Staff Writer, DL Mullan
Impeachment / Legal Rebuttal
___________________________________
THE WHITE HOUSE
WASHINGTON
October 8, 2019
The Honorable Nancy Pelosi
Speaker
House of Representatives
Washington, D.C. 20515
The Honorable Eliot L. Engel
Chairman
House Foreign Affairs Committee
Washington, D.C. 20515
The Honorable Adam B. Schiff
Chairman
House Permanent Select Committee on
Intelligence
Washington, D.C. 20515
The Honorable Elijah E. Cummings
Chairman
House Committee on Oversight and Reform
Washington, D.C. 20515
Dear Madam Speaker and Messrs. Chairmen:
I write on behalf of President Donald J. Trump in response
to your numerous, legally unsupported demands made as part of what you have
labeled-contrary to the Constitution of the United States and all past bipartisan precedent-as an
"impeachment inquiry." As you know,you have designed and implemented your inquiry in a manner
that violates fundamental fairness and constitutionally mandated due process.
For example, you have denied the President the right to
cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have
access to evidence, to have counsel present, and many other basic rights guaranteed to all
Americans. You have conducted your proceedings in secret. You have violated civil liberties and
the separation of powers by threatening Executive Branch officials, claiming that you
will seek to punish those who exercise fundamental constitutional rights and prerogatives. All of
this violates the Constitution, the rule of law, and eve1y past precedent. Never before in our
history has the House of Representatives-under the control of either political
party-taken the American people down the dangerous path you seem determined to pursue.
Put simply, you seek to overturn the results of the 2016
election and deprive the
American people of the President they have freely chosen.
Many Democrats now apparently view impeachment not only as a means to undo the democratic
results of the last election, but as a strategy to influence the next election, which is barely
more than a year away. As one member of Congress explained, he is "concerned that if we don't
impeach the President, he will get reelected." 1 Your highly partisan and unconstitutional
effort threatens grave and lasting damage
to our democratic institutions, to our system of free
elections, and to the American people.
1
Interview with Rep. Al Green, MSNBC (May 5, 2019).
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Speaker Pelosi, and Chairmen Engel, Schiff, and
Cummings
Page 2
For his part, President Trump took the unprecedented step of
providing the public transparency hy declassifying and releasing the record of
his call with President Zelenskyy of Ukraine. The record clearly established that the call was
completely appropriate and that there is no basis for your inquiry. The fact that there was nothing
wrong with the call was also powerfully confirmed by Chairman Schiff's decision to create
a false version of the call and read it to the American people at a congressional hearing,
without disclosing that he was simply making it all up.
In addition, information has recently come to light that the
whistleblower had contact with Chairman Schiffs office before filing the complaint.
His initial denial of such contact caused The Washington Post to conclude that Chairman
Schiff"clearly made a statement thatwas false. "2 In any event, the American people understand
that Chairman Schiff cannot covertly assist with the submission of a complaint, mislead the
public about his involvement, read a
counterfeit version of the call to the American people, and
then pretend to sit in judgment as a neutral "investigator."
For these reasons, President Trump and his Administration
reject your baseless,
unconstitutional efforts to overturn the democratic process.
Your unprecedented actions have left the President with no choice. In order to fulfill his
duties to the American people, the Constitution, the Executive Branch, and all future occupants
of the Office of the Presidency, President Trump and his Administration cannot participate in
your partisan and unconstitutional inquiry under these circumstances.
I.
Your "Inquiry" Is Constitutionally Invalid and
Violates Basic Due Process Rights
and the Separation of Powers.
Your inquiry is constitutionally invalid and a violation of
due process. In the history of our Nation, the House of Representatives has never attempted
to launch an impeachment inquiry against the President without a majority of the House taking
political accountability for that decision by voting to authorize such a dramatic
constitutional step. Here, House leadership claims to have initiated the gravest inter-branch conflict
contemplated under our Constitution by means of nothing more than a press conference at which the
Speaker of the House simply
announced an "official impeachment inquiry." 3 Your
contrived process is unprecedented in the 2 3 Glenn Kessler, Schiff's False Claim His Committee Had Not
Spoken to the Whistleblower, Wash. Post (Oct. 4, 20 I 9). Press Release, Nancy Pelosi, Pelosi Remarks Announcing
Impeachment Inquiry (Sept. 24, 2019).
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Speaker Pelosi, and Chairmen Engel, Schiff, and
Cummings
Page 3
history of the Nation, 4 and lacks the necessary authorization for a valid impeachment
proceeding. 5
The Committees' inquiry also suffers from a separate, fatal defect. Despite Speaker
Pelosi's commitment to "treat the President with fairness," 6 the Committees have not established
any procedures affording the President even the most basic protections demanded by due process
under the Constitution and by fundamental fairness. Chairman Nadler of the House Judiciary
Committee has expressly acknowledged, at least when the President was a member of his own
party, that "[t]he power of impeachment ... demands a rigorous level of due process," and that
in this context "due process mean[s] ... the right to be informed of the law, of the charges
against you, the right to confront the witnesses against you, to call your own witnesses, and to
have the assistance of counsel. "7 All of these procedures have been abandoned here.
These due process rights are not a matter of discretion for the Committees to dispense
with at will. To the contrary, they are constitutional requirements.
The Supreme Court has
recognized that due process protections apply to all congressional investigations. 8 Indeed, it has
been recognized that the Due Process Clause applies to impeachment proceedings. 9 And
precedent for the rights to cross-examine witnesses, call witnesses, and present evidence dates
back nearly 150 years. 10 Yet the Committees have decided to deny the President these
elementary rights and protections that form the basis of the American justice system and are
protected by the Constitution. No citizen-including the President-should be treated this
unfairly.
4
5
6
7
8
9
10
Since the Founding of the Republic, under unbroken practice, the House has never undertaken the solemn
responsibility of an impeachment inquiry directed at the President without first adopting a resolution authorizing
a committee to begin the inquiry. The inquiries into the impeachments of Presidents Andrew Johnson and Bill
Clinton proceeded in multiple phases, each authorized by a separate House resolution. See, e.g., H.R. Res. 581,
I 05th Cong. (1998); H.R. Res. 525, I 05th Cong. (1998); III Hinds' Precedents §§ 2400-02, 2408, 2412. And
before the Judiciary Committee initiated an impeachment inquiry into President Richard Nixon, the Committee's
chairman rightfully recognized that "a[n) [inquiry] resolution has always been passed by the House" and "is a
necessary step." III Deschler's Precedents ch. 14, § 15.2. The House then satisfied that requirement by adopting
H.R. Res. 803, 93rd Cong. (1974),
Chairman Nadler has recognized the importance of taking a vote in the House before beginning a presidential
impeachment inquiry. At the outset of the Clinton impeachment inquiry-where a floor vote was held-he
argued that even limiting the time for debate before that vote was improper and that "an hour debate on this
momentous decision is an insult to the American people and another sign that this is not going to be fair." 144
Cong. Rec. HI 0018 (daily ed. Oct. 8, 1998) (statement of Rep. Jerrold Nadler). Here, the House has dispensed
with any vote and any debate "t {II/,
Press Release, Nancy Pelosi, Transcript of Pelosi Weekly Press Conference Today (Oct. 2, 2019).
Examining the Allegations of Misconduct Against IRS Commissioner John Koskinen (Part II): Hearing Before
the H. Comm. on the J11diciG1J', 114th Cong. 3 (2016) (statement of Rep. Jerrold Nadler); Background and
History of Impeachment: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary,
105th Cong. 17 (1998) (statement of Rep, Jerrold Nadler).
See, e.g., Watkinsv. United States, 354 U.S. 178,188 (1957); Quinnv. United States, 349 U.S. 155,161 (1955).
See Hastings v. United Stales, 802 F. Supp. 490, 504 (D.D.C. 1992), vacated on other grounds by Hastings v.
United States, 988 F.2d 1280 (D.C. Cir. 1993).
See, e.g., III Hinds' Precedents § 2445.
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Speaker Pelosi, and Chairmen Engel, Schiff, and
Cummings
Page 4
To comply with the Constitution's demands, appropriate procedures
would include-at a minimum-the right to see all evidence, to present evidence,
to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to
make objections relating to the examination of witnesses or the admissibility of testimony
and evidence, and to respond to evidence and testimony. Likewise, the Committees must
provide for the disclosure of all evidence favorable to the President and all evidence bearing
on the credibility of witnesses called
to testify in the inquiry. The Committees' current
procedures provide none of these basic constitutional rights.
In addition, the House has not provided the Committees'
Ranking Members with the authority to issue subpoenas. The right of the minority to
issue subpoenas-subject to the same rules as the majority-has been the standard, bipartisan
practice in all recent resolutions authorizing presidential impeachment inquiries. 11 The
House's failure to provide co-equal subpoena power in this case ensures that any inquiry will be
nothing more than a one-sided effort by House Democrats to gather information favorable to their
views and to selectively release it as only they determine. The House's utter disregard for the
established procedural safeguards followed in past impeachment inquiries shows that the
current proceedings are nothing more than an unconstitutional exercise in political theater.
As if denying the President basic procedural protections
were not enough, the
Committees have also resorted to threats and intimidation
against potential Executive Branch witnesses. Threats by the Committees against Executive
Branch witnesses who assert common and longstanding rights destroy the integrity of the process
and brazenly violate fundamental due process. In letters to State Department employees, the
Committees have ominously threatened
without any legal basis and before the Committees even
issued a subpoena-that "[a]ny failure to appear" in response to a mere letter request for a
deposition "shall constitute evidence of obstruction." 12 Worse, the Committees have broadly
threatened that if State Department officials attempt to insist upon the right for the Department to have
an agency lawyer present at depositions to protect legitimate Executive Branch
confidentiality interests-or apparently if
they make any effort to protect those confidentiality
interests at all-these officials will have their salaries withheld. 13
The suggestion that it would somehow be problematic for
anyone to raise long
established Executive Branch confidentiality interests and
privileges in response to a request for a deposition is legally unfounded. Not surprisingly, the
Office of Legal Counsel at the Department of Justice has made clear on multiple occasions
that employees of the Executive Branch who have been instructed not to appear or not to
provide particular testimony before Congress based on privileges or immunities of the Executive
Branch cannot be punished for
11
12
13
H.R. Res. 581, 105th Cong. (1998); H.R. Res. 803, 93rd Cong.
(1974).
Letter from Eliot L. Engel, Chairman, House Committee on
Foreign Affairs, et al., to George P. Kent, Deputy Assistant Secretary, U.S. Department of State I (Sept. 27,
2019).
See Letter from Eliot L. Engel, Chairman, House Committee on
Foreign Affairs, et al., to John J. Sullivan,
Deputy Secretary of State 2-3 (Oct. I, 2019).
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Speaker Pelosi, and Chairmen Engel, Schiff, and
Cummings
Page 5
following such instructions. 14 Current and former State
Department officials are duty bound to protect the confidentiality interests of the Executive
Branch, and the Office of Legal Counsel has also recognized that it is unconstitutional to exclude
agency counsel from participating in congressional depositions. 15 In addition, any attempt to
withhold an official's salary for the assertion of such interests would be unprecedented and
unconstitutional. 16 The Committees'
assertions on these points amount to nothing more than
strong-arm tactics designed to rush proceedings without any regard for due process and the
rights of individuals and of the Executive Branch. Threats aimed at intimidating individuals who assert
these basic rights are attacks on civil liberties that should profoundly concern all
Americans.
II.
The Invalid "Impeachment Inquiry " Plainly Seeks
To Reverse the Election of 2016 and To Influence the Election of 2020.
The effort to impeach President Trump-----without regard to
any evidence of his actions in office is a naked
political strategy that began the day he was inaugurated, and perhaps even before. 17 In fact, your transparent rush to judgment, lack
of democratically accountable authorization, and violation of basic rights in the current
proceedings make clear the illegitimate, partisan purpose of this purported "impeachment
inquiry." The Founders, however, did not create the extraordinary mechanism of impeachment so it
could be used by a political party that feared for its prospects against the sitting President in
the next election. The decision as to who will be elected President in 2020 should rest with the
people of the United States, exactly where the Constitution places it.
Democrats themselves used to recognize the dire implications
of impeachment for the Nation. For example, in the past, Chairman Nadler has
explained:
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
14
15
16
17
See, e.g., Testimonial Immunity Before Congress a/the Former
Counsel to the President, 43 Op. O.L.C. _, * 19 (May 20, 2019); Prosecution/or Contempt a/Congress of an
Executive Branch Official Who Has Asserted a
Claim of Executive Privilege, 8 Op. O.L.C. IO I, I 02, 140
(l 984)("The Executive, however, must be free from the threat of criminal prosecution if its right to assert
executive privilege is to have any practical substance,,,)
Attempted Exclusion of Agency Counsel for Congressional
Depositions of Agency Employees, 43 Op. O.L.C._, * 1-2 (May 23, 2019).
See President Donald J. Trump, Statement by the President on
Signing the Consolidated Appropriations Act, 2019 (Feb. 15, 20 19); Authority of Agency Officials To
Prohibit Employees From Providing information to
Congress, 28 Op, O.L.C. 79, 80 (2004).
See Matea Gold, The Campaign To Impeach President Trump Has
Begun, Wash. Post (Jan. 21, 2017) ("At the moment the new commander in chief was sworn in, a campaign
to build public support for his impeachment went live .... ").
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Speaker Pelosi, and Chairmen Engel, Schiff, and
Cummings
Page 6
politics for years to come, and will call into question the
very legitimacy of
our political institutions. 18
Unfortunately, the President's political opponents now seem
eager to transform
impeachment from an extraordinary remedy that should rarely
be contemplated into a conventional political weapon to be deployed for partisan
gain. These actions are a far cry from what our Founders envisioned when they vested Congress with
the "important trust" of considering impeachment. 19 Precisely because it nullifies
the outcome of the democratic process, impeachment of the President is fraught with the
risk of deepening divisions in the country and creating long-lasting rifts in the body politic.
20 Unfortunately, you are now playing out exactly the partisan rush to judgment that the Founders
so strongly warned against. The American people deserve much better than this.
III.
There Is No Legitimate Basis for Your "Impeachment
Inquiry"; Instead, the
Committees' Actions Raise Serious Questions.
It is transparent that you have resorted to such
unprecedented and unconstitutional procedures because you know that a fair process would expose
the lack of any basis for your inquiry. Your current effort is founded on a completely
appropriate call on July 25, 2019, between President Trump and President Zelenskyy of Ukraine.
Without waiting to see what was actually said on the call, a press conference was held
announcing an "impeachment inquiry"
based on falsehoods and misinformation about the call. 21 To
rebut those falsehoods, and to provide transparency to the American people, President Trump
secured agreement from the Government of Ukraine and took the extraordinary step of
declassifying and publicly releasing the record of the call. That record clearly established that
the call was completely appropriate, that the President did nothing wrong, and that there is no
basis for an impeachment inquiry. At a joint press conference shortly after the call's public
release, President Zelenskyy agreed that the call was appropriate. 22 In addition, the Department of
Justice announced that officials there had reviewed the call after a referral for an alleged campaign
finance law violation and found no such violation. 23 Perhaps the best evidence that there was no wrongdoing on
the call is the fact that, after the actual record of the call was released, Chairman Schiff
chose to concoct a false version of the call and to read his made-up transcript to the American
people at a public hearing. 24 This
18
19
20
21
22
23
24
144 Cong. Rec. HI 1786 (daily ed. Dec. 18, 1998) (statement
of Rep. Jerrold Nadler).
The Federalist No. 65 (Alexander Hamilton).
See id.
Press Release, Nancy Pelosi, Pelosi Remarks Announcing
Impeachment Inquiry (Sept. 24, 20 19).
President Trump Meeting with Ukrainian President, C-SPAN
(Sept. 25, 2019).
Statement of Kerri Kupec, Director, Office of Public
Affairs, Dept. of Justice (Sept. 25, 2019) ("[T]he Department's Criminal Division reviewed the official record
of the call and determined, based on the facts and applicable law, that there was no campaign finance violation
and that no further action was warranted.").
See Whistleblower Disclosure: Hearing Before the H Select
Comm. 011 Intel., I 16th Cong. (Sept. 26, 2019)
(statement of Rep. Adam Schiff).
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Speaker Pelosi, and Chairmen Engel, Schiff, and
Cummings
Page 7
powerfully confirms there is no issue with the actual call.
Otherwise, why would Chairman Schiff feel the need to make up his own version? The
Chairman's action only further undermines the public's confidence in the fairness of any
inquiry before his Committee.
The real problem, as we are now learning, is that Chairman
Schiffs office, and perhaps others-despite initial denials-were involved in advising the
whistleblower before the complaint was filed. Initially, when asked on national
television about interactions with the whistleblower, Chairman Schiff unequivocally stated that
"[w]e have not spoken directly with
the whistleblower. We would like to."25 Now, however, it has been reported that the whistleblower
approached the House Intelligence Committee with information-and received
guidance from the Committee-before filing a complaint with the Inspector General. 26 As a
result, The Washington Post concluded that Chairman Schiff "clearly made a statement that was
false. "27 Anyone who was involved in the preparation or submission of the whistleblower's complaint cannot possibly act as a fair and impartial judge in the same matter-particularly after
misleading the American people about his involvement.
All of this raises serious questions that must be
investigated. However, the Committees are preventing anyone, including the minority, from looking
into these critically important matters. At the very least, Chairman Schiff must immediately
make available all documents relating to these issues. After all, the American people
have a right to know about the Committees' own actions with respect to these matters.
*
*
*
Given that your inquiry lacks any legitimate constitutional
foundation, any pretense of fairness, or even the most elementary due process
protections, the Executive Branch cannot be expected to participate in it. Because participating in this
inquiry under the current unconstitutional posture would inflict lasting institutional
harm on the Executive Branch and lasting damage to the separation of powers, you have left
the President no choice. Consistent with the duties of the President of the United States, and
in particular his obligation to preserve
the rights of future occupants of his office, President
Trump cannot permit his Administration to participate in this partisan inquiry under these
circumstances.
Your recent letter to the Acting White House Chief of Staff
argues that "[e]ven if an impeachment inquiry were not underway," the Oversight
Committee may seek this information
25
26
27
Interview with Chairman Adam Schiff, MSNBC (Sept. l 7,
2019).
Julian Barnes, et al., Schiff Got Early Account
of Accusations as Whistle-Blower's Concerns Grew, N.Y. Times(Oct. 2, 20 l 9).
Glenn Kessler, Schiff's False Claim His Co111111i//ee Had
Not Spoke11 to the Whistleblower, Wash, Post (Oct. 4,
2019).
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Speaker Pelosi, and Chairmen Engel, Schiff, and
Cummings
Page 8
as a matter of the established oversight process. 28
Respectfolly, the Committees cannot have it both ways. The letter comes from the Chairmen of three
different Committees, it transmits a subpoena "[p]ursuant to the House of Representatives'
impeachment inquiry," it recites that the documents will "be collected as part of the House's
impeachment inquiry," and it asserts that the documents will be "shared among the Committees, as well
as with the Committee on the Judiciary as appropriate."29 The letter is in no way
directed at collecting information in aid of legislation, and you simply cannot expect to rely on
oversight authority to gather information for an unauthorized impeachment inquiry that conflicts with all
historical precedent and rides roughshod over due process and the separation of powers. If
the Committees wish to return to the regular order of oversight requests, we stand ready to
engage in that process as we have in the past, in a manner consistent with well-established
bipartisan constitutional protections and a respect for the separation of powers enshrined in our
Constitution.
For the foregoing reasons, the President cannot allow your
constitutionally illegitimate proceedings to distract him and those in the Executive
Branch from their work on behalf of the American people. The President has a country to lead. The
American people elected him to do this job, and he remains focused on fulfilling his promises
to the American people. He has important work that he must continue on their behalf, both
at home and around the world, including continuing strong economic growth, extending
historically low levels of
unemployment, negotiating trade deals, fixing our broken
immigration system, lowering prescription drug prices, and addressing mass shooting
violence. We hope that, in light of the many deficiencies we have identified in your proceedings,
you will abandon the current invalid efforts to pursue an impeachment inquiry and join the
President in focusing on the many important goals that matter to the American people.
),,
28
29
Hon. Kevin McCarthy, Minority Leader, House of
Representatives
Hon. Michael McCaul, Ranking Member, House Committee on
Foreign Affairs
Hon. Devin Nunes, Ranking Member, House Permanent Select
Committee on
Intelligence
Hon. Jim Jordan, Ranking Member, House Committee on
Oversight and Reform
Letter from Elijah E. Cummings, Chairman, House Committee on
Oversight and Government Reform, et al., to John Michael Mulvaney, Acting Chief of Staff to the President 3
(Oct. 4, 2019).
Id. at I.
