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CNN Live Event/Special
The Fourth Day of President Donald J. Trump's Impeachment Trial. Aired 5-6p ET
Aired January 24, 2020 - 17:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[17:00:00]
It shows that President Trump's order left Mr. Eisenberg with, quote, "no other option that is consistent with his legal and ethical obligations."
By directing him to defy a lawful subpoena, President Trump created a legal and ethical problem for Mr. Eisenberg. I'm sure you know, contempt of Congress can be punished as a criminal offense. It carries a possible sentence of up to 12 months in jail.
No president has ever dared during an impeachment inquiry to officially and explicitly order government witnesses to defy House subpoenas. You don't have to consider high-minded constitutional principles to understand why this was wrong. It's simple really.
By ordering specific government officials to defy congressional subpoenas, President Trump forced those officials to choose between submitting to the demands of their boss or break the law. Nobody should abuse a position of power in that way.
But President Trump's specifically ordered all three of these senior White House officials, Mulvaney, Blair, Eisenberg, to defy the House's subpoenas and refuse to testify.
President Trump's efforts to conceal his actions didn't stop there and they didn't stop at the front door at the White House. No less than 12 other witnesses were specifically ordered not to testify. One of those witnesses, Ulrich Brechbuhl, hasn't been highlighted much over the past few days. But the way he fits into the stories worth noting.
Mr. Brechbuhl is a senior official at the State Department. Like these other senior officials, he was ordered not to testify. In a letter to the House, his attorney said, quote, Mr. Brechbuhl has received a letter of instruction from the State Department directing that he not appear."
Mr. Brechbuhl is still another person who could shed light on President Trump's actions. He was kept updated on Rudy Giuliani's broader efforts in Ukraine. He had first-hand knowledge of Secretary Pompeo's involvement.
For one thing, he handled Ambassador Yovanovitch's recall from Ukraine though he refused to meet with her in the aftermath. Also, messages by Ambassador Volker show that Mr. Brechbuhl knew about Mr. Giuliani's efforts in the Ukraine as they occurred.
On July 10th, Ambassadors Taylor, Volker and Sondland discussed Rudy Giuliani's push abroad. While discussing the problems Rudy was creating by meddling in official U.S. foreign policy, Ambassador Taylor noted that he, quote, briefed Ulrich this afternoon.
Also, on August 11th, Ambassador Sondland emailed Mr. Brechbuhl to ask him to brief Secretary Pompeo in the statement he was negotiating with President Zelensky. The aim of, quote, "making the boss happy enough to authorize an invitation."
Ambassador Sondland wrote to him, quote, "Kurt and I negotiated a statement from Ze to be delivered for our review in a day or two. The contents will hopefully make the boss happy enough to authorize an invitation."
Now, State Department Executive Secretary Lisa Kenna answered Ambassador Sondland several hours later letting him know that she'd pass that information on to Secretary Pompeo. Let's consider and pause here, why this message to Mr. Brechbuhl with the State Department continues to conceal is important.
In this exchange, Ambassador Sondland told Brechbuhl that he had negotiated a deal to get President Zelensky to make a statement and that Sondland hope that the promise statement would, "make the boss happy enough to authorize an invitation." It shows that senior State Department leadership, including Secretary Pompeo, were quite aware of the deal to trade an invitation to the White House for a statement from President Zelensky.
Indeed, Ambassador Sondland confirmed that he kept them in the loop. Here's his testimony.
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SONDLAND: We kept the leadership of the State Department and the NSC informed of our activities and that included communications with Secretary of State Pompeo, his counselor Ulrich Brechbuhl, his executive secretary
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Lisa Kenna and also communications with Ambassador Bolton, Dr. Hill, Mr. Morrison and their staff at the NSC. They knew what we were doing and why.
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LOFGREN: Eight other witnesses were also ordered not to testify as part of the House's impeachment inquiry. But those eight witnesses came forward anyway despite the President's efforts to prevent them from testifying.
All of the following witnesses were told not to testify, Ambassador Marie Yovanovitch, Ambassador Gordon Sondland, Deputy Assistant Secretary of State George Kent, Ambassador Bill Taylor, Deputy Assistant Secretary of Defense Laura Cooper, Deputy Associate Director at OMB Mark Sandy, State Department Official Catherine Croft and State Department Official Christopher Anderson, each of these eight witnesses followed the law. They abide House's subpoenas and they testified before the House.
In all, we know that by issuing the blanket order and later specific orders, President Trump prevent at least 12 current or former administration officials from testifying during the House's impeachment inquiry. He specifically forced nine of those witnesses to defy duly authorized subpoenas.
The facts are straightforward and they're not in dispute. First, in the history of our republic, no president ever dared to issue an order to prevent even a single government witness from testifying in an impeachment inquiry.
Second, President Trump abused the power of his office by using his official power in an attempt to prevent every single person who works in the Executive Branch from testifying before the House.
Finally, President Trump's orders in fact prevented the House from obtaining key witness testimony from at least 12 current or former government officials.
President Trump's orders were clear. They were categorical, they were indiscriminate, and they were wrong. They prevented key government witnesses from testifying. There is no doubt. That's obstruction, plain and simple.
DEMINGS: Now, let us turn to some final of facts. In a further effort to silence his administration, President Trump engaged in a braising effort to publicly attack and intimidate the dedicated public servants who came forward to testify.
To be clear, these witnesses didn't seek the spotlight in this way. For years, they had quietly and effectively performed their duties on behalf of our national interest and on behalf of the American people. Why would they seek the spotlight in this way knowing that the President of the United States would lead the chorus of attacks against them? And he did.
In response, the President issued threats, openly discussed possible retaliation, attacked their character and patriotism, and subjected them to mockery and other insults. The President.
The President's attacks were broadcast to millions of Americans, including the witnesses, their families, their friends and their coworkers. This campaign of intimidation risks discouraging witnesses from coming forward voluntarily or complying with mandatory subpoenas for documents and testimonies.
And as we all know, witness intimidation is a federal crime. There is simply not enough time today to walk through each of the President's attacks on the House's witnesses. But let's talk about a few.
As I am sure my colleagues recall, the House subpoenaed Ambassador Marie Yovanovitch for public testimony.
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Ambassador Yovanovitch's first tour was in Somalia, an increasingly dangerous place as that country's Civil War progress.
During a different tour, when Ambassador Yovanovitch helped to open a U.S. Embassy during which time the embassy was attacked by a gunman who sprayed the embassy building with gunfire. Ambassador Yovanovitch has also served as an Ambassador to Armenia and served the U.S. Embassy in Moscow.
As chairman Schiff said earlier, she has served in some dangerous places around the world on behalf of our interest and the interest of the American people. President Trump's Under Secretary of State for Political Affairs described Ambassador Yovanovitch as, and I quote, "an exceptional officer during exceptional work at a critical embassy in Kyiv."
But during Ambassador Yovanovitch's public testimony, President Trump tweeted, everywhere Marie Yovanovitch went turned bad. She started off in Somalia. How did that go? Then fast forward to Ukraine where the new Ukrainian president spoke unfavorably about her in my second phone call with him. It is a U.S. President's outright or absolute right to appoint ambassadors.
In that same hearing, Chairman Schiff asked Ambassador Yovanovitch for her reactions to the President's attacks during her testimony before the House. Let's listen to that exchange.
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SCHIFF: Ambassador, you've shown the courage to come forward today to testify. Notwithstanding the fact you are urged by the White House or State Department not to. Notwithstanding the fact that as you testified earlier, the President implicitly threatened you in that call record.
And now, the President in real time is attacking you. What effect do you think that has on other witnesses' willingness to come forward and expose wrongdoing?
YOVANOVITCH: Well, it's very intimidating.
SCHIFF: It's designed to intimidate, is it not?
YOVANOVITCH: I mean, I can't speak to what the President is trying to do but I think the effect is to be intimidating.
SCHIFF: Well, I want to let you know, Ambassador, that some of us here take witness intimidation very, very seriously.
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DEMINGS: The House also subpoenaed the public testimony of Ambassador William B. Taylor, another career public servant who graduated at the top of his class from West Point, served as an infantry commander in Vietnam and earned a Bronze Star and an Air Medal with a V device for valor.
Yes, yet shortly after Ambassador Taylor came forward to Congress, President Trump publicly referred to him as a never-Trumper without any basis. And then when a reporter noted that Secretary of State Mike Pompeo had hired Ambassador Taylor, President Trump responded, and I quote, "hey, everybody makes mistakes." He then had the following exchange about Ambassador Taylor. Let's listen.
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TRUMP: He's a never-Trumper. His lawyer is the head of the never- Trumpers. They're a dying breed but they're still there.
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DEMINGS: Ambassador Taylor has since stepped down from his position as our chief diplomat in Ukraine.
In addition to his relentless attack on witnesses who testified in connection to the House's impeachment inquiry, the President also repeatedly threatened and attacked the member of the intelligence community who filed the anonymous whistleblower complaint. In more than 100 statements about the whistleblower, over a period of just two months, the President publicly questioned the whistleblower's motives and
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disputed the accuracy of the whistleblower's account.
But most disturbing, President Trump issued a threat against the whistleblower and those who provided information to the whistleblower. Let's listen.
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TRUMP: I want to know who's the person that gave the whistleblower -- who's the person that gave the whistleblower the information. Because that's close to a spy. You know what we used to do in the old days when we were smart, right? With spies and treason, right? We used to handle it a little differently than we do now.
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DEMINGS: The President's need to conceal his actions was so extreme that he even attacked the credibility of those witnesses who served our country in combat. This included active-duty military personnel and veterans who earned the Purple Heart and Bronze Star, among other battlefield recognition.
But President Trump showed altered disregard for such patriotism. For example, President Trump attacked Lieutenant Colonel Vindman during his testimony on November 19 seeking to question his loyalty to the United States. The President retweeted, Lieutenant Colonel Vindman was offered the position of defense minister for the Ukrainian government three times. Lieutenant Colonel Vindman, the National Security Director for Ukraine, has been an active duty Army officer for more than 20 years. Lieutenant Colonel Vindman earned a Purple Heart for wounds he sustained in an improvised explosive attack or device in Iraq.
President Trump's campaign of witness intimidation is reprehensible, debases the presidency, and was part of his effort to obstruct the impeachment inquiry. The fact that it is the President of the United States making these threats tells us something. It tells us that the President desperately wanted to keep witnesses from testifying and thus further obstruct Congress' inquiry.
Senators, we cannot and we must not condone President Trump's attacks on whistleblowers and witnesses, people who truly have the ability to put our country first.
NADLER: Now that we have carefully reviewed the facts and have described the President's categorical obstruction of Congress, we address questions of law.
This discussion need not be abstract. The President's obstruction impacts the Senate directly. It impacts the constituents you represent. It impacts you because your job as a member of Congress is to hold the Executive Branch in check. This is true no matter who occupies the White House or which party controls the House or Senate.
And to further the president, any president departs from the law and the Constitution, the more important it is for you to do your job. I suspect that there is common ground here. We all know that in order for Congress to do its work, we must have information.
What is reasonable policy? What is the administration doing? Do we support it? Should we oppose it? Should we enact legislation to correct the problem?
Asking questions, gathering information, making decisions based on the answers, this is one of the fundamental functions of Congress. I suspect that we agree on this as well. Our ability to do that work depends on our gathering information. It depends on the power of the congressional subpoena.
Even when you make a plate request the information from the friendly administration, that request is backed by the threat of a subpoena. And although the power of the congressional subpoena has been affirmed repeatedly by the courts, enshrined in the rules of the House and Senate, and respected by Executive Branch agencies for centuries, if the president chooses to ignore
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subpoenas, our powers of branch of government, our ability to do our jobs, our ability to keep an administration in check, and our ability to make sure that the American people are represented by a Congress and not just by a president is diminished. Please know that we are not talking about a disagreement over the last few documents at the end of a long production schedule. We are talking about a direct order from the President of the United States to completely disregard all our subpoenas, to deny us all information the President wants to keep secret.
This is an order to deprive Congress of our ability to hold an administration accountable. It is a bit too new to Congress to render the president all powerful since Congress cannot have any -- could not of any information the president didn't want us to have. Without information, we cannot act.
And so, we must ask, is there a consequence for a president who defies our subpoenas absolutely who says to all branches of the administration, do not obey a single congressional subpoena categorically without knowing the subject of the subpoena, just never answer a congressional subpoena, who denies Congress the right to any information necessary to challenge his power?
Would Madison, Hamilton, and Washington support removing a president who declares that the Constitution let's him do whatever he wants and brazenly adds that he can ignore any effort to investigate even when backed by subpoenas that the law requires them to obey?
The answer to all these questions is a resounding yes. But before diving in, I'd like to set the historical scene. The framers were wise and so they worry that presidents would abuse their power for personal gain. They fear that someday, a president might mistake himself for a king whose decisions cannot be questioned, whose conduct cannot be investigated, whose power transcends the rule of law.
Such would be King would certainly think things like, quote, "I have the right to do whatever I want as president." He might believe that it is, quote, "illegitimate for anyone to investigate him." Of course, not even the framers could have imagined that a president would say these things out loud.
A president with this view of raw power would attack anyone who tried to hold them to account branding them, quote, "human scam" and, quote, "the enemy of the people." He would argue that courts have no power to enforce subpoenas against him. He would conscript his allies to ridicule Congress. He would harass witnesses who testified against him declaring it was disloyal to question his conduct. He would use the powers of his higher office to sabotage our system of checks and balances. All of this we have seen in the few years, indeed in the last few months.
The framers wrote the impeachment clause to protect the American people from such a president. The impeachment clause exists to protect our freedom and our democracy in between elections. It exists to remind presidents that they serve the public not the other way around. It is a reminder to presidents the answer to something greater than themselves. It confirms that nobody in America is above the law, not even the president.
But as we have discussed, the impeachment power does not magically protect us when a president commits high crimes and misdemeanors. In Benjamin Franklin's words to framers leftist in Republic, if we can keep it.
Now, one way we can uphold that promise is to do our duty as elected members of Congress to hold the Executive Branch in check. That responsibility is part of the constitutional design. The burden is ours regardless of our political party no matter who sits in the Oval Office.
In the ordinary course when we do our jobs, we do our nation service by holding the Executive Branch, both its political leadership and its professional core, accountable to the people for its actions. And when the president's conduct exceeds the usual constitutional safeguards, it finds -- it falls on the House to investigate presidential wrongdoing and if necessary, to improve -- to approve articles of impeachment. It then falls on the Senate to judge, convict and remove presidents who threaten the Constitution.
This entire framework depends in Congress' ability to discover and then to thoroughly investigate presidential malfeasance.
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If presidents could abuse their power and then conceal all the evidence from Congress, the impeachment clause would be a nullity. We, the people, would lose a vital protection.
That is why officials throughout history have repeatedly recognized that subpoenas served in the impeachment inquiry must be obeyed, including by the President. It is widely for President Trump, only a single official in American history has ever defied an impeachment subpoena and that is why that official Richard Nixon faced an article of impeachment for doing so.
As the House Judiciary Committee reasoned in its analysis of Nixon's obstruction, quote, "unless the defiance of the House subpoenas is considered grounds for impeachment, it is difficult to conceive of any president acknowledging that he is obligated to supply the relevant evidence necessary for Congress to exercise its constitutional responsibility in an impeachment proceeding."
Representative Robert McQuarrie, a Republican from Illinois, explained the importance of this article of impeachment for our separation of powers. He said, if we refuse to recommend that the president should be impeached because of his defiance of the Congress with respect to the subpoenas that we have issued, the future respondents will be in the position where they can determine themselves what they are going to provide in an impeachment inquiry and what they're not going to provide and this is -- and this would be particularly so in the case of an inquiry directed toward the President of United States. So, it not only affects this president but future president -- future presidents.
And that's where we find ourselves now but with even greater force. President Nixon authorized other Executive Branch officials and agencies to honor legal -- to honor their legal obligations. He also turned over many of his own documents.
President Trump, in contrast, directed his entire administration, every agency, every office and every official not to cooperate with the impeachment inquiry. As a Nixon's case, President Trump's obstruction is merely an extension of his coverup. As a Nixon's case, President Trump's obstruction reveals consciousness of guilt.
Innocent people do not act this way. They do not hide all the evidence. And like Nixon, President Trump is offered an assortment of arguments to excuse his obstruction. But as it was true in Nixon's case, none of these excuses can succeed.
At bottom, these arguments amount to a claim that the President can dictate the terms of his own impeachment inquiry. President Trump's lawyers may insist that his grounds to defying Congress are unique and limited, that they only apply here just this one time, that it was the House not the President that broke (ph) from president, that he would gladly comply with subpoenas if only the House would do as he insists. That is pure fantasy.
The President's arguments are not a one-ticket ride -- one-ride ticket. They're not unique to these facts. Unless they are firmly and finally rejected here, these bogus excuses will reappear every time Congress investigates any president for serious abuses of power every single time.
It will constitute a playbook for ignoring oversight available to all future presidents, Democratic or Republican. These arguments are not consistent with the Constitution. They're loyally window dressing for an unprecedented dangerous power grab.
Plenty of presidents and judges have complained about impeachment inquiries declaring their own innocence, attacking the House's motives and insisting that due process entitle them to all sorts of things.
But no president or judge except Richard Nixon has ever defied subpoenas on that basis and no president or judge, none, has ever directed others to defy subpoenas categorically across the board. They will eventually recognize their obligations under the law. President trump stands alone.
And if President Trump is permitted to defy our subpoenas here in the impeachment inquiry when the courts have said the Congressional power of inquiry, is that its highest, imagine what future presidents will do when we attempt to conduct routine oversight.
President Trump is the first leader of this nation to declare that nobody can investigate him for official misconduct except on his own terms. In word and in deed, President Trump has declared himself above the law. He has done so because he is guilty and wishes to conceal as much of the evidence from the American people and from this body as he can. And that he must not succeed.
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If President Trump is allowed to remain in office after this conduct, historians will mark the date that this Senate allowed this president to break one of our mightiest defenses against tyranny. They will wonder why Congress so readily surrendered one of its core constitutional powers. They will wonder why Congress admitted that a president can get away with anything, can violate any constitutional rule, any liberty, any request for information and get away with it simply by saying, I don't have to answer your questions. Congress has no power to make me answer questions about my conduct.
That's what is at stake. Future people will despair that future presidents can abuse their power without fear of consequential constraint.
Let's begin with a legal premise of the second article of impeachment. Congress has the power to investigate presidents for official misconduct. This premise is indisputable.
Article I of the Constitution, All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Each House may determine the rules of its own proceedings.
Our investigations are grounded in Article I of the Constitution, which grants Congress all legislative powers and authorizes each House to determine its own rules. As the Supreme Court has explained, the Constitution thus vests the House and the Senate with a power of inquiry that is, and I quote, "penetrating and far reaching" close quote.
Moreover, Congress can effectuate that power of inquiry by issuing subpoenas commending the recipient to provide documents or to testify under oath. Compliance with subpoenas is mandatory. It's not at the option of the executive or the president.
As the Supreme Court has explained, quote, "It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify with respect to matters within the province of proper investigation."
More recently, United States District Judge Ketanji Brown Jackson has elaborated, quote, "blatant defiance of Congress' centuries-old power to compel the performance of witnesses is not an abstract duty -- injury nor is it a mere banal insult to our democracy. It is an affront to the mechanism for curbing abuses of power the Framers carefully crafted for our protection, and, thereby, recalcitrant witnesses actually undermine the broader interests of the People of United States."
In recognition of the important role that congressional inquiries play in protecting our democracy and in guarding the American people, it is unlawful to obstruct them. Of course, while Congress investigates many issues, one of the most important is misconduct in the Executive Branch.
There is a long history of congressional investigations into the Executive Branch. To name a few especially famous cases Congress has investigated, claims that President Lincoln mishandled Civil War military strategy, the infamous Teapot Dome scandal under President Harding, President Nixon's involvement in the Watergate scandal, President Reagan's involvement in the Iran-Contra Affair, President Clinton's real estate dealings and the Monica Lewinsky scandal, warrantless wiretapping under President George Bush, attacks on American personnel in Benghazi under President Obama.
Since the dawn of the Republic, presidents have recognized Congress' power to investigate the Executive Branch. Even in sensitive investigations involving national security and foreign policy, presidents should provide the Congress with access to senior officials and important documents.
For example, in the Iran-Contra inquiry President Reagan's former National Security Adviser Oliver North and the former Assistant to the President for National Security Affairs John Poindexter testified before Congress. President Reagan also produced relevant excerpts of his personal diaries to Congress.
During the Clinton administration, Congress obtained testimony from top advisers, including the President's Chief of Staff Mack McLarty and Chief of Staff Erskine Bowles, White House counsel Bernie Nussbaum and White House counsel Jack Quinn.
In the Benghazi investigation, President Obama made many of his top aides available for transcribed interviews, including National Security Adviser Susan Rice and Deputy National Security Adviser for Strategic Communications Benjamin Rhodes. The Obama administration, in that case, also
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produced more than 75,000 pages of documents, including 1,450 pages of White House emails with communications of senior officials on the National Security Council.
To be sure, certain House Republicans complained loudly that the Obama administration's response to the Benghazi investigation was insufficient. Just imagine how they would have reacted if President Obama had ordered total defiance of all subpoenas. There would have been outrage. Why? Because Congress unquestionably has the authority to investigate presidential conduct.
Now, not only does Congress have the power to investigate the executive but as we have discussed Article I of the Constitution, it gives the House the sole power of impeachment. The framers intended this power to be an essential check on out-of-control presidents, but it does not work automatically.
The House must investigate, question witnesses and review documents. Only then can it decide whether to approve or not approve articles of impeachment. Therefore, when the House determines that the president may have committed high crimes and misdemeanors, it has the constitutional duty to investigate his conduct. In such cases, the House acts not only pursuant to its ordinary legislative authority but also serves as a grand inquest of the nation because an impeachment inquiry wheels one of the greatest powers in the Constitution, a power that exists specifically to constrain presidents, it subpoenas are backed with the full force of the impeachment clause. They cannot be thwarted by ordinary executive privileges or ordinary objections.
It is, therefore, presumed as President Polk conceded over 150 years ago that, quote, "All the archives and papers of the Executive Departments, public or private, would be subject to inspection" and, quote, "Every facility in the power of the Executive would be afforded to enable the House to prosecute the investigation." What investigation? The impeachment investigation of President Polk.
President Polk's statement, which we will return to, was no outlier. Presidents have long understood that they must comply with impeachment inquiries. Consistent with this understanding in the history of the Republic, no president has ever claimed unilateral prerogative to categorically defy a House impeachment inquiry.
On the contrary, every president facing this issue has agreed that Congress possesses a broad and penetrating power of inquiry when investigating grounds for impeachment. This directly refutes President Trump's claim that he obstructed Congress to protect the Office of the President.
Every prior occupant of his office has disavowed the limitless power that he asserts. That matters. As the Supreme Court explained just a few years ago, and I quote, "long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions regulating the relationship between Congress and the President."
So, let's take a quick tour of the historical record. To begin at the beginning, a sweltering summer in Philadelphia 1787, the framers discussed at length the balance between presidents and Congress. Remember, they had just fought a bloody war to rid themselves of a tyrant and they were very conscious, they didn't want another tyrant.
When impeachment came up, they agreed it would limit the president's authority. But a strong majority of framers saw that as a virtue, not a vice. They wanted to empower the president but also to keep his power from getting out of hand.
Yet, impeachment could not serve that role if the House were unable to investigate the president for suspected high crimes and misdemeanors. This is recognized early on starting with the very first president.
In 1796, the House requested that President Washington to provide with sensitive diplomatic materials relating to the hugely unpopular Jay Treaty with Great Britain. President Washington declined since this request intruded upon his executive functions.
But Washington agreed that impeachment would change his calculus. In the ensuing debates, it was noted on the House floor that Washington had admitted, quote, "that where the House expresses an intention to impeach, the right to demand from the Executive all papers and information in his possession belongs to it." All papers and information.
This was only the first of many references to that point in our constitutional tradition. For example, less than 40 years later, in 1833,
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Justice Joseph Story remarked upon the dangers of presidential obstruction. He wrote, the power of impeachment will generally be applied to persons holding high offices under the government, and it is of great consequence that the President should not have the power of preventing a thorough investigation of their own conduct.
Consistent with this teaching, President Polk later offered his clear and insightful explanation of why presidents must honor all impeachment subpoenas. As I mentioned just moments ago, he said, and I quote, "It may be alleged that the power of impeachment belongs to the House of Representatives and that with a view to the exercise of this power, that House has the right to investigate the conduct of all public officers under the government. This is cheerfully admitted."
Decades later during our first presidential impeachment inquiry, President Andrew Johnson recognized Congress' power to thoroughly investigate him and his Executive Branch subordinates. In 1867, for example, the House Judiciary Committee obtained executive and presidential records.
The committee interviewed cabinet officers and presidential aides about cabinet meetings and private conversations with the president by his top aides and cabinet officials. And multiple witnesses, moreover, answered questions about the opinions of the president, statements made by the president, and the advice given to the president.
There is no evidence that Johnson ever asserted any privilege to prevent disclosure of presidential conversations to the committee or failed to comply with any of the committee's requests. Thus, in the first 80 years of the Republic, Presidents Washington, Polk and Johnson, along with members and committees of the House and the Supreme Court Justice, all recognized that Congress is authorized by the Constitution to investigate for impeachment and that presidents are obligated to give all information requested.
President Trump's attempt to stonewall Congress would have shocked those presidents. With only a few exceptions, invocations of the impeachment power subsided from 1868 to 1972.
Yet, even in that period, while objecting to ordinary legislative oversight, Presidents Ulysses Grant, Grover Cleveland and Theodore Roosevelt each noted that Congress could obtain key Executive Branch documents in an impeachment inquiry. It thus confirmed yet again that impeachment is different. Under the Constitution, it requires full compliance. Then came Watergate, when President Nixon abused the powers of his office to undermine his political opponents. But even Nixon, even Nixon understood that he must comply with subpoenas for information relating to his misconduct.
Thus, he stated in March 1973 regarding the Senate's Watergate investigation, and I quote, "All members of the White House staff will appear voluntarily when requested by the committee. They will testify under oath and they will answer fully all questions."
As a result, many senior White House officials testified, including White House counsel John Dean, White House Chief of Staff H.R. Haldeman, and Deputy Assistant to the President Alexander Butterfield. In addition, Nixon produced many documents in response to congressional subpoenas, including notes from meetings with the president.
As the House Judiciary Committee explained at that time, 69 officials have been subjected to impeachment investigations throughout American history. Yet, and I quote, "with the possible exception of one minor official who invoked the privilege against self-incrimination, not one of them challenged the power the committee conducting the investigation compel the production of evidence is deemed necessary."
President Nixon's production of records was incomplete however in a very important respect. He did not produce tape recordings of key Oval Office conversations. In response, the House Judiciary Committee approved an article of impeachment against the President for obstruction of Congress.
Twenty-four years later, the House undertook impeachment proceedings against President Clinton. Consistent with president and entirely unlike President Trump, Clinton pledged to cooperate fully with the impeachment investigations. Ultimately, he provided written responses to 81 interrogatories from the Judiciary Committee and three witnesses provided testimony during the Senate trial.
As this review of the historical record proves, presidents have long recognized that the Constitution compels them to honor subpoenas served by the House in an impeachment inquiry. Stated simply, President Trump's categorical blockade of the House, his refusal to honor any subpoenas,
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has ordered that all subpoenas, without even knowing what they were, all subpoenas be defied, has no analog in the history of the Republic.
Nothing even comes close. He's engaged in obstruction that several of his predecessors have expressly said is forbidden and that led to an article of impeachment against Nixon.
President Trump is an outlier. He's the first and only president ever to declare himself unaccountable and to ignore subpoenas backed by the Constitution's impeachment power. If he is not removed from office, if he is permitted to defy the Congress entirely, categorical, to say that subpoenas from Congress in impeachment inquiry are nonsense, then we will have lost, the House would have lost, the Senate certainly would have lost, all power to hold any president accountable.
This is a determination by President Trump that he wants to be all- powerful. He does not have to respect the Congress. He does not have to respect the representatives of the people. Only his will goes. He is a dictator. This must not stand and that is why another reason he must be removed from office.
LOFGREN: Chief Justice, Senators, we've now shown how the extreme measures President Trump took to conceal evidence and block witnesses, defies the Constitution in centuries of historical practice. But there's more to the story and it only further undermines President Trump's case.
The position he's taken is not only baseless as a historical matter, it's also inconsistent with the Justice Department's stated reason for refusing to indict or prosecute presidents. Now, the Department of Justice's unwillingness to indict a sitting president creates a danger that the president can't be held accountable by anyone even for grave misconduct.
To its credit, the Department of Justice recognized that risk. In its view, quote, "the constitutionally specified impeachment process ensures that the immunity would not place the president above the law." This argument by the Justice Department is really important.
In justifying its view that a president can't be held criminally liable while in office, DOJ relies on Congress' ability to impeach and remove a president. But the Justice Department's rationale, it falls apart if the constitutionally specified impeachment process can't function because the president himself has obstructed it.
The Supreme Court correctly noted in Nixon versus Fitzgerald, and that's not Richard Nixon, it's Judge Nixon, that vigilant oversight by Congress is necessary to, quote, "make credible the threat of impeachment." The president should not be treated as immune for criminal liability because he's subject to impeachment but then be allowed to sabotage the impeachment process itself, that's what this president did. That places him dangerously above the law and beyond the separation of powers.
Presidents can't be above the law. Presidents, like everyone else, must abase subpoenas served in an impeachment inquiry. In 1880, the Supreme Court explained, quote, "where the question of such impeachment is before either House of Congress acting in its appropriate sphere on that subject, we see no reason to doubt the right to compel the attendance of witnesses, and their answer to proper questions, in the same manner and by the use of the same means that courts of justice can in like cases."
Almost a century later, Judge John Sirica's influential opinion on the Watergate roadmap in 1974 emphasized the special weight assigned to Congress in an impeachment. He wrote, it should not be forgotten that we deal in a matter of the most critical moment to the Nation, an impeachment investigation involving the President of the United States.
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It would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information.
That same year, the Supreme Court decided the famous case of Nixon versus the United States, that's President Nixon. I was standing just across the street from the court when the case was handed down and I remember seeing the reporters running down those marble steps clutching the court's unanimous decision.
The decision forced the release of key Oval Office tapes that President Nixon had tried to cover up by invoking executive privilege. In short order, it led to the resignation of President Nixon.
The plaintiff in that case was actually the special prosecutor Leon Jaworski who had been appointed to investigate the Watergate burglary and who issued subpoenas for the Nixon tapes. The Supreme Court upheld these subpoenas against President Nixon's claim of executive privilege. It reasoned that his asserted interest in confidentiality could not overcome the constitutionally grounded interest in the fair administration of criminal justice.
Now, in reaching that conclusion, the court said this, quote, "the ends of criminal justice would be defeated if judgments were to be found on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all facts within the framework of the rules of evidence."
That reason, which was a unanimous decision by the Supreme Court in the Nixon tapes case, applies with full force and did greater force to impeachments. The House Judiciary Committee recognized that when it approved an article of impeachment against President Nixon for obstruction of Congress.
It reasoned as follows, quote, "if a generalize presidential interest in confidentiality cannot prevail over, quote, 'the fundamental demand' of due process of law in the fair administration of justice, then neither can it be permitted to prevail over the fundamental need to obtain all the relevant facts in the impeachment process."
Whatever the limits of legislative power in other contexts and whatever need may otherwise exist for preserving the confidentiality of presidential conversations, in the context of an impeachment, proceeding the balance was struck in the favor of the power of inquiry.
Accordingly, President Trump's conduct is unprecedented and actually offensive to the presidents and it is inconsistent with his duty, his oath to faithfully execute the laws. Now, that obligation, to see that the laws are faithfully executed, is not just about enforcing statutes. It's a duty to be faithful to the Constitution. Every part of it as stated in the text and understood across history and it is a duty he has violated by obstructing Congress here.
I want to make one additional point regarding the judiciary. Now, parents -- presidents have an obligation to comply with the Congress' impeachment inquiry regardless of whether a court has reviewed the request. We make this point even though, I think, President Trump's lawyers would be making mistakes to raise it.
After all, the President's lawyers can't have it both ways. They can't argue here that we must go to court and then argue in court that our case can't be heard.
Anyway, the House's sole power of impeachment wouldn't be sole or much of a power if the House could not investigate the president at all without spending years litigating before the third branch of government. It would frustrate the Constitution for the House to depend entirely on the judiciary to advance its impeachment-related investigatory powers.
Consistent with this understanding, before President Trump, the House had never before filed a lawsuit to require testimony or documents in a presidential impeachment. We didn't have to.
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No president ever issued a blanket ban on compliance with House subpoenas or challenge the House to find a way around his unlawful order.
In this strange and unprecedented situation, it's appropriate for Congress to reach its own judgment that the President is obstructing the exercise of its constitutional power. As then Representative Lindsey Graham explained in 1998 during the Clinton proceedings where we served together on the Judiciary Committee, quote, "The day Richard Nixon failed to answer that subpoena is the day he was subject to impeachment because he took the power from Congress over the impeachment process away from Congress, and he became the judge and jury."
There's still another reason why it would be wrong and dangerous to insist that the House cannot take action without involving the courts and that reason is delay. Consider just three lawsuits filed by House Committees over the past two decades to enforce subpoenas against senior Executive Branch officials.
Now, I served on the Judiciary Committee. When we decided that we needed to hear from former White House Counsel Harriet Miers, in committee on the Judiciary versus Miers, the Judiciary Committee tried to enforce a subpoena that required her to give testimony about the contentious firing of nine U.S. attorneys.
The Committee served a subpoena in 2007. We negotiated as courts indicate you should with the White House and we finally filed suit in March of 2008. We won a favorable District Court order in July 2008. But we didn't receive testimony from Miers until June of 2009. That was two years. In Committee on Oversight and Reform versus Holder, the Committee on Oversight and Reform tried to force Attorney General Eric Holder to produce additional documents relating to the so-called Operation Fast and Furious.
The Committee served the subpoena on October 2011. They filed suit August 2012. They won a series of orders requiring productions of documents but the first such order did not issue until August 2014, nearly three years.
In Committee on the Judiciary versus McGahn, the House Judiciary Committee sought to enforce a subpoena to require White House Counsel Don McGahn to give testimony regarding matters relating to the special counsel's investigation.
Now, we serve that subpoena in April of last year. We filed suit in August of last year. We won a favorable District Court order in November of last year. The Court of Appeals has stated that ruling and didn't hear arguments until early this month with an opinion and potentially, unlikely, Supreme Court application likely to follow. We will not have an answer likely this year.
Sometimes, courts move quickly but here they haven't, not at all. Even when the House urges expedited action, it usually takes years, not months to get evidence through judicial proceedings.
Now, the president can't put off impeachment for years by ordering total defiance of the House and then insists the court go to court even as he argues that they can't go to court. That's especially true where the president just -- doesn't just raise one or two objections to specific subpoenas but orders a blanket government-wide coverup of all evidence.
That kind of order makes this clear, the President sees himself completely immune from any accountability above the law. It reveals his pretentious really to absolute power. It confirms he must be removed from office.
Here's the key point, President Trump's obstruction of Congress is not merely unprecedented and wrong, it's also a high crime and misdemeanor as the framers used and understood that phrase warranting his immediate removal from office.
To see why, let's refer -- return to first principles. As the framers deliberated in Philadelphia, George Mason posed a profound question, shall any man be above justice?
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