of impeachment. On due process, there are three fundamental errors that infected the proceedings in the house. The first is, as I explained on Saturday, the impeachment inquiry was unauthorized and unconstitutional from the beginning. No committee of the house has the power to launch an inquiry under the house’s impeachment power unless the house itself has taken a vote to give that authority to a committee.
I noted that in cases such as Rumely versus the United States and the United States versus Watkins, the Supreme Court has set out these principles, general principles derived from the constitution, which assigns authority to each chamber of the legislative branch, to the house and to the Senate, but not to individual members or to subcommittees. For an authority of the house to be transferred to a committee. The house has to vote on that. The DC circuit has distilled the principles from those cases. This way, to issue a valid subpoena, a committee or subcommittee must conform strictly to the resolution establishing its investigatory powers. That was the problem here. There was no such resolution. There was no vote from the house authorizing the issuance of subpoenas under the impeachment power. So this inquiry began with nearly two dozen invalid subpoenas. The speaker had the house proceed on nothing more than a press conference in which she purported to authorize committees to begin an impeachment power under. The constitution she lacked that authority.
As the chairman of the house judiciary committee during the Nixon impeachment inquiry pointed out, Peter Rodino explained that such a resolution from the house has always been passed by the house. It is a necessary step if we are to meet our obligations. So we began this process with unauthorized subpoenas that imposed no compulsion on the executive branch to respond with documents or witnesses and I’ll be coming back to that point, that threshold foundational point when we get to the obstruction charge.
The second fundamental due process error is it the house Democrats denied the President basic due process required by the constitution and by fundamental principles of fairness in the procedures that they used for the hearings. And I’m not going to go back in detail over those as we heard from Judge Starr, the House Democrats essentially abandoned the principles that have governed impeachment inquiries in the house for over 150 years. And I’ll touch on just a few points and respond to a couple of points that the house managers have made. The first is that in denying due process rights, the house proceedings were a huge reversal from the positions House Democrats themselves have taken in the recent past, particularly in the Clinton impeachment proceeding, and I believe we have manager Nadler’s description of what was required.
Manager Nadler was explaining that due process requires at a minimum notice of the charges against you, the right to be represented by counsel, the right to cross examine witnesses against you and the right to present evidence. All of those rights were denied to the President. Now one of the responses that the managers have made to the defect that we pointed out in the secret proceedings where manager Schiff began these hearings in the basement bunker is that well, that was really just best investigative practice. They were operating like a grand jury. Don’t be fooled by that, those hearings operated nothing like a grand jury. A grand jury has secrecy primarily for two reasons to protect the direction of the investigation so others won’t know what witnesses are being called in and what they’re saying. To keep that secret for the prosecutor to be able to keep developing the evidence and to protect the accused because the accused might not ever be indicted.
In this case, all of that information was made public every day. The House Democrats destroyed any analogy, any legitimate analogy to a grand jury because that was all public. They made no secret that the President was the target. They issued vile calumnies about him every day, and they didn’t keep the direction of their investigation secret. Their witness lists were published daily. The direction of the investigation was open and the testimony that took place was selectively leaked to a compliant media to establish a false narrative about the President. If that sort of conduct had occurred in a real grand jury, that would’ve been a criminal violation. Prosecutors can’t do that.
Under rule six(e), the federal criminal rules, it’s a criminal offense to be leaking what it takes place in a grand jury and also the grand jury explanation provides no rationale whatsoever for the second round of hearings. Remember after the basement bunker, after the secret hearings where the testimony was pre-screened, then the same witnesses who had already been deposed were put on in a public hearing where the President was still excluded. Ask yourself what was the reason for that? And every prior presidential impeachment in the modern era where there had been public hearings, the President has been represented by counsel and could cross examine witnesses. Why did there have to be public televised hearings where the President was excluded? That was nothing more than a show trial.
Now, I also addressed the other day the house manager’s contention that they had offered the President due process that when things reach the third round of hearings in front of the house judiciary committee, that manager Nadler offered the President due process and I explained why that was illusory. There was no genuine offer there because before any hearings began other than the law professors seminar in December 4th. The speaker had already determined the outcome, already said they were going to be articles of impeachment and the judiciary committee had informed the counsel’s office that they had no plans to call any fact witnesses or have any factual hearings whatsoever. It was all done, it was locked in, it was baked. And there was something else hanging over that when they had offered purportedly to allow the President some due process rights and that was a special provision in the rules for the house judiciary committee proceedings.
Also unprecedented that allowed the house judiciary committee to deny the President any due process rights at all if he continued to refuse to turn over documents or not allow witnesses to testify. So that if the President didn’t give up his privileges and immunities that he had been asserting over executive branch confidentiality interests. If he didn’t comply with what the House Democrats wanted, then it was up to chairman Nadler potentially to say no rights at all. And there’s a term for that in the law. It’s called an unconstitutional condition. You can’t condition someone’s exercise of some rights on their surrendering other constitutional rights. You can’t say, will let you have due process in this way if you waive your constitutional privileges on another issue. The last point I’ll make about due is this. It’s important to remember the due process is enshrined in the bill of rights for a reason. It’s not that process is just an end in itself.
Instead, it’s a deep seated belief in our legal tradition that fair process is essential for accurate decision making. Cross- examination of witnesses in particular is one of the most important procedural protections for any American. The Supreme Court has explained that for over 250 years, our legal tradition has recognized cross examination is the greatest legal engine ever discovered for the discovery ever invented for the discovery of truth. So why did House Democrats jettison every precedent and every principle of due-process in the way they devise these hearing procedures? Why did they devise a process that kept the President locked out of any hearings for 71 of the 78 days of the so-called investigation? I would submit because the process was never about finding the truth. The process was about achieving a predetermined outcome on a timetable and having it done by Christmas and that is what they achieved.
Now, the third fundamental due process error is that the whole foundation of these proceedings was also tainted beyond repair because an interested fact witness supervised and limited the course of the factual discovery. The course of the hearings and I explained the other day that manager Schiff had a reason potentially because of his office’s contact with the so called whistleblower and what was discussed and how the complaint was framed, which all remains secret to limit inquiry into that which is relevant. The whistleblower began this whole process, his bias, his motive, why he was doing it, what his sources were.
That’s relevant to understand what generated this whole process, but there was no inquiry into that. So what conclusion does this all lead to? All of these due process errors that have infected the proceeding up to now. I think it’s important to recognize the right conclusion is not that this body, this chamber should try to redo everything to start bringing in new evidence, bring in witnesses because the President wasn’t allowed witnesses below and redoing the whole process. And that’s where a couple of reasons. One is, first, as my colleagues have demonstrated, despite the one sided unfair process in the house, the record that the House Democrats collected through that process already shows that the President did nothing wrong. It already exonerates the President. But the second and more important reason is because of the institutional implications it would have for this chamber.
Whatever precedent is set, whatever this body accepts now as a permissible way to bring an impeachment proceeding and to bring it to this chamber becomes the new normal. And if the new normal is going to be that there can be an impeachment proceeding in the house that violates due process that doesn’t provide the President or another official being impeached due process rights that fails to conduct a thorough investigation that doesn’t come here with the facts established that then this body should become the investigatory body and start redoing what the house didn’t do and finding new witnesses and doing things over and over getting new evidence. Then that’s going to be the new normal and that will be the way that this chamber has to function and there’ll be a lot more impeachments coming because it’s a lot easier to do an impeachment if you don’t have to follow due process and can come here and expect the Senate to do the work that the house didn’t do.
I’d submit that is not the constitutional function of this chamber sitting as a quarter of impeachment and this chamber should not put its the imprimatur on a process in the house that would force this chamber to take on that role. Now I’ll move on to the charge of obstruction in the second article of impeachment. Accepting that article of impeachment would fundamentally damage the separation of powers under the constitution by permanently altering the relationship between the executive and the legislative branches. In the second article House Democrats are trying to impeach the President for resisting legally defective demands for information by asserting established legal defenses and immunities based on legal advice from the department of Justice’s Office of Legal Counsel. In essence, the approach here is that House Democrats are saying when we demand documents, the executive branch must comply immediately and the assertions of privilege or defenses to our subpoenas are further evidence of obstruction.
We don’t have to go through the constitutionally mandated accommodations process to work out an acceptable solution with the executive branch. We don’t have to go to the courts to establish the validity of our subpoenas. At one point manager Schiff said that anything that makes the house even contemplate litigation is evidence of obstruction. Instead, the house claims they can jump straight to impeachment. What this really means in this case is that they’re saying for the President to defend the prerogatives of his office to defend constitutionally grounded principles of executive branch privileges or immunities is an impeachable offense. If this chamber accepts that premise that what has been asserted here constitutes an impeachable offense, it will forever damage the separation of powers. It will undermine the independence of the executive and destroy the balance between the legislative and executive branches that the framers crafted in the constitution.
As professor Turley testified before, the house judiciary committee basing impeachment on this obstruction theory would itself be an abuse of power by Congress. And I’d like to go through that and unpack and explain some of that and I’ll start by outlining the three what Trump administration actually did in response to subpoenas because there are three different actions, three different legally based assertions for resisting different subpoenas that the Trump administration made. And I pointed out on Saturday, there has been this constant refrain from the House Democrats that there was just blanket defiance, blanket obstruction as if it were unexplained obstruction. Just we won’t cooperate without more. And that’s not true. There were very specific legal grounds provided and each one was supported by an opinion from the Department of Justice’s office of legal counsel.
So the first is executive branch officials declined to comply with subpoenas that had not been authorized. And that’s the point I made at the beginning. There was no vote from the house without a vote from the house. The subpoenas that were issued were not authorized. And I pointed out that in an October 18th letter from the white house counsel, that specific ground was explained and wasn’t just from the white house council. There were other letters on the screen now as of October 15th letter from OMB, which explained, absent a delegation by a house rule or a resolution of the house, none of your committees has been delegated jurisdiction to conduct an investigation pursuant to the impeachment power under article one, section two of the constitution. And the letter went on to explain that legal rationale. Not blanket defiance. There are specific exchanges of letters explaining these legal grounds for resisting. The second ground. The second principle that the Trump administration asserted was that some of these subpoenas purported to require the President’s senior advisors, his close advisors to testify following at least 50 years of precedent.
The Department of Justice’s office of legal counsel, advised the three senior advisors to the President, the acting white house chief of staff, the legal advisor to the national security council, and the deputy national security advisor. Were absolutely immune from compelled congressional testimony. And based on that advice from the office of legal counsel, the President directed those advisors not to testify. Administrations of both political parties have asserted this immunity since the 1970s. President Obama asserted it as to the director of office of political strategy and outreach. President George W. Bush asserted it as to his former counsel and to his white house chief of staff. President Clinton asserted it as to two of his counsels. President Reagan asserted it as to his counsel Fred Fielding and President Nixon asserted it. This is not something that was just made up recently. There’s a decades long history of the department of justice providing the history of the Department of Justice providing the opinion that senior advisors to the president are immune from compelled congressional testimony. And it’s the same principle that was asserted here. And there are important rationales behind this immunity. One is that the president’s most senior advisors are essentially his alter egos. And allowing Congress to subpoena them and compel them to come testify would be tantamount to allowing Congress to subpoena the president and force him to come testify. But that under the separation of powers would not be tolerable. Congress could no more do that with the president THAN the president could force members of Congress to come to the White House and answer to him.
There’s also a second, an important rationale behind this immunity and that relates to executive privilege. The immunity protects the same interests that underlie executive privilege. The Supreme Court has recognized executive privilege that protects the confidentiality of communications with the president and deliberations within the executive branch is as the Court put it in the United States v. Nixon, “The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.”
So the Supreme Court has recognized the executive needs this privilege to be able to function. It’s rooted in the separation of powers. As Attorney General Janet Reno advised President Clinton, the immunity such advisers enjoy from testimonial compulsion by a congressional committee is absolute and may not be overborne by competing congressional interests. So that’s Attorney General Reno and President Clinton. This is not a partisan issue. This is not a Republican or Democrat issue. Administrations of both parties assert this principle of immunity for senior advisers.
And why does it matter? It matters because the Supreme Court has explained the fundamental principle behind executive privilege is that it’s necessary to have confidentiality and communications in deliberations in order to have good and worthwhile deliberations in order to have people provide their candid advice to the president. Because if they knew what they were going to say was going to be on the front page of the Washington Post the next day or the next week, they wouldn’t tell the president what they actually thought. If you want to have good decision-making, there has to be that zone of confidentiality.
And this is the way the Supreme Court put it, “Human experience teaches that those who expect public dissemination of their remarks, may will temper candor with a concern for appearances and for their own interests to the detriment of the decision- making process.” That was also from United States v. Nixon. So those are exactly the interests that are protected by having senior advisors to the president be immune from compelled congressional testimony. Because once someone is compelled to sit in the witness seat and start answering questions, it’s very hard for them to protect that privilege. To make sure that they don’t start revealing something that was discussed.
So for a small circle of those close to the president for the past 40 to 50 years, administrations of both parties have insisted on this principle. Now, the other night, the House managers, when we were here very late last week, they suggested that executive privilege was a distraction and Manager Nadler called it nonsense. Not at all. It is a principal recognized by the Supreme Court, a constitutional principle grounded in the separation of powers. They also asserted that this immunity has been rejected by every court that has addressed it as if to make it seem that lots of courts have addressed this. They’ve all said that this theory just doesn’t fly. That’s not accurate. That’s not true. In fact, in most instances, once the president asserts immunity for a senior adviser, the accommodations process between the executive branch and the legislature begins and there’s usually some compromise to allow perhaps some testimony not in an open hearing but in a closed hearing or in a deposition perhaps to provide some other information instead of live testimony, there’s a compromise.
But the only two times it’s been litigated, district courts, it is true rejected the immunity. One was in a case involving a former counsel to President George W. Bush, Harriet Myers. The district court rejected the immunity, but immediately on appeal, the Court of Appeals for the D.C. Circuit stayed that decision. And that decision means, to stay that district court decision, that the appellate court thought there was a likelihood of success on appeal, that the executive branch might succeed or at a minimum that the issue of immunity presented questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation. So the first decision was stayed. The second district court decision is still being litigated right now. It’s the McGahn case that the House has brought trying to get testimony from former counsel to President Trump, Donald McGahn. And that case was just argued in the D.C. Circuit on January 3rd. So there is no established law suggesting that this immunity somehow has been rejected by the courts. It’s still being litigated right now. And it is an immunity that is a standard principle asserted by every administration of both parties for the past 40 years. Asserting that principle can’t be treated as obstruction of Congress.
The third action that the president took, the administration took, related to the fact that House Democrats subpoenas’ tried to shut out executive branch counsel, agency council, from the depositions of executive branch employees. Now the Office of Legal Counsel concluded the congressional committees may not bar agency counsel from assisting an executive branch witness without contravening the legitimate prerogatives of the executive branch. And an attempt to enforce the subpoena while barring agency counsel, “Would be unconstitutional.” The President relied on that legal advice here. As Judge Starr pointed out, the President was consulting with the Department of Justice, receiving advice from the very respected Office of Legal Counsel, and following that advice about the constitutional prerogatives of his office and the constitutional prerogatives of the executive branch.
Again, administrations of both political parties have recognized the important role that agency council plays. In the Obama Administration, the Office of Legal Counsel stated that exclusion of agency counsel, “could potentially undermine the president’s constitutional authority to consider and assert executive privilege where appropriate.” So why is agency counsel important? As I tried to explain the executive privilege of confidentiality for communications with the president for internal deliberative communications of the executive branch. Those are important legal rights. They’re necessary for the proper functioning of the executive branch and agency counsel is essential to protect those legal rights. When an individual employee goes in to testify, he or she might not know, probably would not know, where is the line for what’s covered by executive privilege or deliberative process privilege? Not things that employees necessarily know.
And their personal counsel, even if they’re permitted to have their personal counsel with them. Same thing. Most attorneys for personal for employees don’t know the finer points of executive branch confidentiality interests, of deliberative process privilege. And it’s also not their job to protect those interests. They’re the personal lawyer for the employee who’s testifying, trying to protect that employee from potential legal consequences. We usually have lawyers to protect legal rights. So it makes sense when there is an important legal and constitutionally based right at stake, the executive privilege, that there should be a lawyer there to protect that right for the executive branch. And that’s the principle that the Office of Legal Counsel endorsed.
This also doesn’t raise any insurmountable problems for congressional investigations or finding information. In fact, just as recently as April 2019 the House Committee on Oversight and Government Reform reached accommodation with the Trump Administration after the administration had declined to make someone available for a deposition because of the lack of agency counsel. And that issue was worked out an accommodation was made and there was some testimony provided in other circumstances. So it doesn’t always result in the kind of escalation that was seen here straight to impeachment. The accommodation process can work things out. House Democrats have pointed to a House rule that excludes agency council, but of course a House rule cannot override a constitutional privilege.
So those are the three principles that the Trump Administration asserted. Now I’d like to turn to the claim that somehow this assertion of these principles created an impeachable offense. The idea that asserting defenses and immunities, legal defenses and immunities in response to subpoenas, acting on advice of the Department of Justice is an impeachable offense is absurd and it is dangerous for our government. Let me explain why.
House Democrat’s obstruction theory is wrong first and foremost because in a government of laws, asserting privileges and rights to resist compulsion is not obstruction. It’s a fundamental right in [Bordernircher 00:30:04] v. Hayes, the Supreme Court explained, “To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for 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.” This is a principle that in the past and the Clinton impeachment was recognized across the board that it would be improper to suggest that asserting rights is an impeachable offense. Harvard Law Professor Lawrence Tribe said, “The allegations that invoking privileges and otherwise and using the judicial system to shield information is an abusive power that should lead to impeachment and removal from office is not only frivolous but also dangerous.”
And Manager Nadler then said that the use of illegal privilege is not illegal or impeachable by itself a legal privilege, executive privilege. And Minority Leader Schumer in the Clinton impeachment expressed the same view.
Chuck Schumer:
To suggest that any subject of an investigation, much less the President with [???] to the institution of the presidency is abusing power and interfering with an investigation by making legitimate legal claims using due process and asserting constitutional rights is beyond serious consideration.
Patrick Philbin:
And that was exactly correct then and it’s exactly correct now. Now more important than simply the principle that asserting rights cannot be considered obstruction, when the rights the president is asserting are based on executive privilege, when they are constitutionally grounded principles that are essential for the separation of powers and protecting the institution of the office of the presidency. To call that obstruction is to turn the Constitution on its head, defending the separation of powers cannot be deemed an impeachable offense without destroying the Constitution.
Accepting that approach would do permanent damage to the separation of powers and it would allow the House of Representatives to turn any disagreement with the executive over informational demands into a supposed basis for removing the president from office. It would effectively create for us the very parliamentary system that the Framers sought to avoid, because by making any demand for information and goading the executive to a refusal and treating that then is impeachable, the House would effectively be able to function with a no confidence vote power.
Now, that is not the Framers’ design. The legislative and executive branches frequently clash on questions of constitutional interpretation, including about congressional demands for information. These conflicts have happened since the founding. In 1796, George Washington, first president resisted demands from Congress for information about the negotiation of the Jay Treaty. And there have been conflicts between the executive and the Congress in virtually every administration since then about congressional demands for information.
The Founding Fathers expected the branches to have these conflicts. James Madison pointed out that the legislative, executive and judicial departments must in the exercise or their functions, be guided by the text of the Constitution according to its own of it, each according to its own interpretation of it. It was recognized that there would be friction. Similarly in Federalist 51, Madison pointed out that, “The great security against a gradual concentration of the several powers in the same department, consistent giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others.” This is checks and balances, this friction, this clashing between the branches. It is not evidence of an impeachable offense. It’s the separation of powers in its practical operation. It’s part of the constitutional design.
Now, the proper and historically accepted way that these disagreements have been resolved is through the constitutionally mandated accommodations process. Courts have explained that the branches are required to engage in an accommodations process to resolve disagreements where there’s a clash over a demand for information as the D.C. Circuit has explained. When Congress asked for information from the executive branch that triggers “an implicit constitutional mandate to seek optimal accommodation of the needs of the conflicting branches.” The goal is to accommodate the needs of both branches to reach a compromise. If that accommodation process fails, Congress has other tools at its disposal to address a disagreement.
The House traditionally has proceeded to contempt, to a vote on a contempt resolution. In recent times the House has taken the position that it may sue in the courts to determine the validity of its subpoenas and secure an injunction to enforce them. Now the House managers have pointed out that the Trump Administration, when it was sued in the McGahn case and other cases, has taken the view that those cases are not justiciable in Article III courts. That is correct. That is the view of the Trump Administration. That was the view of the Obama Administration.
And so there is that resistance in the court cases to the jurisdiction of the courts to address those. But I think house managers are missing the point when they identify that position that the Administration has taken because the House cannot claim that they have a mechanism for going to court. They’re in court right now asserting that mechanism in the McGahn case. And then simultaneously claim that, well they don’t have to bother with that mechanism, they can jump straight to impeachment. Impeachment under the Constitution is the thermonuclear weapon of inter-branch friction and where there is something like a rifle or a bazooka at the House’s disposal to address some friction with the executive branch, that is the next step. It is incrementalism in the Constitution, not jumping straight to impeachment that is the solution. If the House could jump straight to impeachment, that would alter the relationship between the branches. It would suggest that the House could make itself superior over the executive. Dangle the threat of impeachment over any demand for information made to the executive. That’s contrary to the Framers’ plan. Madison explained that where the executive and the legislative branches come into conflict, this is in Federalist 49, he said, ” Neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” But that is exactly what the House managers have asserted. In this case. They have said that the House becomes supreme. There is no need for them to go to court. The executive must be wrong. Any resistance to their subpoena is obstruction. If you claim that our subpoena is invalid, we don’t have to do anything to address that concern we will just impeach you because resistance is obstruction of-
That concern, we will just impeach you because resistance is obstruction of Congress. And the House Committee even put it this way in their report, the Judiciary Committee, they said that the House itself… They effectively have said that, “The House is the judge of its own powers because,” what they said was quote, “The Constitution gives the House the final word,” end quote. That’s on page 154 of the House Judiciary Committee report and what that is essentially saying, they point to the fact that article one, section two, it gives the House the sole power of impeachment and they claimed that because it’s the sole power of impeachment, the courts have no role. The House is the final word.
It’s the judge of its own powers, but that’s contrary to The Constitutional design. There is no power that is unchecked in The Constitution. The sole power of impeachment given to the House simply means that that power is given solely to the House, not anywhere else. The Constitution does not say that the power of impeachment is the paramount power that makes all other Constitutional rights and privileges and prerogatives of the other branches fall away.
The framers recognized that there could be partisan impeachment, there could be impeachments for the wrong reasons, and they did not strip the executive branch of any of its means for protecting its own sphere of authority, its own prerogatives under The Constitution. Those principles of executive privilege, those immunities still survive even in the context of impeachment. The power of impeachment is not like the House can simply flip a switch and say, “Now we’re an impeachment,” and they have constitutional kryptonite that makes the powers of the executive eliminated.
So when there are these conflicts, even in the context of an impeachment inquiry, the executive can continue to assert its privileges and prerogatives under The Constitution. And indeed it must in order to protect the institutional interests of the office of the presidency and to preserve the proper balance between the branches under The Constitution. 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 quote, “Entirely untenable and abusive of an impeachment,” end quote.
Other scholars agree. In the Clinton impeachment, Professor Susan Low Bloch testified that quote, “Impeaching a president for invoking lawful privileges is a dangerous and ominous precedent,” end quote. It would achieve exactly the result of Gouverneur Morris, one of the framers warned against at The Constitutional convention. He explained that, quote, “When we make him,” referring to the president, “Amenable to justice, however, we should take care to provide some mode that will not make him dependent on the legislature,” end quote.
That is exactly what this article of impeachment would do. It would make the president dependent on the legislature because any demand for information made by Congress could be used as a threat of impeachment to enforce compliance by the executive. And the very theory that the House Democrats have asserted is that there can be no assertions of privileges, no constitutionally based prerogatives of the executive to stand in the way.
If that theory were true, virtually every president could have been impeached. Virtually every president has asserted, at one time or another, these constitutional prerogatives. President Obama famously in the Fast and Furious investigation refuse to turn over documents that led to his attorney general being held in contempt, but that didn’t lead to impeachment. And there could be a long list, Professor Turley testified there’d be a very long list of presidents who would have to be distinguished if the principal’s being asserted now, in this case, were applied to all past presidents in history.
Now, the House Democrats have given a few different justifications for this approach, but I would submit, none can be reconciled with The Constitution. They say that if we cannot impeach the president for this obstruction, then the president is above the law, not so. As I think I pointed out, the president is staying within the law, asserting the law, relying on the legal advice from the Department of Justice to make his arguments based on long recognized constitutional principles and indeed is making the fundamental point with respect to the subpoenas that its Congress that is not above the law. It’s the House.
The House has to follow the law as well. It has to issue valid subpoenas. And if the law isn’t followed, those subpoenas are null and void and the executive doesn’t have to comply with them. The House Democrats say that they shouldn’t go to the courts because the courts have no role in impeachment. I think I’ve pointed out that the House Democrats can’t say that they have the… Just because of the provision of the sole power of impeachment, that it’s the paramount power and that no other branch plays any role in providing a check on how that power is exercised. And in addition, the House Democrats have gone to court.
In the McGann case that they’re litigating right now, they have asserted that that is part of the impeachment inquiry. The Trump administration has explained that it was not validly part of the impeachment inquiry, but that is the ground on which they are litigating that. They say that they have no time for the courts. I think what that really means is they have no time for the rule of law and the way that they’re pursuing the inquiry.
The other day, one of the House managers actually said on the floor of the Senate that they had to get moving. They couldn’t wait for litigation because they had to impeach the president before the election. That’s not a valid reason to not pursue litigation in the courts. And I think it’s relevant to bear in mind, what sort of delay are we talking about? In the McGann case that the House manager’s referred to a number of times, which they had pointed out, they presented as being very long and drawn out, they issued a subpoena in April, but they did not file a lawsuit until August.
By November, November 25th, they had a decision from the district court and it was argued on appeal in the DC Circuit on January 3rd. For litigation, that’s pretty fast, and it can go faster. In the Nixon case during Watergate, the special prosecutor issued a subpoena on April 18th, 1974 on May 20th, so in less than a month, the District Court denied a motion to quash the subpoena.
On May 31st the Supreme Court agreed to hear the case granting cert before judgment in the court of appeals. And on July 24th the Supreme Court issued a decision, that’s lightening fast. So when there is urgency to the case, when there is a reason for it, there can be expedition in the courts and a decision can be had in a timely manner. And the one case that actually arose from these impeachment proceedings, it was the House that derailed the case.
This was the case involving Deputy National Security Advisor, Charlie Kupperman. Because when he received a subpoena, he went to court and asked the court for a declaratory judgment explaining what his obligations were. Should he take the directive from the president that he was immune and not go? Or should he obey the subpoena? Now, in that case, he filed suit on October 25th. The court, within a few days, set an expedited briefing schedule, but the House withdrew the subpoena on November 5th just 11 days later in order to moot the case.
So I think litigation is a viable avenue along with the accommodation process as a first step. Then if the House believes that it can go to court and wants to litigate the jurisdiction and litigate the validity of its subpoenas, that’s also available to them. But impeachment as the first step, doesn’t make any sense. And I should point out in part when the House managers say they didn’t have time to litigate, they didn’t have time to go to the courts, but they now come to this chamber and say, “This chamber should issue some more subpoenas. This chamber, she gets some witnesses that we didn’t bother to fight about.”
What do you think will happen then? That there won’t be similar assertions of privilege and immunity? That there wouldn’t be litigation about that? Again, this goes back to the point that I made. If you put your imprimatur on a process that was broken and say, “Yes, that was a great way to run things. This was a great package to bring here and we’ll clean up the mess and issue subpoenas and try to do all the work that wasn’t done,” then that becomes the new normal.
And that doesn’t make sense for this body. Proper way to have things handled is to have the House, if it wants to bring an impeachment here ready for trial, it has to do the investigation. The information it wants to get, if there’s going to be resistance, that has to be resolved and it has to be ready to proceed. Not transfer the responsibility to this chamber to do the work that hasn’t been done.
They also assert that President Trump’s assertion of these privileges is somehow different because it’s unprecedented and it’s categorical. Well, it’s unprecedented perhaps in the sense that there was a broad statement that a lot of subpoenas wouldn’t be complied with, but that’s because it was unprecedented for the House to begin these proceedings without voting to authorize a committee to issue the subpoenas. That was the first unprecedented step. That’s what had never happened before in history. So of course the response to that would be in some sense unprecedented.
And as the President simply pointed out that without that vote there were no valid subpoenas. And there have also been categorical refusals in the past. President Truman, when the House Committee on un-American activities in 1948 issued subpoenas to his administration, issued a directive to the entire executive branch that any subpoena or demand or request for information reports or files of the nature described in those subpoenas shall be respectfully declined on the basis of this directive. And he referred all such inquiries to the office of the President for such response as the President may determined to be in the public interest and the Truman administration responded to none of them.
A last point on the House Democrats claimed that the privileges simply disappear because this is the impeachment power of the House. They’ve referred a number of times the United States versus Nixon, the Supreme Court decision suggesting that that somehow determines that when you’re in impeachment inquiry, executive privilege falls away. Well, that’s not true. In fact, United States versus Nixon was not even actually addressing a congressional subpoena.
It was a subpoena from the special prosecutor. And even in that context, the court did not say that executive privilege simply disappears. Instead, this court said, quote, “It is necessary to resolve these competing interests,” they are the interest of the judicial branch and administering a criminal prosecution. The case where the evidence was needed, “These competing interests in a manner that preserves the essential functions of each branch.” And it even held out the possibility that in the field of foreign relations in national security, there might be something approaching an absolute executive privilege, and that’s exactly the field that we’re in, in this case; foreign relations and national security matters.
Another thing that you’ve heard is that President Clinton voluntarily cooperated with the investigation that led to his impeachment, produced tens of thousands of documents, but that’s not really accurate. That was only after long litigation again and again about assertions of privilege. He asserted numerous privileges. The House Judiciary Committee then explained, quote, “During the Lewinsky investigation, President Clinton abused his power through repeated frivolous assertions of executive privilege by at least five of his aides,” end quote.
Unlike the House in this case, independent counsel star first negotiated with the white House and then litigated those claims and got them resolved. Ultimately, the House Managers argue that all of the problems with their obstruction theory should be brushed aside and the President’s assertions of immunities and defenses have to be treated as something nefarious because as Mr Nadler put it, “Only guilty people try to hide the evidence.”
That’s what he said last Tuesday night. And Mr Schiff similarly said in discussing the assertion of the executive branch’s constitutional rights that quote, “The innocent do not act this way,” end quote. Really? Is that the principle in the United States of America? That if you assert legal privileges or rights, that means you’re guilty? That the innocent don’t assert their rights? That the President can’t defend The Constitutional prerogatives of his office? That doesn’t make any sense At bottom, the second article of impeachment comes down to a dispute over a legal issue relating to constitutional limits on the ability of the House to compel information from the executive. No matter how House Democrats try to dress up their charges, a difference of legal opinion does not rise to the level of impeachment. Until now, the House has repeatedly rejected attempts to impeach presidents based on legal disputes over assertions of privilege.
As Judge Starr pointed out in the Clinton proceeding, the House Judiciary Committee concluded that the President had improperly exercised executive privilege, yet still concluded that it did not have the ability to second guess the rationale behind the President or what was in his mind asserting executive privilege and it could not treat that as an impeachable offense. It rejected an article of impeachment based on Clinton’s assertions of privilege.
And as the House Democrats own witness, Professor Gerhardt has explained, in 1843 President Tyler similarly was investigated for potential impeachment, his attempts to protect and assert what he regarded as the prerogatives of his office, because he had resisted demands for information from Congress, Professor Gerhardt explained that 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 and they could not be used, the congress determined, to impeach him. President Trump’s resistance to congressional subpoenas was no less a function of his constitutional and policy judgments, and it provides no basis to impeach him.
I’d like to close with a final thought. One of the greatest issues and perhaps the greatest issue for your consideration in this case is how the precedent set in this case will affect the future. The framers recognized that there would be partisan and illegitimate impeachments. Hamilton expressly warned in Federalist number 65 about impeachments that reflected what he called, quote, “The persecution of an intemperate or designing majority in the House of Representatives,” end quote.
That is exactly what this case presents. And justice story recognized that the Senate provided the proper tribunal for trying impeachments because it was believed by the framers to have a greater sense of obligation to the future, to future generations, not to be swayed by the passions of the moment.
And one of the essential questions here is will this chamber adopt a standard for impeachment, and diluted standard, that fundamentally disrupts, damages, alters the separation of powers in our constitutional structure of government? Because that is what both the first article, for reasons that Judge Starr and Professor Dershowitz have covered, and the second article, the obstruction charge would do.
And so I’ll close just with a quotation from one of the Republican senators who crossed the aisle and voted against convicting President Andrew Johnson during his impeachment trial, it was Lyman Trumbull, who explained, I think the great principle that applies here. He said, quote, “Once we set the example of impeaching a president for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes. No future president will be safe. And what then becomes of the checks and balances of The Constitution so carefully devised and so vital to its perpetuity, they are all gone.” Thank you, Mr Chief Justice.
