[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
LESSONS FROM THE MUELLER REPORT, PART III:
``CONSTITUTIONAL PROCESSES FOR ADDRESSING
PRESIDENTIAL MISCONDUCT''
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
FRIDAY, JULY 12, 2019
__________
Serial No. 116-34
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
44-864 WASHINGTON : 2021
--------------------------------------------------------------------------------------
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking
SHEILA JACKSON LEE, Texas Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York MARTHA ROBY, Alabama
DAVID N. CICILLINE, Rhode Island MATT GAETZ, Florida
ERIC SWALWELL, California MIKE JOHNSON, Louisiana
TED LIEU, California ANDY BIGGS, Arizona
JAMIE RASKIN, Maryland TOM MCCLINTOCK, California
PRAMILA JAYAPAL, Washington DEBBIE LESKO, Arizona
VAL BUTLER DEMINGS, Florida GUY RESCHENTHALER, Pennsylvania
J. LUIS CORREA, California BEN CLINE, Virginia
SYLVIA R. GARCIA, Texas KELLY ARMSTRONG, North Dakota
JOE NEGUSE, Colorado W. GREGORY STEUBE, Florida
LUCY MCBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
PERRY APELBAUM, Majority Staff Director & Chief of Staff
BRENDAN BELAIR, Minority Staff Director
C O N T E N T S
----------
Friday, July 12, 2019
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Doug Collins, Ranking Member, Committee on the
Judiciary...................................................... 3
WITNESSES
Caroline Fredrickson, President, American Constitution Society... 6
Oral Testimony................................................. 6
Prepared Testimony............................................. 8
John Eastman, Henry Salvatori Professor of Law and Community
Service and Director, Center for Constitutional Jurisprudence,
Chapman University, Fowler School of Law....................... 15
Oral Testimony................................................. 15
Prepared Testimony............................................. 17
Michael Gerhardt, Samuel Ashe Distinguished Professor in
Constitutional Law, The University of North Carolina School of
Law............................................................ 23
Oral Testimony................................................. 23
Prepared Testimony............................................. 25
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE RECORD
A Statement by Former Federal Prosecutors dated May 22, 2019
submitted by The Honorable Sheila Jackson Lee.................. 38
APPENDIX
A Statement For the Record submitted by The Honorable Sheila
Jackson Lee.................................................... 97
LESSONS FROM THE MUELLER REPORT, PART III: ``CONSTITUTIONAL PROCESSES
FOR ADDRESSING PRESIDENTIAL MISCON-DUCT''
----------
Friday, July 12, 2019
House of Representatives
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to call, at 9:10 a.m., in Room
2141, Rayburn House Office Building, Hon. Jerrold Nadler
[chairman of the committee] presiding.
Present: Representatives Nadler, Lofgren, Jackson Lee,
Cohen, Johnson of Georgia, Deutch, Bass, Cicilline, Swalwell,
Lieu, Raskin, Jayapal, Demings, Scanlon, Garcia, Neguse,
Stanton, Dean, Mucarsel-Powell, Escobar, Collins, Gohmert,
Jordan, Gaetz, Johnson of Louisiana, Biggs, McClintock, Lesko,
Cline, Armstrong, and Steube.
Staff Present: Arya Hariharan, Deputy Chief Oversight
Counsel; David Greengrass, Senior Counsel; Lisette Morton,
Director Policy, Planning and Member Services; Madeline
Strasser, Chief Clerk; Moh Sharma, Member Services and Outreach
Advisor; Susan Jensen, Parliamentarian/Senior Counsel; Sophie
Brill, Counsel; Matt Morgan, Counsel; Brendan Belair, Minority
Staff Director; Bobby Parmiter, Minority Deputy Staff Director/
Chief Counsel; Jon Ferro, Minority Parliamentarian/General
Counsel; Paul Taylor, Minority Chief Counsel, Constitution
Subcommittee; and Andrea Woodard, Minority Professional Staff
Member.
Chairman Nadler. The Judiciary Committee will please come
to order. Without objection, the chair is authorized to declare
recesses of the Committee at any time.
We welcome everyone to today's hearing on Lessons from the
Mueller Report, Part III: Constitutional Processes for
Addressing Presidential Misconduct.
I will now recognize myself for an opening statement.
The title of today's hearing is Lessons from the Mueller
Report, Part III: Constitutional Processes for Addressing
Presidential Misconduct. As many of you may already know, the
subtitle is a quote taken directly from Volume II of the
Mueller report where the special counsel describes why he did
not reach a, quote, prosecutorial judgment, close quote,
regarding President Trump's conduct.
There the special counsel explained that as an attorney
operating within the Department of Justice, he is bound by
Department policy, including an Office of Legal Counsel opinion
that asserts that a President is immune from prosecution while
in office.
The special counsel, quote, recognized that a Federal
criminal accusation against a sitting President would place
burdens on the President's capacity to govern, close quote. Yet
the Mueller report also acknowledged that such an accusation
could, quote, potentially preempt constitutional processes for
addressing Presidential misconduct, close quote.
The special counsel's mention of these constitutional
processes should not be taken lightly. It goes to the heart of
Congress' role in our constitutional system of checks and
balances, and that is the subject of today's hearing.
As the Mueller report's frequent references to Congress
make clear, Congress has a role in investigating the potential
Presidential misconduct he uncovered so that it may determine
how best to exercise its article I authorities to Act as check
on the abuse or misuse of executive branch power.
In light of its jurisdiction and past precedent, this
Committee in particular has a constitutional duty to
investigate allegations of misconduct by executive branch
officials, including the President of the United States, and is
currently investigating allegations of abuse of power, public
corruption, and obstruction of justice within the Trump
Administration.
The purpose of this hearing is to examine the range of
constitutional remedies available for addressing Presidential
misconduct under its authority article I authorities. Today's
discussion will aid the Committee in determining the remedies
available to it as the investigation unfolds.
Under its article I authorities, Congress has a number of
responses to Presidential misconduct available to it. With
regard to the committee's responsibility to determine whether
to recommend Articles of Impeachment against the President,
Articles of Impeachment are already--I'm sorry--Articles of
Impeachment are under consideration as part of the committee's
investigation, although no final determination has made.
In addition, the Committee has the authority to recommend
its own Articles of Impeachment for consideration by the full
House of Representatives.
The Committee seeks documentary evidence and intends to
conduct hearings with Mr. McGahn and other critical witnesses
testifying before us. That is necessary to determine whether
the Committee should recommend Articles of Impeachment or any
other article I remedies, and, if so, in what form.
The Committee is also considering other responses to the
conduct under investigation. While censure of the President is
rare, Congress has previously passed measures expressing
disagreement with specific Presidential conduct. The Committee
is considering several pieces of legislation that would address
the allegations of misconduct uncovered by the special
counsel's investigation and other serious policy concerns
raised by the Mueller report.
Legislative proposals to determine misconduct described in
the Mueller report include measures that would increase
transparency with regard to White House communications
concerning law enforcement investigations. Those proposals also
include measures to impose additional safeguards to protect the
integrity and independence of future special counsel
investigations.
The Committee also has been referred proposals to amend the
Constitution to limit the scope of executive clemency and
legislation to increase transparency regarding Presidential
pardons, which responds to additional fact patterns described
in the report.
Volume I of the Mueller report also documented numerous
troubling contacts between the Trump campaign and individuals
associated with the Russian Government. As a result, several
Members have introduced legislation that would impose a duty on
campaigns to report their contacts with foreign governments.
With regard to possible criminal, civil, or administrative
referrals, the Justice Department has discretion as to whether
to Act upon a referral by Congress for prosecution or civil
enforcement. As even DOJ policy acknowledges, a President is
not immune from criminal prosecution after leaving office, and
I have introduced legislation that would toll the statute of
limitations on Federal offenses during a President's term in
office.
State authorities may also enforce State laws against the
President. The congressional referral process serves the
important purpose of creating a record and preserving evidence
for such time as prosecution, civil enforcement, or other
administrative response is feasible.
The Committee cannot, however, determine which article I
remedies are appropriate without first ascertaining all of the
relevant facts, and it cannot do so when the Administration
refuses to cooperate with legitimate congressional oversight.
That is why today's hearing will also give the Committee the
opportunity to consider the lawfulness of the Administration's
efforts to limit congressional oversight requests.
The Trump Administration has asserted that several current
and former government officials are, quote, absolutely immune,
unquote, from having to comply with congressional subpoenas for
testimony. However, the only court to ever consider such claims
rejected them in a case involving this very committee's past
effort to seek information about inappropriate White House
involvement in the firing of several U.S. attorneys.
In addition to asserting claims of absolute immunity, in
quotes, the White House has instructed several witnesses not to
comply with the committee's duly issued subpoenas for documents
or to answer questions on the basis that the documents and
answers are subject to executive privilege or would otherwise,
quote, implicate constitutionally based executive branch
confidentiality interests, close quote. Needless to say, these
assertions raise a host of problematic legal and constitutional
issues.
We have a distinguished panel of witnesses who can help us
sort through the various constitutional processes implicated by
the Mueller report, and I look forward to hearing their
testimony.
It is now my pleasure to recognize the Ranking Member of
the Judiciary Committee, the gentleman from Georgia, Mr.
Collins, for his opening statement.
Mr. Collins. Thank you, Mr. Chairman.
I was sorry for a moment--you ever have one of those
dreams, and there have been movies about this. You have a dream
that you wake up and you're back in school, you're back in high
school. For me, it was back in Ms. McCall's class in North Hall
High School government, American Government class. It's the
proper role of government and the different checks and balances
and what is Congress' role and what's the President's role and
what's the judiciary's role.
We can stop this hearing right now, because Chairman just
laid out all of the congressional routes and avenues that
Congress has to it. We're going to have a time--and I'm glad
the panel's here. Y'all are great folks. You've got scholarly
work. We're going to hear some wonderful things. We've stopped
right here. The problem is we're just dragging this on.
It's not that you want to come to impeachment. The chairman
talked about impeachment. If that's what you want to do, then
that's the part--we don't need to discuss is this a
constitutional right of Congress to do impeachment. That is
exactly what Congress' right to do. The constitutional
processes are very well addressed in the Constitution and in
our processes.
Instead, we come here today to have another almost
impeachment hearing but not an impeachment hearing. We want to
get facts; we want to do this. No, we're just waiting on and
on.
I'm trapped back in 9th grade. Ms. McCall was a wonderful
teacher, but I don't want to go back through it again. This is
Black and white. We know this problem here.
So, what are we not doing? Instead of this morning at 9
o'clock on a Friday, on a fly-out day, when we are actually--
Chairman and I have a bill on the floor here in just a little
bit that actually touches real people's lives in New York from
the 9/11 fund, which is a very valid thing that we need to be
doing.
Yesterday, we spent this entire Committee time arguing over
subpoenas and the discussion on the border, but yet why
wouldn't we use this 9 o'clock time to actually have a markup
of actual immigration bills such as mine that addresses border
issues? Now, you may discuss agree with what I propose, but
that's what markups are for. That's what actually is taking
this time. You have a bill. Put your bills up. Let's actually
get to actually solving real issues instead of having
theoretical college discussions on what is Congress' power. If
we don't know what Congress' power is now, this hearing is not
going to help us. In fact, it's ridiculous.
Legislation. I agree with Chairman. The chairman talked
about election--which actually the Mueller report actually
found election interference. Why aren't we putting those bills
forward instead of having our authority taken over by the House
Admin Committee on election bills because they don't want to
run it through here? Let's solve problems.
Process. Here's our biggest thing from yesterday. Maybe
this is it, is what the process is. We know what the process
is. The majority just can't find their way to figure out what
they want to do with that process.
So next week, we have Robert Mueller coming in here, and
the whole bottom row is disenfranchised, for the most part. I
guess there is some more negotiations going on. I've read that
in the media. Maybe I need to call Chairman Schiff and make
sure that that was okay, because they were undoubtedly driving
this ship, because they all get to talk next week. My side
doesn't and neither does the Democratic side get to talk. It
disenfranchises Florida, it disenfranchises North Dakota, it
disenfranchises everyone.
Instead of that, we're doing this. It just, frankly,
boggles the mind. I will say this: If there's anybody on this
Committee--and there are very wonderful people on both sides of
this Committee who are very, very intelligent. You can ask your
questions today, and we can talk about the constitutional
process, and you have got some great folks here to talk to you
about it.
In all due respect, we know what the constitutional process
is here. We just want to dance around it so we can keep another
round of stories going that the Judiciary Committee is pursuing
harassment and doing what it needs to do to make sure this
Administration is held accountable because we don't like him.
The economy is good, life is going better, and we don't
like it because we don't like the November 2016 election.
That's all this is about. We found that out again yesterday.
We're going to find it out again this morning.
So, for everybody who didn't get to the wonderful ability
to be in Ms. McCall's 9th grade American Government class at
North Hall High School, this may be your opportunity. Get your
hornbooks out, get your study books out. This is going to be a
constitutional process of what we already know is our
processes, but we're going to have some experts tell us what
those processes are.
Mr. Chairman, there's a lot of things you could be calling
today. This isn't one of them. Why don't we actually take up
real legislation to fix the border crisis, to fix the issues
that we all talk up about here? Instead, we have hearings.
Our body is to actually legislate. You and I have
legislated before. Let's start legislating and stop the show.
It is again--the popcorn is cooking. It's time, as I've always
said, let the show begin.
I yield back.
Chairman Nadler. Thank you, Mr. Collins.
I will now introduce today's witnesses.
Caroline Fredrickson is President of the American
Constitutional Society for Law and Policy. Previously, she was
the director of the American Civil Liberty Union's Washington
legislative office, held various positions in the Senate and
served in the Clinton Administration.
Ms. Fredrickson received her JD from Columbia Law School,
in my district, and her BA from Yale University.
John Eastman is the Henry Salvatori Professor of Law and
Community Service and the former dean at Chapman University's
Dale Fowler School of Law. He also serves as director of the
Center for Constitutional Jurisprudence at the Claremont
Institute. Previously, Dr. Eastman served as a law clerk to
Justice Clarence Thomas and to Judge J. Michael Luttig.
Dr. Eastman received his Ph.D. from Claremont Graduate
School, his JD from the University of Chicago Law School, and
his BA from the University of Dallas.
Michael Gerhardt is the Samuel Ashe Distinguished Professor
in Constitutional Law at the University of North Carolina
School of Law in Chapel Hill. Professor Gerhardt served on then
President-elect Bill Clinton's Justice Department transition
team and drafted the Administration's judicial selection
policy. He later served as special counsel to the Clinton
Administration and the Senate Judiciary Committee.
Professor Gerhardt received his JD from the University of
Chicago Law School, his MS from the London School of Economics,
and his BA from Yale University.
We welcome our distinguished witnesses, and we thank you
for participating in today's hearing.
Now if you would please rise, I'll begin by swearing you
in.
Would you raise your right hands?
Do you swear or affirm under penalty of perjury the
testimony you're about to give is true and correct, to the best
of your knowledge, information, and belief, so help you God?
Thank you.
Let the record show the witnesses answered in the
affirmative. Thank you and please be seated.
Please note that your written statements will be entered
into the record in its entirety. Accordingly, I ask that you
summarize your testimony in 5 minutes. To help you stay within
that time, there's a timing light on your table. When the light
switches from green to yellow, you have 1 minute to conclude
your testimony. When the light turns red, it signals your 5
minutes have expired.
Mr. Fredrickson, you may begin--Ms. Fredrickson, I'm sorry,
you may begin.
TESTIMONY OF CAROLINE FREDRICKSON
Ms. Fredrickson. Good morning. Thank you, Mr. Chairman.
My name is Caroline Fredrickson. I'm the President of the
American Constitution Society.
ACS has worked to promote informed public evaluation of the
investigations into Russian interference in the 2016 election.
It is with this background that I'm pleased to testify on the
constitutional processes for addressing Presidential
misconduct.
The final report issued by Special Counsel Robert Mueller
on Russian interference in the 2016 election reached several
chilling conclusions. Russia conducted wide-ranging attacks on
our Nation's election system. The Trump campaign had multiple
contacts with Russian nationals and did not report these
interactions to U.S. authorities. There's substantial evidence
that President Trump repeatedly attempted to thwart the
investigation, including through his unheeded requests to the
White House Counsel to fire the special counsel, create a false
paper trail, and make public misrepresentations regarding this
incident.
To say these findings are troubling is an understatement.
It is Congress' constitutional duty to respond. Close
examination of how Russia executed these interference
strategies is necessary to inform this Committee and other
committees of jurisdiction how to best tailor a wide range of
legislative initiatives on subjects from electronic data
protections to the provision of additional funding or resources
for U.S. agencies responsible for monitoring and investigating
foreign interference, to the integrity of special counsel
inquiries, to ensuring limits on political interference with
Department of Justice decisionmaking.
Although congressional oversight might eventually lead to
impeachment, it does not have to do so. The Supreme Court has
long held that Congress' oversight authorities are inherent in
the article I legislative powers. These authorities are broad
and encompass matters including, quote, the Administration of
existing laws, proposed or possibly needed statutes, and probes
to expose corruption, inefficiency, and waste. Indeed, the
Court has emphasized that oversight is essential to the conduct
of government.
This Committee has additional constitutional authorities to
conduct oversight, under article I, section 2, stating that the
House of Representatives has the sole power of impeachment.
Congressional investigations often lead to new laws, but
some investigations have led Congress to conclude that enacting
new laws is not necessary to address issues identified in the
inquiry. Sometimes congressional oversight has led to executive
branch reforms. Other times, inquiries into alleged
Administration corruption have resulted in resignations,
referrals, House or Senate resolutions memorializing
disapproval of Presidential or other Administration misconduct,
or impeachment proceedings.
Congressional oversight history is replete with
investigations into alleged White House misconduct that did not
involve impeachment. Many involved testimony from top White
House aides, including White House counsels, chiefs of staff to
the President, National Security Advisors, and top advisors to
the Vice President and First Lady. Impeachment proceedings have
begun without any formal vote of the House.
In addition, for Presidential impeachments, the Judiciary
Committee has conducted hearings to determine whether or not to
recommend articles to the full House. In the impeachment of
President Nixon, the House Judiciary Committee had been
considering Articles of Impeachment for close to a year before
there was a full House vote in February 1974.
With respect to the Mueller report and related information,
several key unanswered questions demand rigorous congressional
review. For example, how can Congress best protect our
elections from future attacks by Russia or other hostile
nations? Why did Trump campaign officials, associates, and
then-candidate Trump continue to have contact with Russians
after becoming aware of the hacking? Why did some lie to
investigators about these contacts, and why did they suggest
publicly that Trump, quote, had nothing to do with Russia? Does
the substantial evidence of obstruction of justice and other
misconduct merit further congressional action, including
legislation, censure, impeachment, or referrals? Finally, does
the content behind the Mueller report redactions and gaps in
evidence suggest any additional wrongdoing by the President or
others?
Congress' job has been made substantially harder by the
Administration's intransigence in resisting congressional
oversight at every turn, instructing officials to disobey
congressional subpoenas, and invoking broad claims of executive
privilege. It has gone so far as to claim that this Committee
even lacks authority to investigate these matters in the first
instance.
Given the gravity of the Mueller report conclusions and the
related information that has emerged publicly to date, a
failure by Congress to examine these issues would constitute an
abdication of Congress' fundamental constitutional oversight
responsibilities.
Thank you.
[The statement of Ms. Fredrickson follows:]
STATEMENT OF CAROLINE FREDRICKSON
Introduction
The final report issued by Special Counsel Robert Mueller
on his investigation into Russian interference in the 2016
election delivered several chilling conclusions: (1) Russia
conducted wide-ranging attacks on our nation's election system;
(2) both before and after public reports of the Russian
attacks, the Trump campaign had multiple contacts with Russian
nationals and did not report these interactions to U.S.
authorities; and (3) there is substantial evidence that
President Donald Trump repeatedly attempted to thwart the
Department of Justice's efforts to investigate the Russian
attacks, including through his unheeded requests to the White
House Counsel to fire the Special Counsel and create a false
paper trail and make public misrepresentations regarding this
incident.
These troubling findings and other public accounts of
alleged presidential corruption demand and are rightfully
receiving scrutiny by this Committee and other congressional
committees. As this Committee knows well, the investigations
the Committee is pursuing in this vein are well grounded in
Congress's article I powers and the jurisdictional directives
of the House Rules. Unfortunately, instead of providing
information to enable Congress to do its job, the President has
said he will resist all congressional subpoenas, and his
lawyers have requested that this Committee ``discontinue'' its
investigation and have made the extraordinary and unfounded
claim that the Committee lacks authority to investigate these
matters.\1\
---------------------------------------------------------------------------
\1\ See Charlie Savage, Trump Vows Stonewall of `All' House
Subpoenas, Setting up Fight over Powers, N.Y. Times (Apr. 24, 2019),
https://www.nytimes.com/2019/04/24/us/politics/donald-trump-
subpoenas.html; Letter from Pat A. Cippolone, White House Counsel, to
Jerrold Nadler, Chairman, House Comm. on the Judiciary (May 15, 2019),
http://cdn.cnn.com/cnn/2019/
images/05/15/pacletter05.15.2019.pdf.
---------------------------------------------------------------------------
In light of the Administration's misguided public positions
on this Committee's oversight responsibilities, I appreciate
the opportunity to participate in the hearing the Committee is
holding to set the record straight on congressional avenues for
addressing presidential misconduct.
As President of the American Constitution Society (ACS), I
speak and write on a range of legal and constitutional issues
and oversee lawyer and law student chapters throughout the
country. ACS has worked to promote informed public evaluation
of the investigations into Russian interference in the 2016
election through the development and dissemination of legal
analysis of key issues that emerge as the inquiries unfold.
Most recently, on the subjects before the Committee today, ACS
published ACS Board Member and Ohio State Professor of Law
Peter Shane's analysis titled ``The Fatal Flaw in the Argument
for McGahn's Testimonial Immunity,'' \2\ Georgetown University
Professor of Law Victoria Nourse's piece titled ``Oversight is
a Necessity, Not A Luxury,'' \3\ and submitted testimony for
the record of this Committee's May 15, 2019, hearing on
``Executive Privilege and Congressional Oversight.''
---------------------------------------------------------------------------
\2\ Peter Shane, The Fatal Flaw in the Argument for McGahn's
Testimonial Immunity, ACS Blogs (May 22, 2019), https://www.acslaw.org/
expertforum/the-fatal-flaw-in-the-argument-for-mcgahns-testimonial-
immunity/.
\3\ Victoria Nourse, Oversight Is a Constitutional Necessity, Not a
Luxury, ACS Blogs (May 1, 2019), https://www.acslaw.org/expertforum/
oversight-is-a-constitutional-necessity-not-a-luxury/.
---------------------------------------------------------------------------
I offer a few points for your consideration today.
Congress's Oversight Powers
Congress has broad constitutional authority to examine the
pressing questions that emerged over the course of Special
Counsel Robert Mueller's inquiry and in his final report. The
Supreme Court has long held that Congress's oversight
authorities are inherent in Congress's article I legislative
powers.\4\ These oversight authorities are ``broad'' and
encompass matters including ``the Administration of existing
laws,'' ``proposed or possibly needed statutes,'' and ``probes
. . . to expose corruption, inefficiency, and waste.'' \5\
Indeed, the Court has emphasized that oversight is
``essential'' to the conduct of government.\6\ This Committee
has additional constitutional authorities to conduct oversight
under the provisions of article I, section 2 stating that the
House of Representatives has the ``sole power of impeachment.''
\7\
---------------------------------------------------------------------------
\4\ McGrain v. Daugherty, 273 U.S. 135, 174-75 (1927).
\5\ Watkins v. United States, 354 U.S. 178, 187 (1957).
\6\ McGrain, 273 U.S. at 174.
\7\ U.S. Const. art. I, Sec. 2. The constitution sets forth the
scope of the impeachment authority as follows: ``The President, Vice
President and all civil officers of the United States, shall be removed
from office on impeachment for, and conviction of, treason, bribery, or
other high crimes and misdemeanors.'' U.S. Const. art. II, Sec. 4.
---------------------------------------------------------------------------
Congressional investigations often lead to the development
of new laws, but Congress may also address oversight findings
through other courses of action. Some investigations have led
Congress to conclude that enacting new laws is not necessary to
address issues identified in the inquiry.\8\ Some congressional
oversight proceedings have led to executive branch reforms.\9\
Some inquiries into alleged Administration corruption
havevresulted in accountability steps such as resignations,\10\
referrals,\11\ House or Senate resolutions memorializing
disapproval of presidential or other Administration
misconduct,\12\ or the launch of impeachment proceedings.\13\
Further, as we have seen in this Committee and others,
sometimes investigation of one issue uncovers information that
leads a Committee to investigate separate problems previously
unknown at the outset of the initial inquiry,\14\ or to request
further review from an agency inspector general.\15\
---------------------------------------------------------------------------
\8\ See, e.g., Illegal Use of Steroids in Major League Baseball:
Hearing on The Mitchell Report Before H. Comm. on Oversight and Gov't
Reform, 110th Cong. 18 (2008) (statement of Ranking Member Tom Davis),
https://www.govinfo.gov/content/pkg/CHRG-110hhrg55749/pdf/CHRG-
110hhrg55749.pdf (describing how, in light of changed circumstances
following bipartisan hearings on steroid use by teens and major league
athletes, Congress did not enact relevant legislation: ``Nearly 3 years
ago, our first foray into this subject proved extremely productive.
After our hearings, then Ranking Member Henry Waxman and I introduced
legislation that turned out to be unnecessary because baseball and
other major sports acted quickly, on their own, to enhance drug testing
and enforcement programs'').
\9\ See, e.g., Claudia Lauer, FEMA To Buy Back Trailers Due To
Formaldehyde Worries, L.A. Times (Aug. 11, 2011), https://
www.latimes.com/archives/la-xpm-2007-aug-11-na-fema11-story .html
(describing how, following a congressional hearing spotlighting health
risks associated with formaldehyde levels in residential trailers the
Federal Emergency Management Agency (FEMA) provided Hurricane Katrina
victims, the FEMA director committed to testing the trailers and
suspending their sales).
\10\ See, e.g., Coral Davenport, Lisa Friedman, & Maggie Haberman,
EPA Chief Scott Pruitt Resigns Under a Cloud of Ethics Scandals, N.Y.
Times (July 5, 2018), https://www.nytimes.com/2018/07/05/climate/scott-
pruitt-epa-trump.html (describing multiple congressional and inspector
general investigations that precipitated the 2018 resignation of EPA
Administrator Scott Pruitt).
\11\ See, e.g., Jube Shiver Jr. & Abigail Goldman, Criminal Probe
of Stewart Sought, L.A. Times (Sept. 11, 2002), https://
www.latimes.com/archives/la-xpm-2002-sep-11-fi-martha11-story.html
(describing bipartisan referral to the Department of Justice by the
chairs and Ranking Members the House Committee on Energy and Commerce
and its Subcommittee on Oversight and Investigations regarding
statements made by Martha Stewart in the Committee's inquiry into
biotech stock trading).
\12\ For example, the Senate in 1834 approved a resolution
criticizing President Andrew Jackson's conduct relating to firing his
Treasury Secretary. Censure, U.S. Senate, https://www.senate.gov/
reference/reference_index_subjects/Censure_vrd.htm (last visited July
8, 2019).
\13\ See for example H.R. Res. 803, 93rd Cong. (1974), which
authorized and directed the House Committee on the Judiciary ``to
investigate fully and completely whether sufficient grounds exist for
the House of Representatives to impeach President Richard M. Nixon.''
\14\ For example, information produced in the House and Senate
Judiciary Committee investigations of alleged improprieties in the Bush
Administration's firing of U.S. Attorneys, as well as information
produced in the House Oversight and Government Reform Committee's
investigation of lobbying contacts between Jack Abramoff and the White
House, suggested that the Administration was using unofficial email
accounts to conduct official business--a revelation that led to an
Oversight Committee inquiry into potential records management
violations. See Letter from Henry A. Waxman, Chairman, House Comm. on
Oversight and Gov't Reform to Mike Duncan, Chairman, Republican Nat'l
Comm. (Mar. 26, 2007), https://wayback.archive-it.org/4949/
20141031193105/http://oversight-archive.waxman.house.gov/documents/
20070326110802-38974.pdf.
\15\ For example, following congressional testimony from the
General Services Administration and FBI regarding the Administration's
decision to halt long-standing plans to move the FBI headquarters, and
a congressional call for an inspector general investigation of this
issue, the FBI's office of inspector general announced in July 2019
that they had launched a review. Jonathan O'Connell, Justice Department
Watchdog to Investigate Decision to Cancel FBI Headquarters Plan, Wash.
Post (July 3, 2019), https://www.washingtonpost.com/politics/justice-
department-watchdog-to-investigate-decision-to-cancel-fbi-headquarters-
plan/2019/07/03/76971
d76-9d85-11e9-9ed4-c9089972ad5a_story.html?utm_term=.77a5abc82390.
---------------------------------------------------------------------------
Regardless of the course an investigation may take,
Congress can employ powerful oversight tools that include the
authority to subpoena witnesses \16\ and hold them in
contempt.\17\ In addition, standing House committees including
this Committee have authority to conduct depositions.\18\
---------------------------------------------------------------------------
\16\ Watkins v. United States, 354 U.S. 178, 187-88 (1957).
\17\ For a detailed discussion of Congress's criminal, civil, and
inherent contempt authorities, see Cong. Research Serv., Congressional
Subpoenas: Enforcing Executive Branch Compliance R45653 (2019), https:/
/fas.org/sgp/crs/misc/R45653.pdf.
\18\ H.R. Res. 6, 116th Cong. Sec. 103 (2019).
---------------------------------------------------------------------------
With respect to this Committee's investigation into Russian
interference in the 2016 election and allegations of misconduct
by President Trump, this Committee may conduct hearings to
support relevant legislation, impeachment proceedings, or other
steps that may be necessary, depending on the facts that
emerge.
Precedent on Congressional Investigations
Congressional history is of course replete with
investigations of alleged White House misconduct that have not
involved impeachment. Many of these--across both Republican and
Democratic Administrations--involved congressional deposition
or hearing testimony from top White House aides.
For example, the Senate Judiciary Committee investigated
business dealings of President Carter's brother and alleged
related White House communications, taking testimony from the
National Security Advisor and the Press Secretary to the
President.\19\ A joint House and Senate Committee reviewed the
role of the Reagan White House in the diversion of Iran arms
sales funds to Nicaraguan contras, taking testimony from two
National Security Advisors to the President and the National
Security Advisor to the Vice President, among other White House
aides.\20\ Committees in both the House and Senate conducted
inquiries into whether the Clinton White House engaged in
campaign finance improprieties, taking testimony from a White
House Chief of Staff, Deputy Chief of Staff, two White House
Counsels, two Deputy White House Counsels, the Chief of Staff
to the First Lady, and the National Security Advisor, among
other White House aides.\21\ Further, the House Oversight
Committee investigated alleged inappropriate Bush White House
use of nongovernment email for official business, taking
deposition testimony from two White House Political
Directors.\22\
---------------------------------------------------------------------------
\19\ See, Inquiry Into the Matter of Billy Carter and Libya, S.
Rep. No. 99-1015 (1980), https://www.intelligence.senate.gov/sites/
default/files/961015.pdf (noting deposition testimony of Press
Secretary Jody Powell and deposition and hearing testimony of National
Security Advisor Zbigniew Brzezinski).
\20\ See, Report of the Congressional Committees Investigating the
Iran-Contra Affair, H.R. Rep. No. 100-433, S. Rep. No. 100-216, at
Appendix B, Vol. 2 (1987), https://babel .hathitrust.org/cgi/
pt?id=uc1.aa0008704835&view=1up&seq=1 (citing deposition testimony of
National Security Advisors John Poindexter and Robert McFarlane,
National Security Advisor to the Vice President Donald Gregg, and
others).
\21\ See, Report of Illegal or Improper Activities in Connection
With 1996 FEderal Election Campaigns, S. Rep. No. 105-167 (1998);
Investigation of Political Fundraising Improprieties and Possible
Violations of Law, H.R. Rep. No. 105-829 (1998) (noting hearing and
deposition testimony of White House Chief of Staff Thomas McLarty,
Deputy Chief of Staff Harold Ickes, White House Counsels John Quinn and
Charles F.C. Ruff, Chief of Staff to the First Lady Margaret Williams,
and National Security Advisor Sandy Berger, among others).
\22\ See Staff of H.R. Comm. on Oversight and Gov't Reform, 110th
Cong., Dept. of Matthew Aaron Schlapp, (2007), https://wayback.archive-
it.org/4949/20141031185147/http://oversight-archive.waxman.house.gov/
documents/20081015115613.pdf; Staff of H.R. Comm. on Oversight and
Gov't Reform, 110th Cong., Dept. of Sara M. Taylor (2007), https://
wayback.archive-it.org/4949/20141031185215/http://oversight-
archive.waxman.house.gov/
documents/20081015115720.pdf.
---------------------------------------------------------------------------
Impeachment proceedings have begun without any formal vote
of the House to initiate impeachment. In addition, for
presidential impeachments, the Judiciary Committee has
conducted hearings to determine whether or not to recommend
articles to the full House. With respect to the impeachment of
President Nixon, the House Judiciary Committee had been
considering articles of impeachment for close to a year before
there was a full House vote in February 1974.\23\
---------------------------------------------------------------------------
\23\ H.R. Res. 803, 93rd Cong. (1974).
---------------------------------------------------------------------------
With respect to the impeachment of President Clinton, the
Independent Counsel inquiry that resulted in an impeachment
referral to the House of Representatives in September 1998 \24\
originated in 1994 as an inquiry into alleged improprieties
relating to investments by President Bill Clinton and First
Lady Hillary Clinton in a real estate company in Arkansas, the
Whitewater Development Corporation.\25\ The Independent Counsel
investigation ultimately expanded to other issues that formed
the basis of the impeachment referral,\26\ and the referral did
not ultimately involve Whitewater.\27\ In the interim, however,
and long before the October 1998 House resolution initiating
impeachment proceedings,\28\ Congress conducted extensive
investigations into Whitewater.\29\
---------------------------------------------------------------------------
\24\ Kenneth W. Starr, Referral From Independent Counsel Kenneth W.
Starr in Conformity With the Requirements of Title 28, United States
Code Section 595(C), H.R. Doc. No. 105-310 11(1998), https://
www.govinfo.gov/content/pkg/GPO-CDOC-106sdoc3/pdf/GPO-CDOC-106sdoc3-
2.pdf.
\25\ By an August 5, 1994, order by the special division of the
District of Columbia Circuit Court, Kenneth Starr was appointed
independent counsel to take over the investigation commenced in January
1994 by independent counsel Robert Fiske into allegations relating to
the Whitewater Development Corporation. See Kenneth Starr's Mandate,
Wall Street J. (Sept. 25, 1996), https://www.wsj.com/articles/
SB843603671806139000 (excerpting the court order).
\26\ In re Madison Guar. Sav. & Loan Ass'n, No. 94-1, 1998 WL
472444, at *1 (D.D.C. Jan. 16, 1998).
\27\ Kenneth W. Starr, Referral From Independent Counsel Kenneth W.
Starr in Conformity With the Requirements of Title 28, United States
Code Section 595(C), H.R. Doc. No. 105-310 (1998), https://
www.govinfo.gov/content/pkg/GPO-CDOC-106sdoc3/pdf/GPO-CDOC-106sdoc3-
2.pdf.
\28\ H.R. Res. 581, 105th Cong. (1998), https://www.congress.gov/
bill/105th-congress/house-resolution/581.
\29\ The House Committee on Banking held its first hearing on
Whitewater matters on July 26, 1994. See Whitewater Investigation, Part
4, C-SPAN, https://www.c-span.org/video/?59036-1/whitewater-
investigation-part-4 (last visited July 8, 2019). See also
Investigation of Whitewater Development Corporation and Related
Matters: Final Report, S. Rep. No. 104-280, at 1 (1996), https://
www.congress.gov/104/crpt/srpt280/CRPT-104srpt280.pdf.
---------------------------------------------------------------------------
In fact, in contrast to the Trump Administration's
resistance to this Committee's request for testimony and
documents from former Trump White House Counsel Don McGahn,\30\
the Senate Special Committee to Investigate the Whitewater Land
Development Corporation and Related Matters took testimony from
two Clinton White House Counsels, Bernard Nussbaum and Lloyd
Cutler.\31\ Other senior White House aides who provided
testimony for congressional inquiries into Whitewater matters
included two Deputy Counsels to the President,\32\ the Special
Counsel to the President,\33\ the Chief of Staff to the Vice
President,\34\ the Chief of Staff to the First Lady,\35\ the
Assistant to the President and Communications Director,\36\ the
former Press Secretary to the President,\37\ the Press
Secretary to the First Lady,\38\ the Staff Secretary to the
President,\39\ and a Senior Policy Advisor to the
President.\40\
---------------------------------------------------------------------------
\30\ Letter from Pat A. Cipollone, White House Counsel, to Jerrold
Nadler, Chairman, House Comm. on the Judiciary (May 20, 2019), https://
assets.bwbx.io/documents/users/iqjWHBF dfxIU/rSS0nmVzVL0M/v0.
\31\ See Progress of the Investigation Into Whitewater Development
Corporation and Related Matters and Recommendation for Future Funding,
S. Rep. No. 104-204, at 24-30 (1996), https://www.congress.gov/104/
crpt/srpt204/CRPT-104srpt204.pdf (detailing deposition and hearing
testimony received by the Committee).
\32\ See id. at 25-26 (noting deposition and hearing testimony of
Bruce Lindsey); Cong. Research Serv., Presidential Advisers' Testimony
Before Congressional Committees: An Overview 13 (2007), https://
fas.org/irp/crs/RL31351.pdf (noting that Joel I. Klein testified at a
hearing before the Senate Committee on Banking, Housing, and Urban
Affairs, regarding Whitewater-related matters on August 3, 1994)
[hereafter Presidential Advisers' Testimony Before Congressional
Committees].
\33\ See S. Rep. No. 104-204, at 27-28 (noting deposition and
hearing testimony of Jane Sherburne).
\34\ See id. at 25-26 (noting deposition and hearing testimony of
John Quinn).
\35\ See id. at 25 (noting deposition and hearing testimony of
Margaret Williams).
\36\ See id. at 24-25 (noting deposition and hearing testimony of
Mark Gearan).
\37\ See id. at 24 (noting deposition testimony of Dee Dee Myers).
\38\ See id. at 25 (noting deposition testimony of Lisa Caputo).
\39\ See Presidential Advisers' Testimony Before Congressional
Committees, supra note 34, at 12-14 (noting that John D. Podesta
testified at a hearing before the House Banking Committee on July 28,
1994, and at a hearing before the Senate Banking Committee on August 4,
1994, on Whitewater-related matters).
\40\ See S. Rep. No. 104-204, at 24 (noting deposition testimony of
George Stephanopoulos).
---------------------------------------------------------------------------
Issues Relating to the Mueller Report That Demand Congressional
Oversight
Whether or not the House ever moves forward on impeachment
against President Trump, several key unanswered questions
relating to the Mueller Report demand rigorous congressional
review. These include:
(1) How can Congress best protect American voters from future
attacks on the election system by Russia or other hostile
nations?
The Mueller Report concluded that Russia engaged in
``sweeping and systemic'' interference in the 2016 election
\41\ through a social media ``information warfare'' campaign
that ``favored'' candidate Trump and ``disparaged'' candidate
Clinton,\42\ and by hacking into databases of entities and
individuals working for the Clinton campaign and releasing
stolen materials through fictitious online entities the
Russians created and through the organization Wikileaks.\43\
The Report further stated that Russia targeted databases of
individuals and entities associated with administering
elections,\44\ and top U.S. intelligence and law enforcement
authorities have stated that Russia in 2018 againvattempted to
disrupt U.S. elections \45\ and have warned of anticipated
foreign interference attempts in the 2020 election as well.\46\
---------------------------------------------------------------------------
\41\ Special Counsel Robert S. Mueller, III, U.S. Dep't of Justice,
Report on the Investigation Into Russian Interference in the 2016
Election Vol. I, 1-5 (2019), https://www.documentcloud.org/documents/
5955118-The-Mueller-Report.html [hereafter Mueller Report].
\42\ Id. at Vol. I, 1-4, 14-35.
\43\ Id. at Vol. I, 1-5, 36-50.
\44\ Id. at Vol. I, 50-51.
\45\ See, e.g. David Smith, U.S. Still Under Attack from
``Pervasive Campaign'' by Russia, U.S. Officials Warn, Guardian (Aug.
3, 2018), https://www.theguardian.com/us-news/2018/aug/03/us-russia-
election-meddling-latest-dan-coats.
\46\ E.g., Alyza Sebenius, Russia Internet Trolls Are Apparently
Shifting Strategies for 2020 Elections, Time (Mar. 9, 2019), https://
time.com/5548544/russian-internet-trolls-strategies-2020-elections/.
---------------------------------------------------------------------------
Close examination of how Russia executed these interference
strategies is necessary to inform this Committee and other
Committees of jurisdiction regarding how best to tailor
legislative initiatives involving electronic data protections,
the provision of additional funding or resources for the U.S.
agencies responsible for monitoring and investigating foreign
interference, and other measures to protect the integrity of
our election laws and systems.
(2) Why did Trump campaign officials, Trump associates, and
then-candidate Trump continue to have contact during the
campaign with Russian nationals after becoming aware of Russian
hacking, why did Trump associates lie to investigators about
these contacts, and why did Trump and his associates and
suggest publicly that Trump had ``nothing to do with Russia''?
The redacted Mueller Report documents dozens of Trump
associate contacts with Russian nationals and Russian-
associated individuals during the campaign and presidential
transition.\47\ However, it contains no evidence that Trump
campaign officials reported these contacts to U.S. law
enforcement agencies during the campaign or presidential
transition, despite public reports starting in June 2016 \48\
regarding Russian hacking of Democratic emails and candidate
Trump's August 2016 briefing on this matter by intelligence
officials.\49\ In fact, President Trump recently indicated that
if approached in the future by a foreign government promising
``dirt'' on a campaign opponent, he might not report such
contacts to U.S. authorities.\50\
---------------------------------------------------------------------------
\47\ Mueller Report, supra note 43, at Vol. I, 66-173; see also
Grace Panetta, The Mueller Report Is Here; Here Are All the Known
Contacts Between the Campaign and Russian-Government Linked People or
Entities, Bus. Insider (Apr. 19, 2019), https://
www.businessinsider.com/trump-campaign-russia-government-contact-
timeline-2018-7 (summarizing the Mueller Report and tallying 101
contacts); The Moscow Project, Ctr. for Am. Progress, https://themoscow
project.org/explainers/trumps-russia-cover-up-by-the-numbers-70-
contacts-with-russia-linked-operatives/ (last updated June 3, 2019)
(tallying total contacts in the redacted Mueller Report and other
public accounts at 272).
\48\ Ellen Nakashima, Russian Government Hackers Penetrated DNC,
Stole Opposition Research on Trump, Wash. Post (June 14, 2016), https:/
/www.washingtonpost.com/world/national-security/russian-government-
hackers-penetrated-dnc-stole-opposition-research-on-trump/2016/06/14/
cf006cb4-316e-11e6-8ff7-7b6c1998b7a0_story.html?utm_term=.de1c7ecf8bfb.
\49\ Robert Windrem & William M. Arkin, Trump Told Russia to Blame
for Hacks Long Before 2016 Debate, NBC News (Oct. 10, 2016), https://
www.nbcnews.com/news/us-news/trump-was-told-russia-was-blame-hacks-
long-debate-n663686 (describing August 2016 intelligence briefing of
Trump regarding the hacks).
\50\ Lucien Bruggeman, ``I Think I'd Take It'': In Exclusive
Interview, Trump Says He Would Listen if Foreigners Offered Dirt on
Opponents, ABS News (June 19, 2019), https://abcnews .go.com/Politics/
id-exclusive-interview-trump-listen-foreigners-offered-dirt/
story?id=63669304.
---------------------------------------------------------------------------
Campaign and presidential transition interactions between
Trump associates and Russian nationals include, among others:
Contacts in 2015 and 2016 between Trump attorney
Michael Cohen, Trump associate Felix Slater, and Russian
nationals regarding a potential Trump project in Moscow
involving 250 condominiums and a 15-floor hotel, on which Trump
signed a letter of intent; \51\
---------------------------------------------------------------------------
\51\ Mueller Report, supra note 43, at Vol. I, 67-80.
---------------------------------------------------------------------------
An April 2016 communication from a Russian
operative to campaign advisor George Papadopoulos that Russians
have "dirt" on Clinton in the form of emails and a plan to
distribute them; \52\
---------------------------------------------------------------------------
\52\ Id. at Vol. I, 86-89.
---------------------------------------------------------------------------
A meeting on June 9, 2016, at Trump Tower, New
York, between Russian nationals and top campaign officials and
Trump associates including campaign head Paul Manafort, Donald
Trump, Jr., and Jared Kushner, after outreach from an
intermediary informing Trump, Jr., that the Russians had
derogatory information on Clinton that was ``part of Russia and
its government's support for Mr. Trump;'' \53\
---------------------------------------------------------------------------
\53\ Id. at Vol. I, 110-20.
---------------------------------------------------------------------------
A meeting on August 2, 2016, between Trump
campaign head Paul Manafort, deputy campaign head Rick Gates,
and Konstantin Kilimnik, an individual ``the FBI assesses to
have ties to Russian Intelligence,'' \54\ in which the Trump
campaign officials shared internal campaign battleground
polling data and discussed a Ukrainian ``peace plan'' that
Gates acknowledged was in essence a means of providing Russia
control of eastern Ukraine; \55\
---------------------------------------------------------------------------
\54\ Id. at Vol. I, 14.
\55\ Id. at Vol. I, 130, 139-40.
---------------------------------------------------------------------------
Periodic other instances where Gates, reportedly
at Manafort's instruction, provided Kilimnik with campaign
updates including polling data; \56\
---------------------------------------------------------------------------
\56\ Id. at Vol. I, 129, 136-37.
---------------------------------------------------------------------------
A November 30, 2016, meeting between Kushner and
Russian Ambassador Sergey Kislyak at which Kushner asked about
the option, which Kislayak rejected, of the two communicating
``using secure facilities at the Russian embassy''; \57\
---------------------------------------------------------------------------
\57\ Id. at Vol. I, 159-61.
---------------------------------------------------------------------------
Discussions in December 2016 between Trump
campaign foreign policy advisor and subsequent National
Security Advisor Michael Flynn and the Russian Ambassador
regarding Russia's reaction to sanctions then-President Obama
issued and regarding a U.N. Security Council vote on Israeli
settlements; \58\ and
---------------------------------------------------------------------------
\58\ Id. at Vol. I, 167-73.
---------------------------------------------------------------------------
Meetings on January 11-12, 2017, in the
Seychelles between Trump associate Erik Prince and Russian
financier Kirill Dmitriev in which they addressed U.S.-Russia
relations.\59\
---------------------------------------------------------------------------
\59\ Id. at Vol. I, 151-56.
According to the Mueller Report, multiple Trump associates
lied to investigators about Trump associate contacts with
Russia. For example, Papadopoulos and Flynn pleaded guilty to
lying to federal investigators about their contacts with
Russians, Cohen pleaded guilty to making false statements to
Congress about the Trump Moscow project, and a federal judge
found that Manafort lied about providing a Russian-linked
operative with polling data.\60\ In addition, given the
voluminous contacts that the Trump campaign and associates had
with Russia, the Report raised questions about why the Trump
campaign, including then-candidate Trump, repeatedly
represented to the public that Trump had no connections to
Russia.\61\
---------------------------------------------------------------------------
\60\ E.g., id. at Vol. I, 9-10.
\61\ Id. at Vol. II, 18-23.
---------------------------------------------------------------------------
Congressional review of these and other Trump associate
contacts with Russia is imperative for informing Congress of
the potential effectiveness of additional federal laws
requiring campaign disclosures of certain contacts with foreign
nationals or other limits to avert inappropriate foreign
attempts to interfere with U.S. elections. Such inquiry is also
necessary to evaluate any continuing risks that Russians who
were in contact with the Trump campaign have any inappropriate
sway over the Trump Administration or individual officials.
(3) Does the substantial evidence the Mueller Report presents
of obstruction of justice and other misconduct on the part of
President Trump and other Trump officials merit further
congressional actions including legislation, censure,
impeachment, or referrals?
The Mueller Report in Volume II details multiple incidents
that raise questions about whether President Trump committed
obstruction of justice and witness tampering. In fact, over
1000 former prosecutors who served under both Republican and
Democratic Administrations have stated that ``the conduct of
President Trump described in Special Counsel Robert Mueller's
report would, in the case of any other person not covered by
the Office of Legal Counsel policy against indicting a sitting
President, result in multiple felony charges for obstruction of
justice.'' \62\
---------------------------------------------------------------------------
\62\ Statement by Former Federal Prosecutors, Medium (May 6, 2019),
https://medium.com/@dojalumni/statement-by-former-federal-prosecutors-
8ab7691c2aa1.
---------------------------------------------------------------------------
One key example is President Trump's actions directing the
White House Counsel to order the firing of Special Counsel
Mueller. According to the Report, shortly after June 14, 2017,
press reports that Mueller was investigating the President for
obstruction of justice, the President called White House
Counsel Don McGahn at home twice, directing him to call Acting
Attorney General Rod Rosenstein ``to say that the Special
Counsel had conflicts of interest and must be removed.'' McGahn
refused and stayed on as White House Counsel, though he
threatened to resign and told the White House chief of staff
the President had asked him to ``do crazy shit.'' \63\
---------------------------------------------------------------------------
\63\ Mueller Report, supra note 43, at Vol. II, 77-90.
---------------------------------------------------------------------------
Months later when media accounts disclosed the President's
request to McGahn, the President, through his counsel and
aides, asked McGahn to refute this story and ``create a record
to make clear that the President had never directed McGahn to
fire the Special Counsel,'' which McGahn refused to do. The
President himself also pressed McGahn personally--and
unsuccessfully--in the Oval Office to deny the press
accounts.\64\
---------------------------------------------------------------------------
\64\ Id. at Vol. II, 113-18.
---------------------------------------------------------------------------
Other potentially obstructive conduct documented in the
Mueller Report concerns the President's actions following the
February 2017 firing of National Security Advisor Michael
Flynn. According to the Report, after learning that Flynn had
made statements to the FBI regarding his contacts with Russian
Ambassador Kislyak that could constitute lying to
investigators, Trump cleared his office for a one-on-one
meeting with then--FBI Director James Comey and asked Comey to
``let [Flynn] go.'' He also asked then-Deputy National Security
Advisor K.T. McFarland to draft an internal memo saying Trump
did not direct Flynn to call Kislyak, which McFarland did not
do because she did not know whether he had so directed
Flynn.\65\
---------------------------------------------------------------------------
\65\ Id. at Vol. II, 40-44.
---------------------------------------------------------------------------
The report also raises questions about whether the
President had improper motives in pressing for Attorney General
Jeff Sessions to ``un-recuse'' himself, firing Comey,
discouraging cooperation with the Mueller inquiry, and
suggesting future pardons to witnesses under investigation.\66\
---------------------------------------------------------------------------
\66\ Id. at Vol. II, 109-11.
---------------------------------------------------------------------------
The Mueller Report pointedly notes that it ``does not
exonerate'' the President.\67\ Instead, the Report explains
that the Office of Special Counsel ``accepted'' the Office of
Legal Counsel policy that a sitting President cannot be
indicted, while asserting that ``the separation-of-powers
doctrine authorizes Congress to protect official proceedings,
including those of courts and grand juries, from corrupt,
obstructive acts regardless of their source,'' and underscoring
that ``no person is above the law.'' \68\
---------------------------------------------------------------------------
\67\ Id. at Vol. II, 8.
\68\ Id.
---------------------------------------------------------------------------
The American public deserves thorough congressional review
of the potentially obstructive conduct indicated by the
redacted Mueller Report. This oversight is an important
foundation for evaluating the effectiveness of current laws
including provisions of the obstruction of justice statutes on
intimidating witnesses, suborning perjury, and falsifying
evidence, and determining whether any additional congressional
actions are merited to ensure full accountability for
presidential misconduct and safeguard the Department of Justice
from political interference.
(4) To what extent does the content behind the Mueller report
redactions, gaps in evidence gathering that the Special Counsel
identified, and cases referred to other prosecutors by the
Special Counsel, suggest any additional wrongdoing by the
President or his associates?
It is worth noting that one of the more heavily redacted
sections of the Mueller report concerns contacts between
Russian entities with access to hacked Clinton campaign emails
and Trump associates. For example, the Report suggests that
both Cohen and Manafort had conversations with Trump in July
2016 shortly after Wikileaks released hacked emails, but
redacts the content of those discussions.\69\ The Report
further notes that ``Trump told Gates that more releases of
damaging information would be coming,'' but redacts the
contextual information around that statement.\70\
---------------------------------------------------------------------------
\69\ Id. at Vol. I, 53.
\70\ Id. at Vol. I, 54.
---------------------------------------------------------------------------
Redactions also obscure the Report's discussion of 12 of
the 14 matters the Special Counsel referred to other law
enforcement authorities on the grounds that they fall outside
the Special Counsel's jurisdiction.\71\ The two matters that
were not redacted include a case regarding evidence of wire
fraud and campaign finance violations, which, as the Mueller
Report stated, ``ultimately led to the conviction of Cohen in
the Southern District of New York for campaign-finance offenses
related to payments he said he made at the direction of the
President.'' \72\
---------------------------------------------------------------------------
\71\ Id. at Vol. II, Appendix D.
\72\ Id. at Vol. II, 77, fn. 500.
---------------------------------------------------------------------------
Beyond the redactions, the Mueller Report noted numerous
obstacles to obtaining a complete record in the first place,
such as:
The President refused the request by the Special
Counsel for an interview, providing only written responses to
questions, which the Mueller Report said denied the Special
Counsel the ``opportunity to ask follow-up questions that would
ensure complete answers and potentially refresh [the
President's] recollection or clarify the extent or nature of
his lack of recollection'';
The Office of the Special Counsel considered the
President's written responses to be ``incomplete'' and
``imprecise,'' and noted that the President stated on ``more
than 30 occasions that he `does not recall' or `remember' or
`have an independent recollection' ''; \73\
---------------------------------------------------------------------------
\73\ Id. at Vol. II, Appendix C.
---------------------------------------------------------------------------
Some of the witnesses used communications
applications that did not allow for long-term data retention,
or ``deleted relevant communications''; \74\ and
---------------------------------------------------------------------------
\74\ Id. at Vol. I, 10.
---------------------------------------------------------------------------
Some individuals invoked the 5th Amendment right
against compelled self-incrimination.\75\
---------------------------------------------------------------------------
\75\ Id.
Review of the un-redacted Mueller report and underlying
evidence along with any relevant follow-up interviews and
document requests is necessary to ensure full public
accountability for these gaps and informed congressional
evaluation of the laws implicated by Mueller's findings and
whether further legislation or investigation is necessary.
Conclusion
In sum, given the gravity of the Mueller Report's
conclusions and the related information that has emerged
publicly to date, a failure by Congress to examine these issues
would constitute an abdication of Congress's fundamental
constitutional oversight responsibilities. As former Senate
Judiciary Committee Chairman and current Senate Finance
Committee Chairman Charles Grassley has eloquently stated,
congressional oversight is all about ``[k]eeping faith with `We
the People.' It means working as hard as you can to give the
people confidence that their government either plays by the
rules or is held accountable.'' \76\
---------------------------------------------------------------------------
\76\ Senator Chuck Grassley, Chairman, Senate Judiciary Comm.,
Remarks at the Heritage Foundation (June 25, 2018), https://
www.judiciary.senate.gov/grassley-on-the-importance-and-responsibility-
of-congressional-oversight.
Chairman Nadler. Thank you.
Dr. Eastman.
TESTIMONY OF DR. JOHN EASTMAN
Mr. Eastman. Thank you, Chairman Nadler and Members of the
committee. I'm delighted to be here to participate in this
hearing.
Before turning to the substance of my remarks and
addressing the precise question you've posed, I think it's
important to take issue with the underlying assumption of the
hearing contained in the full title of this hearing.
By tying the question of Presidential misconduct to the
Mueller report, you imply that the Mueller report identified
Presidential misconduct that should trigger whatever
constitutional processes might be available. As a factual
matter, I could not disagree more, for I do not find anything
in that report even remotely rising to the level that would
trigger the one constitutional path designed to address
Presidential misconduct, and that's impeachment.
I should also note that this is not the first time the
judiciary--a congressional judiciary Committee has considered
this question. In 1998, the Senate Judiciary Committee,
Subcommittee on the Constitution, held a hearing on impeachment
or indictment. I commend the proceedings of that hearing to
your attention, particularly the extremely persuasive testimony
and submitted scholarly work of Yale law professor, Akhil Amar.
The conclusion he reached then is the same one I reach now, and
it is the same one that has been reached by the Office of Legal
Counsel in both Democrat and Republican Administrations
spanning nearly a half a century.
Because of the unique role the Constitution assigns to the
Office of President, a sitting President cannot be indicted.
That does not place the President above the law, as some have
claimed, but it does recognize that the sole remedy envisioned
by the Constitution for illegal conduct by a President, while
he is President, is the impeachment process outlined in article
I, section 3.
As Professor Amar so aptly put it, the grand jury in such a
case is the House, the indictment is the Articles of
Impeachment, and the Senate is the petit jury.
I won't go through the conclusions of those two OLC
reports, other than to very quickly summarize them. The notion
that the President can be himself a criminal defendant in a
Federal prosecution would put him on both sides of the criminal
prosecution. He is, after all, the Chief Executive of the
Nation, responsible for the prosecutorial function of the
Federal Government.
It's also true that he has unique official duties that no
one else in the government has, most of which, as the OLC
report in 2000 under the Clinton Administration acknowledged,
most of which cannot be exercised by anybody else. That
strongly counseled them, both OLCs, to conclude that the
President could not--not only not be tried or incarcerated if
convicted, but not even indicted, because it would amount to
such a fundamental intrusion on his executive duties, and
therefore, impact greatly the entire Nation.
There's a third thing that the OLC report in 2000 offered
that I think is even more dispositive: The President's role as
guardian and executor of the 4-year popular mandate expressed
in the most recent balloting for the Presidency. To allow a
single prosecutor or a single grand jury regionally drawn in
someplace in the country the ability to incapacitate a
President who had been chosen through a national election by
the people--by the whole people of the United States is really
contrary to our basic system of government. That's why the OLC
concluded the decision to terminate the mandate is more
fittingly handled by the Congress than by a jury.
I want to close by looking at those OLC reports. They focus
on the fact that the impeachment process is done by elected
Members of Congress who are politically accountable. And it's
that piece that I want to focus on. Because if there is indeed
anything in the Mueller report that rises to the level of
treason, bribery, or other high crimes and misdemeanors, then
the Members of this body will likely be held accountable
politically if the House does not initiate impeachment
proceedings.
The flip side of that coin is also true. If, as I believe
is clearly the case, nothing identified in the Mueller report
remotely rises to that level, then the Members of this body who
continue to pursue impeachment investigations and even formal
impeachment proceedings that manifestly appear to the public to
be an attempt to distract the President from the performance of
his constitutional duties, or worse, to negate the results of
the 2000 election, then they too should be and likely will be
held politically accountable. That's why the Constitution
assigns this awesome oversight authority to this body, but it
comes with a political accountability that flows from that.
We can get into the question and answer about the specific
instances, but I think that the various instances that are
alleged for obstruction of justice or Russia collusion pale in
comparison to some of the things we know occurred by the prior
Administration. It's that level of comparison that the American
people will ultimately choose to make as the political
accountability for this Committee and every Member of the House
of Representative if they continue to pursue these things.
Thank you for your attention.
[The statement of Mr. Eastman follows:]
STATEMENT OF DR. JOHN C. EASTMAN\1\
---------------------------------------------------------------------------
\1\ Institutional affiliations listed for identification purposes
only. The views presented by Dr. Eastman are his own, and do not
necessarily reflect the views of the Institutions with which he is
affiliated.
---------------------------------------------------------------------------
Good afternoon, Chairman Nadler, Ranking Member Collins,
and the other Members of the House Judiciary Committee. Thank
you for inviting me to address the important question as to
what processes the Constitution provides for addressing
presidential misconduct. My name is John Eastman, and I am the
Henry Salvatori Professor of Law & Community Service, and
former Dean, at the Chapman University Fowler School of Law,
where I have been teaching and writing about constitutional law
for the past twenty years. I am also a Senior Fellow at The
Claremont Institute, where I direct the Center for
Constitutional Jurisprudence, a public interest law firm that
specializes in constitutional litigation, particularly in
matters involving core structural components of the
Constitution such as separation of powers.
Before turning to the substance of my remarks addressing
that precise question, however, I think it important to take
issue with the underlying assumption contained in the full
title of this hearing. By tying the question of presidential
misconduct to the Mueller report, you imply that the Mueller
report identified presidential misconduct that would trigger
whatever constitutional processes might be available. As a
factual matter, I could not disagree more, for I do not find
anything even remotely rising to the level that would trigger
the one constitutional path designed to address presidential
misconduct, namely impeachment.
I should also note that this is not the first time a
congressional Judiciary Committee has considered this question.
In 1998, the Senate Judiciary Committee's Subcommittee on the
Constitution, Federalism, and Property Rights held a hearing
entitled: ``Impeachment or Indictment: Is a Sitting President
Subject to the Compulsory Criminal Process?'' \2\ I commend the
proceedings of that hearing to your attention, particularly the
extremely persuasive testimony and submitted scholarly work of
Yale Law Professor Akhil Amar. The conclusion he reached then
is the same one I reach now, and it is the same one that has
been reached by the Office of Legal Counsel in both Democrat
and Republican Administrations spanning nearly a half century.
---------------------------------------------------------------------------
\2\ Hearing Before the Subcommittee on the Constitution,
Federalism, and Property Rights of the Committee on the Judiciary,
United States Senate, on Examining the Extent to Which a Sitting
President Should be Subject to Indictment or Other Compulsory Criminal
Process, 105th Cong., 2d Sess., S. Hrg. 105-969 (Sept. 9, 1998).
---------------------------------------------------------------------------
Because of the unique role the Constitution assigns to the
office of President, a sitting President cannot be indicted.
That does not place the President ``above the law,'' as some
have claimed. But it does recognize that the sole remedy
envisioned by the Constitution for illegal conduct by a
President while he is President is the impeachment process
outlined in article I, section 3 of the Constitution. As
Professor Amar so aptly put it, the ``grand jury'' in such a
case is the House; the ``indictment'' is the articles of
impeachment; and the Senate is the petit jury.\3\
---------------------------------------------------------------------------
\3\ Id. at 186.
---------------------------------------------------------------------------
I. The Office of Legal Counsel in Both Republican and Democrat
Administrations has Concluded That a Sitting President Cannot
Be Indicted While He Remains in Office
a. Watergate and President Richard Nixon
In 1973, near the height of one of the most significant
political-criminal scandals in our nation's history,\4\ the
Office of Legal Counsel prepared a memorandum analyzing
whether, constitutionally, a sitting President could be
imprisoned, tried, or even indicted for criminal conduct while
he remained in office.\5\ After a comprehensive review of the
arguments on both sides of that question, it concluded that a
sitting President could not be indicted while he remained in
office (even while also concluding that other federal officers,
up to and including the Vice President, could be indicted while
in office, and that the President himself would be subject to
criminal prosecution after he left office). The OLC reached
this conclusion not because the President is, in his person,
above the law (like the King of England was), but rather
because the office of the President is, in our constitutional
system, unique. It offered two principal grounds for this
conclusion. First, as the sole head of the Executive branch who
controls criminal prosecutions, controls part of the evidence
as holder of the power of Executive privilege, and is vested
with the pardoning power, he cannot at the same time be the
defendant in a criminal case he is responsible for bringing.\6\
Second, the ``unique official duties'' that the Constitution
assigns to the President, ``most of which cannot be exercised
by anyone else,'' counseled against not only a trial and
possible incarceration upon conviction of the President while
he was in office, but also against even an indictment, which
would not only distract the President from the official duties
uniquely assigned to him but also undermine the authority of
the office itself, and hence the nation, not just at home but
on the world stage.\7\ The Office of Legal Counsel also offered
a third, and I think even more dispositive reason: ``the
President's role as guardian and executor of the four-year
popular mandate expressed in the most recent balloting for the
Presidency.'' \8\ To allow for ordinary criminal process to
operate against the President would place in the hands of a
single prosecutor or a single grand jury, regionally drawn, the
ability to incapacitate a President chosen through a national
election by the whole people of the United States. That is why,
the OLC concluded, that ``the decision to terminate the mandate
. . . is more fittingly handled by the Congress than by a jury,
and such congressional power is founded in the Constitution.''
\9\
---------------------------------------------------------------------------
\4\ The re-election campaign of the then-sitting President, Richard
Nixon, known as the Committee for the Re-Election of the President
(appropriately, ``CREEP''), had spied on his political opponents and
then engaged in a massive cover-up and obstruction of justice of the
illegal conduct. The matter would have been even worse had the
President used government sources to do the spying, as appears to have
happened more recently when high-ranking officials in the
Administration of President Barack Obama obtain FISA warrants to spy on
key figures in the political campaign of the nominee of the opposition
party.
\5\ Memorandum from Robert G. Dixon, Jr., Assistant Attorney
General, Office of Legal Counsel, Re: Amenability of the President,
Vice President and Other Civil Officers to Federal Criminal Prosecution
While in Office (Sept. 24, 1973) (``1973 OLC Memo'').
\6\ Id. at 26.
\7\ Id. at 27-32.
\8\ Id. at 32.
\9\ Id.
---------------------------------------------------------------------------
b. Whitewater, Monica Lewinsky, and President Clinton
A quarter century after the Office of Legal Counsel in the
Nixon Administration determined that a sitting President could
not be indicted, the Office of Legal Counsel in the Clinton
Administration revisited the issue and reached the same
conclusion.\10\ Specifically, it noted the inherent conflict in
the Chief Executive also being the defendant--``just as a
person cannot be judge in his own case, he cannot be prosecutor
and defendant at the same time.'' \11\ It also agreed with the
earlier OLC conclusion that a criminal indictment would
impermissibly interfere with the President's duties, quoting
the earlier conclusion that ``under our constitutional plan as
outlined in article I, sec. 3, only the Congress by the formal
process of impeachment, and not a court by any process should
be accorded the power to interrupt the Presidency or oust an
incumbent.'' \12\ And it continued its agreement with the
earlier OLC conclusion with respect to the ``non-physical''
interference with the President's duties, namely, that because
``the President is the symbolic head of the Nation,'' ``[t]o
wound him by a criminal proceeding is to hamstring the
operation of the whole governmental apparatus, both in foreign
and domestic affairs.'' \13\
---------------------------------------------------------------------------
\10\ Memorandum from Randolph D. Moss, Assistant Attorney General,
Office of Legal Counsel, ``A Sitting President's Amenability to
Indictment and Criminal Process'' (Oct. 16, 2000) (``2000 OLC Memo''),
reprinted in Opinions of the Office of Legal Counsel, Vol. 24, pp. 222-
260.
\11\ Id. at 228.
\12\ Id. at 229.
\13\ Id. at 230.
---------------------------------------------------------------------------
The 2000 OLC memo also agreed with the concern that
allowing a normal criminal indictment ``would confer upon a
jury of twelve the power, in effect, to overturn'' a
presidential election, which is the only national election for
which there is no substitute.\14\ Again quoting from the 1973
OLC memo, it noted that ``The decision to terminate this
mandate . . . is more fittingly handled by the Congress than by
a jury, and such congressional power is founded in the
Constitution.'' \15\ It also noted that, in contrast to a
normal jury trial, ``[t]he whole country is represented at the
[impeachment] trial, there is no appeal from the verdict, and
removal opens the way for placing the political system on a new
and more healthy foundation.'' \16\
---------------------------------------------------------------------------
\14\ Id. at 231.
\15\ Id.
\16\ Id.
---------------------------------------------------------------------------
Significantly, the 2000 OLC memo also considered several
important intervening decisions by the Supreme Court that
allowed for various actions against a sitting President, and
concluded that none of the holdings in those cases altered its
conclusion. United States v. Nixon \17\ rejected a claim of
executive privilege in response to a subpoena in a criminal
matter against someone other than the President. Nixon v.
Fitzgerald \18\ upheld presidential immunity from defending
civil actions arising out of official conduct. Clinton v. Jones
\19\ denied presidential immunity from defending civil actions
arising out of personal conduct before the President was
elected. OLC took particular note of the fact that in
Fitzgerald, the Supreme Court had ``noted that recognition of a
presidential immunity from such suits `will not leave the
Nation without sufficient protection against misconduct on the
part of the Chief Executive,' in light of other mechanisms
creating `incentives to avoid misconduct' (including
impeachment).'' \20\
---------------------------------------------------------------------------
\17\ 418 U.S. 683 (1974).
\18\ 457 U.S. 731 (1982).
\19\ 520 U.S. 681 (1997).
\20\ 2000 OLC Memo, supra, at 241.
---------------------------------------------------------------------------
In the end, the OLC found particularly compelling that the
process actually set out in the Constitution is one ``that may
be initiated and maintained only by politically accountable
legislative officials''--in significant contrast of a process
of normal indictment and trial, which ``would place into the
hands of a single prosecutor and grand jury the practical power
to interfere with the ability of a popularly elected President
to carry out his assigned constitutional functions.'' \21\
---------------------------------------------------------------------------
\21\ Id. at 246.
---------------------------------------------------------------------------
II. ``Political Accountability'' Is, In My View, The Key
Benefit of Impeachment as the Sole Remedy for Addressing
Illegal Conduct by a Sitting President
I want to focus on that last piece of the OLC argument:
Political accountability. If this body truly believes that
anything in the Mueller report (or otherwise) rises to the
level of ``Treason, Bribery or other high Crimes and
Misdemeanors,'' then the Members of this body will likely be
held accountable politically if the House does not initiative
impeachment proceedings. The flip side of that coin is also
true. If, as I believe is clearly the case, nothing identified
in the Mueller report remotely rises to that level, then the
Members of this body who continue to pursue impeachment
investigations and even formal impeachment proceedings, that
manifestly appear to the public to be an attempt to distract
the President from the performance of his constitutional duties
or, worse, to negate the results of the 2016 election, then
they, too, should be and likely will be held politically
accountable.
In my view, that is as it should be, and it is the
strongest argument in favor of the conclusions drawn by the
Office of Legal Counsel in both the Nixon and Clinton
Administrations. The Constitution was created, after all, by
``We, the People,'' \22\ and by virtue of the political
accountability inherent in the impeachment process, it is
ultimately ``We, the People,'' who will have the final say on
the matter.
---------------------------------------------------------------------------
\22\ U.S. Const., Preamble.
---------------------------------------------------------------------------
Both OLC memos cited above acknowledged that the same
concerns about interference with the President's duties and
undermining the President's authority both domestically and
internationally would arise in the context of impeachment as
well as ordinary criminal prosecution. ``While the impeachment
process might also, of course, hinder the President's
performance of his duties,'' the 2000 OLC acknowledged, the
fact that ``the process may be initiated and maintained only by
politically accountable legislative officials'' would help
ensure that such disruption to the conduct of government at
home and risk to the national interest in international affairs
would arise only in the gravest of circumstances.\23\ So, let
us look at the allegations of Presidential misconduct in that
light, and I think it clear that none remotely rise to that
level, if they can be described as ``misconduct'' at all.
---------------------------------------------------------------------------
\23\ 2000 OLC Memo, supra at 246.
---------------------------------------------------------------------------
Let's start with the claim that the President colluded with
Russia to throw the election his way. The claim has been a
farce since it was first raised, and it is even more so in
light of the exhaustive Part I of the Mueller report admitting
that ``the investigation did not establish that Members of the
Trump campaign conspired or coordinated with the Russian
government in its election interference activities.'' \24\ Even
more laughable is the claim that candidate Trump expressly
invited Russian interference when, responding to the stunning
disclosure of the fact that former Secretary of State Hillary
Clinton had destroyed more than 30,000 emails weeks after they
had been subpoenaed by this body, he jokingly replied that he
hoped Russia could find the missing emails.\25\ Although many
reported Trump's statement as an invitation for Russia to hack
Secretary Clinton's private email server, it was clearly an
acknowledgement that Russia (and other foreign nations) had
probably already done so.\26\ After all, the emails had been on
an unsecure private server Secretary Clinton appears to have
set up deliberately to skirt government disclosure laws, and
the FBI had concluded that it was ``reasonably likely'' \27\
foreign nations had accessed the unsecured emails. In any
event, these frivolous allegations pale in comparison to what
we actually know about campaign collusion with foreign
governments that occurred on the other side of the aisle. We
know that the Hillary Clinton campaign and the DNC both paid
millions of dollars to their law firm, illegally claiming that
was for ``legal services'' when some of the payments were then
funneled to Fusion GPS to pay for opposition research from a
former British intelligence officer, Christopher Steele.\28\ We
know, from notes taken by a State Department official, that Mr.
Steele claimed to have obtained at least some of the scurrilous
information in the dossier he complied from high-ranking
Russian officials, namely Vyacheslav Trubnikov, the former head
of the Russian Intelligence Service, and Vladislav Surkov,
former Deputy Prime Minister of the Russian Federation and a
close advisor to Russian President Vladimir Putin.\29\ And we
know that that Russian-sourced, unverified dossier written by a
former British spy was used (at least in part) by the Obama
Administration to obtain FISA warrants to spy on Members of the
opposition party's presidential campaign team.\30\ This is a
scandal of Nixonian proportions that ought to trigger the
bipartisan concern of this Committee and indeed of every
American, yet you're focused instead on trifles to score
political points.
---------------------------------------------------------------------------
\24\ Special Counsel Robert S. Mueller, III, U.S. Dep't of Justice,
Report on the Investigation Into Russian Interference in the 2016
Election, Vol. I, p. 4 (2019), https://www.document cloud.org/
documents/5955118-The-Mueller-Report.html (``Mueller Report'').
\25\ Id., Vol. 1, p. 62.
\26\ See, e.g., id. at Vol. I, p. 62 (quoting Barbara Ledeen memo
``stating that the `Clinton email server was, in all likelihood,
breached long ago,' and that the Chinese, Russian, and Iranian
intelligence services could `re-assemble the server's email content.'
'').
\27\ The final version of the FBI report was sanitized by then-
Director James Comey so say only that foreign access was ``possible.''
Office of the Inspector General, U.S. Department of Justice, ``A Review
of Various Actions by the Federal Bureau of Investigation and
Department of Justice in Advance of the 2016 Election,'' p. 193 (June
2018) (``IG Report'').
\28\ Verified Complaint, para. 2, Coolidge Reagan Foundation v.
Federal Election Commission, No. 1:19-cv-01493-ESH (D.D.C., filed 5/22/
2019); see also Memo from HPSCI Majority Staff to HPSCI Majority
Members, ``Foreign Intelligence Surveillance Act Abuses at the
Department of Justice and the Federal Bureau of Investigation,'' p. 2
(Jan. 18, 2018) (``Nunes Memo''), available at https://
upload.wikimedia.org/wikipedia/commons/2/25/Nunes_Memo.pdf.
\29\ Kathy Kavalec, ``Notes from Meeting with Chris Steele and
Tatyana Duran of Orbis Security,'' Oct. 11, 2016), available at https:/
/www.scribd.com/document/409446360/CU-FOIA-
Document-Release-Kavalec-Memo-Related-Records (p. 17); see also Chuck
Ross, ``Steele Identified Russian Dossier Sources, Notes Reveal,''
Daily Caller (May 16, 2019), available at https://dailycaller.com/2019/
05/16/steele-dossier-sources-state-department/.
\30\ Nunes Memo, supra, at 2.
---------------------------------------------------------------------------
Let me turn, then, to the claims of obstruction of justice.
Most of the allegations are based on various claims that the
President might have attempted to ``interfere'' with the Russia
investigation or interfere with the investigation of alleged
wrongdoing by his first National Security Advisor, Michael
Flynn. Such claims--and they are manifest in this Committee's
own hearing memo--reflect a fundamental misunderstanding of the
role of the President in our constitutional system. The power
to conduct investigations and to initiate (or decline to
initiate) prosecutions is a core executive power, and the
Constitution makes clear that ``The Executive power''--all of
it--``shall be vested in a President of the United States.''
\31\ The power of the FBI to conduct investigations is
derivative of the President's constitutional authority, as is
the power of the Department of Justice to prosecute. In other
words, the President has full authority under the Constitution
to direct both the investigation and any prosecutions that
might flow from it. That Presidents typically don't get
involved in the day-to-day activities of either the FBI or the
Department of Justice does not negate the constitutional chain
of command.
---------------------------------------------------------------------------
\31\ U.S. Const. Art. II, Sec. 1, cl. 1.
---------------------------------------------------------------------------
Even if it did--or even if Congress could, by statute, take
away from the President a core executive power that the
Constitution assigns to him--the factual allegations simply
don't rise to the level of obstruction in any common sense
understanding of that term. Take the Michael Flynn matter. My
co-panelist here, Caroline Frederickson, claims that the
President asked former FBI Director Comey to ``let [Flynn]
go.'' \32\ Note that even in Ms. Frederickson's version, the
President merely made a request, not an order (with which Comey
did not comply, in any event); a mere unfulfilled request
hardly rises to the level of obstruction. Ms. Frederickson's
version is not even accurate. What Comey claims the President
said, as reported in the Mueller report, is: ``I hope you can
see your way clear to letting this go, to letting Flynn go. He
is a good guy. I hope you can let this go.'' \33\ Given what
Flynn, a highly decorated retired Army Lieutenant General with
a long career of service to the nation, had gone through in his
short tenure on the transition team and as National Security
Advisor (including fairly frivolous claims that he violated the
Logan Act \34\ by speaking with representatives of foreign
governments during the transition--the very thing
``transitions'' are designed for),\35\ the President (and quite
frankly most Americans who have looked at the matter) quite
likely thought that he'd been through enough. Ordering the
exercise of prosecutorial discretion to not pursue the matter
would have been within the President's authority. Merely hoping
that his subordinate would ``see [his] way clear'' to the same
conclusion cannot possibly qualify as obstruction, therefore.
---------------------------------------------------------------------------
\32\ Testimony of Caroline Frederiskson, President, American
Constitution Society, Before the House Committee on the Judiciary (July
12, 2019), at 10.
\33\ Mueller Report, Vol. II, p. 40.
\34\ 18 U.S.C. 953 (``Any citizen of the United States, wherever he
may be, who, without authority of the United States, directly or
indirectly commences or carries on any correspondence or intercourse
with any foreign government or any officer or agent thereof, with
intent to influence the measures or conduct of any foreign government
or of any officer or agent thereof, in relation to any disputes or
controversies with the United States, or to defeat the measures of the
United States, shall be fined under this title or imprisoned not more
than three years, or both'').
\35\ See, e.g., Kara Scannell, ``Flynn charge suggests arcane law
is `leverage' for special counsel investigation,'' CNN.com (Dec. 2,
2017) (quoting Michael Zeldin, former prosecutor and special assistant
to Robert Mueller in the Justice Department, for the claim that Flynn's
outreach to foreign governments was ``facially'' a violation of the
Logan Act). If Flynn's communications with foreign governmentsv during
a transition violated the Logan Act, then necessarily the numerous
communications with and intended to influence foreign governments by a
number of former elected officials who had no such official role would
also violate the Logan Act. For example, John Kerry, Secretary of State
during the Obama Administration, has admitted that he met with Iranian
Foreign Minister Javid Zarif ``three or four times'' after he left
office, to discuss the nuclear agreement that the Obama Administration
had negotiated with Iran and that President Trump withdrew from, and he
reportedly has had numerous meetings or telephone conversations with
various European leaders advising how to save the Iran nuclear deal in
direct contradiction to Trump's policy. Jeff Dunetz, ``Did John Kerry
Violate Logan Act?'' The Jewish Star (May 22, 2019), available at
http://www.thejewishstar.com/stories/did-john-kerry-violate-logan-
act,17566. Indeed, former Secretary Kerry seems to have made a habit of
Logan Act violations to pursue his own policy agendas that were
contrary to those of the Administration then in office. See Dunetz,
supra (noting Kerry's 1985 unapproved friendly meeting in Managua,
Nicaragua, with Nicaraguan Sandanista President Daniel Ortega, in
opposition to the Reagan Administration's support of Ortega's
opponents; his 2006 meeting with Syrian dictator Bashar al-Assad over
then-President George W. Bush's objection; and his 2018 meeting in
London with Hussein Agha, a close associate of Palestinian Authority
President Mahmoud Abbas, in which he reported urged Abbas ``to hold on
and be strong'' until Trump was no longer in the White House and ``not
yield to President Trump's demands.''). Speaker of the House of
Representatives, Nancy Pelosi, has also ``carrie[d] on . . .
correspondence or intercourse with'' a foreign government without the
authority of (and directly contrary to the stated position of) the
Executive Branch, namely, Syria, in violation of the explicit terms of
the Logan Act. See, e.g., Center for Individual Freedom, ``Did Nancy
Pelosi Violate the Logan Act?'' (April 12, 2007), available at http://
www.cfif.org/htdocs/freedomline/current/in_our_opinion/Did-Nancy-
Pelosi-Violate-the-Logan-Act.html. No one has been prosecuted under the
Logan Act since the 1850s, and no one has ever been convicted under it
because, as most scholars agree, the Logan Act, adopted in 1799, is
probably unconstitutional. See, e.g., Kevin M. Kearney, ``Private
Citizens in Foreign Affairs: A Constitutional Analysis,'' 36 Emory L.J.
285, 346 (1987) (asserting that, if prosecuted, the Logan Act would
most likely be unconstitutional for vagueness and overbreadth); Detlev
F. Vagts, ``The Logan Act: Paper Tiger or Sleeping Giant?,'' 60 Am. J.
Int'l L. 268 (1966); but see Daniel Hemel and Eric Posner, ``Why the
Trump Team Should Fear the Logan Act,'' New York Times (Dec. 4, 2017),
available at https://www.nytimes.com/2017/12/04/opinion/trump-team-
flynn-logan-act.html.
---------------------------------------------------------------------------
Or take the firing of Director Comey itself. As I recall,
Democrats were furious with Comey for his breach of Department
of Justice policy in holding a press conference in October 2016
about the reopening of the investigation into Hillary Clinton's
email server \36\ (just as Republicans had been furious with
Comey for holding a press conference the previous July
``exonerating'' her despite the clear evidence that she had
illegally used an unsecure private for government business,
including transmission of classified material).\37\ That alone
was more than enough grounds to fire Comey. Add to that the
fact that Comey advised the President he was not the subject of
the Russia investigation, but then refused to State that fact
publicly when he subsequently testified before Congress, the
real question is why Comey was not fired earlier. As the
President himself has noted, Comey's duplicity on that score
was having serious consequences for the President's conduct of
foreign affairs, one of the very concerns that led the OLC in
both 1973 and 2000 to conclude that sitting Presidents cannot
be indicted while in office. As volume II of the Mueller report
recounts the President's concern: ``I can't do anything with
Russia, there's things I'd like to do with Russia, with trade,
with ISIS, they're all over me with this.'' \38\ In other
words, the President believed (with good reason) that the
investigation risked delegitimizing him on the world stage, and
that misperception was perpetuated by the fact that Comey had
failed to clarify that he was not the center of the
investigation.
---------------------------------------------------------------------------
\36\ See, e.g., Eric Lichtblau, et al., ``F.B.I. Chief James Comey
Is in Political Crossfire Again Over Emails,'' New York Times (Oct. 28,
2016), available at https://www.nytimes.com/2016/10/29/us/politics/fbi-
clinton-emails-james-comey.html.
\37\ See, e.g., Mark Landler and Eric Lichtblau, ``F.B.I. Director
James Comey Recommends No Charges for Hillary Clinton on Email,'' New
York Times (July 5, 2016), available at https://www.nytimes.com/2016/
07/06/us/politics/hillary-clinton-fbi-email-comey.html; Andrew C.
McCarthy, ``FBI Rewrites Federal Law to Let Hillary Off the Hook,''
National Review (July 5, 2016), available at https://
www.nationalreview.com/corner/fbi-rewrites-federal-law-let-hillary-
hook/. The FBI initially found Secretary Clinton's conduct to be
``grossly negligent,'' which is the legal element necessary for
illegality under 18 U.S.C. 793(f). Director Comey instead sanitized
that finding as well, asserting instead that she was merely ``extremely
careless.'' See Victor Davis Hanson, ``Scandals Sanitized with
Linguistic Trickery,'' National Review (June 21, 2018). Director Comey
then assumed the mantle of prosecutor (which was not his role) and
falsely stated that because Secretary Clinton did not have a specific
intent to harm national security, no prosecutor would bring charges
under such circumstances. Specific intent is not an element of the
crime of mishandling classified information, and as the Senate
Committee on Homeland Security and Government Affairs noted in its
Interim Report on the email scandal, ``[o]ther American citizens have
been charged under this statute for less serious actions.'' Interim
Report at 8, citing e.g., United States v. Roller, 42 M.J. 264
(C.A.A.F. 1995) (service member inadvertently packing classified
documents with his personal belongings on his last day before a
transfer); United States v. Gonzalez, 16 M.J. 428 (C.M.A. 1983)
(service member inadvertently intermingling classified messages with
personal mail); Indictment, United States v. Smith, CR 03-0429 (C.D.
Cal. 2003) (FBI agent allowed Chinese informant to handle classified
documents). Comey's preemptive exoneration was only made possible, of
course, by the recusal of Attorney General Loretta Lynch, following her
``chance'' meeting with Secretary Clinton's husband, former President
Bill Clinton, on the tarmac of the Phoenix Airport while Hillary was
under an active investigation.
\38\ Mueller Report, Vol. II, p. 56.
---------------------------------------------------------------------------
Or take the alleged to fire Mueller because of his manifest
conflicts (or at the very least appearance of conflicts) of
interest, namely, his close personal relationship with key
players in the investigation (former Director Comey, whose
illegal leak of information to the New York Times spurred the
appointment of Mueller in the first place; and Rod Rosenstein,
who authorized one of the FISA warrants) as well as with an
organization that Mueller once ran--the FBI--whose alleged
conduct was, or at least should have been, a significant part
of any comprehensive investigation. Note here that the
President, as the nation's Chief Executive, could have fired
Mueller himself merely for the appearance of such conflicts,
and would have been well advised to do just that so that the
investigation could continue without such a taint--avoidance of
even the appearance of conflict is particularly important in
high profile matters such as this one. Mueller was not fired,
and even if he had been, the investigation would not have been
stopped but would have continued.
Again, if that is obstruction, it pales in comparison to
recent examples of real obstruction that have gone largely
unremarked. Take, for example, the scandal involving the IRS
during the previous Administration. I am particularly familiar
with the specifics of this one, because an organization for
which I serve as Chairman of the Board was the victim of the
illegal disclosure of confidential portions of its tax returns.
The Department of Justice refused to grant immunity to Matthew
Meisel, the individual to whom the illegal tax return
information was provided, even though it had determined that it
was not going to prosecute Meisel. Meisel had asserted his
Fifth amendment right against self-incrimination, but the grant
of immunity would have required Meisel to testify as to the
name of his source within the IRS; if the refusal to grant
immunity was done to shield an IRS official who made an illegal
disclosure, then the Department of Justice itself obstructed
justice.
Or take the series of events more directly related to the
2016 Presidential campaign. The Obama Administration's
Department of Justice allowed witnesses in the criminal
investigation involving transmission of classified information
over Secretary Clinton's unsecure private server to participate
in interviews as ``counsel'' even though they were also
witnesses, granted them immunity when they were themselves
implicated in the illegal conduct, allowed them to conduct
their own searches of their laptop computers and personal
phones (some of which were even destroyed--literally, with
sledgehammers--and with them any potentially incriminating
evidence).\39\ None of that is remotely normal operating
procedure; rather, it appears it was designed to shield the
Administration's preferred candidate for President and her
staff from potential criminal liability. If true--and the
evidence certainly points strongly in that direction--then we
have real obstruction of justice, not just the feigned claims
under consideration now.
---------------------------------------------------------------------------
\39\ See, e.g., Andrew C. McCarthy, ``In Politicized Justice,
Desperate Times Call for Disparate Measures,'' National Review (May 19,
2018), available at https://www.nationalreview.com/2018/05/clinton-
email-trump-russia-probes-justice-department-double-standards/.
---------------------------------------------------------------------------
Let me close with this. The incessant harassment of the
President of the United States and his top aides is quite
likely taking a real toll on the President's ability to perform
the duties of the office to which he was elected, and even more
importantly undermining our national interest in the
international arena, the very thing that led the OLC to
determine that a sitting President must be immune from
indictment while he remained President. That such a risk must
be taken when there is documented evidence of serious
wrongdoing that rises to the level of treason, bribery, or
other high crimes and misdemeanors warranting impeachment is a
fundamental and necessary component of the checks and balances
inherent in our constitutionalsystem. But the harm to the
national interest is simply too great for such inquiries to be
undertaking on such weak evidence as we have before us, and
certainly when, by all appearances, the real motive behind the
perpetuation of this investigation strongly appears to be base
partisan interests and continued pique over the loss of the
last President election. There is good reason that, as the OLC
recognized, our Constitution places the power to conduct
impeachment proceedings in the hands of politically accountable
elected officials: ``We the People'' can hold political actors
to account for any abuse of that power for mere partisan gain.
I strongly urge you, therefore, to accept the closing of the
investigation by the Mueller team, to accept the results of the
last election, and to get on with the business of actually
addressing through legislation many of the serious problems our
Nation currently faces.
Chairman Nadler. Thank you.
Professor Gerhardt.
TESTIMONY OF MICHAEL J. GERHARDT
Mr. Gerhardt. Thank you, Mr. Chairman.
It's an honor to be here today and an honor to participate
in today's hearings and to be a part of an important discussion
about constitutional processes for Presidential misconduct.
A good place to begin our discussion, I believe, is with
the Supreme Court's decision in Nixon v. Fitzgerald, a 1982
decision by the Supreme Court that held that the President is
immune to civil lawsuits seeking damages based on his official
conduct.
Near the end of its opinion, the Supreme Court talks
about--recognizes a number of other ways in which the
Constitution allows for the President to be held accountable
for his misconduct.
There are formal mechanisms, for example, such as
impeachment, such as congressional oversight, such as popular
elections, that allows for considerable opportunity and, in
fact, legitimacy for this Committee and Congress to consider
which, if any, possible ways it wants to consider for holding a
President accountable for his misconduct.
There's long history here, but let me cut to the chase. The
first mechanism, congressional oversight, is, of course, a
longstanding legitimacy. The Constitution does not require that
this house follow any particular procedures in trying to
determine whether or not and how it may hold a President
accountable for his misconduct. In fact, just the opposite.
Article I, section 5 of the Constitution vests each body of
Congress--the House, the Senate--with the authority to
determine its own internal rules of governance. The Committee
today is doing nothing more than following through in--
following through in accordance with the House rules. That's
all that's happening. It's as simple as that.
Besides congressional oversight, there are, as we
recognize, other mechanisms. One of them, of course, is
impeachment. I won't dally on that right now, but one thing to
recognize about the possibility of impeachment is that the
House, and particularly this committee, is fully entitled to
consider what evidence there may be on whether a President
committed misconduct, but also, what other evidence needs to be
determined to reach a decision about whether or not to proceed
further on any particular process relating to Presidential
misconduct. It's that simple.
The Constitution does not require a series of hoops that
this Committee has to go through to make its determinations
about what, if anything, to do with Presidential misconduct.
Just the opposite, as I said. The Constitution vests
considerable authority in each Chamber to determine its rules
of governance, and here the committee's following through on
that.
Another mechanism we haven't discussed but could is
censure. I have longed believed that censure is a legitimate
option for this Committee to consider, if and when it
encounters or finds that a President or any other official has
engaged in misconduct. The authority isn't just derived from
the fact the Constitution doesn't disallow censure; the
authority is established by longstanding traditions and
exercise of power within this body.
For example, when Abraham Lincoln was a Member of the House
of Representatives, he introduced a resolution criticizing
President Polk's initiating, in his opinion, the illegal
Mexican War. His resolution didn't pass, but he did vote for a
resolution that did pass 82-81 holding President Polk
accountable for unnecessarily initiating an unlawful war.
That's good enough for me. If President Lincoln thinks it's
good enough for the House, I think it's longstanding authority
we can follow.
Other mechanisms, of course, involve possible lawsuits.
Civil lawsuits based on unofficial misconduct have been
recognized, in Clinton v. Jones, as legitimate and they may
proceed. In addition, of course, there may be the possibility
of criminal trials.
One thing to understand about the possibility of criminal
trials is, as Dr. Eastman just suggested, that there's a
longstanding debate of whether or not a sitting President may
be subject to criminal process. I believe so. I've set forth my
arguments in my written statement. I won't expound on them
here, but I'm happy to answer questions about it.
Of course, a final thing I hope you'll allow me to just
finish with is something that Raoul Berger, long recognized as
one of the great authorities on impeachment, said 30 years ago
in The New York Times. He said by refusing to comply with the
subpoenas of the House Judiciary Committee, President Clinton
is setting himself above the Constitution. No President is
above the law. No President can use his authority or any of his
powers to thwart the powers of this body and therefore to be
above and beyond any accountability to the law.
Thank you very much for the opportunity to be here today.
[The statement of Mr. Gerhardt follows:]
STATEMENT OF MICHAEL J. GERHARDT
It is an honor to be invited to appear before the House
Judiciary Committee to discuss ``Constitutional Processes for
Addressing Presidential Misconduct.'' It is hard to imagine a
more important subject for this Committee to consider. As you
know, this subject is not new for me. It has been at the core
of my academic work. My first law review article, ``The
Constitutional Limits on Impeachment and its Alternatives,''
was published thirty years ago this year. It addressed this
subject, as have two books I subsequently wrote on the law of
impeachment (and its alternatives), one in its third edition,
and several other publications (and testimony in Congress). I
have studied the procedures of this great institution as well
as the Senate, particularly their respective powers of internal
rule-making, investigation, impeachment, censure, and other
subjects I expect we are likely to cover in this hearing. I
hope I may be able to assist your understanding of these
important topics.
A good place to begin is with the Supreme Court's decision
in Nixon v. Fitzgerald, 457 U.S. 731 (1982). In that case, the
Supreme Court, 5-4, ruled that presidents are immune from civil
lawsuits seeking damages based on their official conduct. Near
the end of its opinion, written by Justice Lewis Powell, the
Court emphasized that its decision ``will not leave the Nation
without sufficient protection against misconduct on the part of
the Chief Executive.'' The Court explained, ``There remains the
remedy of impeachment. In addition, there are formal and
informal checks on Presidential action that do not apply with
equal force other executive officials.'' Among the ``informal''
checks are a president's being ``subject to constant scrutiny
by the press,'' as well as his ``need to maintain prestige as
an element of Presidential influence, and a President's
traditional concern for his historical stature.'' The formal
checks recognized by the Court were ``[v]igilant oversight by
Congress,'' impeachment, and popular elections. The Court
emphasized further ``t]hat the existence of alternative
remedies and deterrents establishes that absolute immunity will
not place the President `above the law.' '' I will discuss each
of the formal checks on presidential misconduct briefly as well
as a few other checks, which were not discussed in the Court's
opinion.
First, congressional oversight is a longstanding means for
either chamber, or both, to investigate possible presidential
(and other official) wrong-doing. The legitimacy of this
mechanism is well-settled and beyond question. The Constitution
nowhere says, much less requires, either chamber of Congress to
approve resolutions, of any kind, before the committees of
either or both chambers conduct investigations, issue
subpoenas, take testimony, and gather evidence. All of these
are instrumental to each chamber's performing its
constitutional duties.
The constitutional foundation for either chamber, or
committees in either chamber, to perform these functions can be
traced back to both the British and colonial systems, which
were often a model for the framers, and to the enumerated
powers of the Congress in article I, section 5, of the
Constitution. This section provides that ``Each House may
determine the Rules of its Proceedings.'' We should be grateful
when the Constitution provides a clear answer to a question,
and it plainly does so here. Each chamber may establish its own
rules of internal governance, which include, among other
things, establishing committees, empowering the chairs of those
committees with powers such as issuing subpoenas, and
establishing procedures to follow in law-making and other
legislative functions.
Besides the text as constitutional authority for all this,
we have more than two hundred years of congressional practice
and a few judicial decisions that make crystal clear that each
chamber's latitude to fashion or re-fashion its rules and
procedures is profoundly broad. There is nothing in the
Constitution that requires each chamber to establish
committees, but each did. There is nothing in the Constitution
that prevents each chamber from modifying its rules, and each
have done so many times. There were no committees in early,
pre-civil war impeachments, because there were no committees.
In time, the House and Senate each decided to create committees
to improve their efficiency and abilities to handle their
growing workloads. Those decisions were perfectly legitimate.
In short, there is nothing in the Constitution dictating the
procedure each chamber must use, if any, to issue subpoenas and
to initiate or to conduct investigations. It is the rules of
each chamber, not the Constitution, which dictates the
procedures and rules that each chamber adopts or modifies as it
sees fit.
Resolutions are sometimes useful for shaping or supporting
the House as it chooses how to proceed in exercising its
authority, even when considering impeachments, but the
Constitution does not require it to do so. At present, the
Committee's investigation of misconduct laid out in the Mueller
Report is being done pursuant to all of the Congress' article I
authorities, and the Committee is reasonably considering the
available constitutional remedies for any presidential
misconduct it uncovers, including the remedies discussed in
Nixon v. Fitzgerald and discussed here today. Legitimate
purposes for congressional hearings and investigations are
remarkably broad, as broad as the powers of Congress. They may
be exercised, by a Committee and its Chair pursuant to the
House rules, singularly or in combinations to authorize
subpoenas and conduct investigations in the course of
performing its duties. The rules of this House authorize what
Chairman or this Committee may do in exploring or suggesting
appropriate remedies for executive-branch officials, including
the President, who refuse to comply with lawful subpoenas.
A corollary to the power invested in the Committees to
investigate possible wrong-doing, either on the basis of
impeachment, another power, or some combination of powers, is
the power to issue subpoenas and to hold hearings on whether to
hold witnesses defying subpoenas should be held in contempt of
Congress. By their nature, legislative subpoenas have the force
of law. In United States v. Nixon, 418 U.S. 683 (1974), the
Court unanimously directed President Nixon to comply with a
judicial subpoena ordering him to turn over taped conversations
in the White House to defendants charged with breaking into the
Watergate Hotel. Not long thereafter, the House Judiciary
Committee approved an article of impeachment against Nixon
based on his refusal to comply with a legislative subpoena.
Refusals to comply with duly authorized subpoenas (which are
made pursuant to the House's internal rules of governance) show
contempt for the Rule of law and the legitimate authority of
Congress. Attorneys on behalf of the House or this Committee
may seek enforcement of these subpoenas in court; if committees
were barred by the Constitution to do that, then the President
would be ``above the law.'' That is completely antithetical to
the Constitution we have, and we would no longer be a Nation of
laws and not just the people we happen to like.
It is important not to confuse the demands of the
Constitution with actions undertaken by either chamber pursuant
to the delegations set forth in the Constitution. While the
Supreme Court has said that committees must have ``a legitimate
purpose'' when seeking evidence, doing investigations, or
issuing subpoenas, it is absurd to think that the Court's, or
the Constitution's, directives limit the discretion in each
chamber on the needs to investigate, issue subpoenas, or hold
witnesses in contempt of Congress for failing to comply with
their subpoenas. For example, the House did not approve
resolutions to authorize impeachment inquiries in any of the
first few impeachments considered by the House. Much later,
after each chamber had created committees, the Senate appointed
a special committee, chaired by Sam Ervin of North Carolina, to
look into the circumstances relating to the break-in at the
Democratic headquarters in the Watergate Hotel. The same was
done in the House. Neither chamber approved resolutions to
authorize those initial hearings; the initial investigations
were authorized within the rules of internal governance the
Constitution had given to each chamber of Congress to fashion
on their own. There has been no tradition, rising to the level
of a constitutional command, that requires impeachment
resolutions to be approved by the House to authorize this
Committee to initiate an impeachment inquiry--or to proceed in
any particular way. As long as the Committee functions pursuant
to the House rules (and its inherent authority), it is
functioning properly. Nor was there a House resolution
authorizing this Committee to consider whether or not Justice
William O. Douglas had committed any impeachable offenses. The
matter died in Committee but only after some initial, brief
deliberation and investigation were done.
Nor was there a House resolution authorizing three separate
hearings held by this Committee in 2016, on whether John
Koskinen, then the head of the Internal Revenue Service, had
committed any impeachable offenses. Nor was there one, in the
late 1980s, authorizing this Committee to explore whether to
impeach three federal district judges. All three judges were
eventually impeached, convicted, and removed from office. The
lawsuit filed challenging the procedures held in the Senate was
dismissed because, the Court found, it raised non-justiciable
questions left to the final discretion of the Senate. See
Walter Nixon v. United States, 506 U.S. 224 (1993).
A second mechanism for addressing possible presidential
misconduct - impeachment--was deliberately designed to deviate
from the British practice of impeachment. A people, who had
overthrown a king, were not going to turn around, just after
securing their independence from monarchial tyranny, and create
an office that, like the King, was above the law. In England,
the King could not be impeached, a factor which enraged the
framers' generation to such an extent that the Declaration of
Independence is a list of impeachment articles leveled against
the tyrannical King they were rebelling against. Our president,
unlike the King, is not the embodiment of law and certainly not
immune from the ways in which the Constitution allows him to be
held accountable or to be investigated for misconduct. In
England, anyone (except the King) could be impeached for
anything and could be subject to any penalties Parliament
chose, while the framers wisely limited the scope of
impeachable offenses and the remedies available to Congress to
two sanctions--removal from office and disqualification to
occupy any other federal office.
The distinctions between the British and the American
systems on the law and practice of impeachment are essential to
keep in mind when we consider the scope of impeachable
offenses. Besides telling us that ``The House of
Representatives shall . . . have the sole power of
Impeachment'' (Article I, section 2, clause 5), the
Constitution says that, ``The President and all civil Officers
of the United States, shall be removed from office on
Impeachment and Conviction of Treason, Bribery, or other high
crimes and misdemeanors'' (Article II, section 4). The
Constitution defines treason (Article III, section 3), and
federal criminal statutes define bribery. First, the framers
and ratifiers called impeachable offenses ``political crimes,''
which included ``great'' offenses against the United States,
``attempts to subvert the Constitution,'' when the President
``deviates from his duty'' or ``dare[s] to abuse the power
invested in him by the people,'' breaches of the public trust,
and serious injuries to the Republic. In his influential essay
in The Federalist Papers, Alexander Hamilton declared that
impeachable offenses are ``those offences which proceed from
the misconduct of public men, or, in other words, the abuse or
violation of some public trust'' and ``relate chiefly to
injuries done immediately to the society itself.'' In his
influential lectures on the Constitution, given shortly after
ratification, Justices James Wilson said impeachable offenses
were ``political crimes and misdemeanors.'' In his equally
influential Commentaries on the Constitution, Justice Joseph
Story explained that that impeachable ``offenses'' are
``offenses, which are committed by public men in violation of
their public trust and duties'' and ``partakes of a political
character, as it respects injuries to the society in its
political character.'' The theme that clearly emerges from
early discussions of the scope of impeachable offenses are that
they are not neatly delineated but depend on context and
gravity. As to which or what kinds of misconduct fit into this
terminology, we know that, in the constitutional convention,
George Mason worried that if the President ``has the power of
granting pardons before indictment or conviction, may he not
stop inquiry and prevent detection?'' James Madison responded
that, ``There is one security in this case to which gentlemen
may not have averted: If the President be connected, in any
suspicious manner, with any person, and there be grounds to
believe he will shelter him, the House of Representatives can
impeach him; they can remove him if found guilty; they can
suspend him when suspected, and the power will devolve on the
Vice-President. Should he be suspected also, he may likewise be
suspended and be impeached and removed.'' Madison added, ``This
is a great security.'' We know, from the debates on the scope
of impeachable offenses in the founding era and subsequent
congressional practice (or ``liquidations,'' Madison said), not
all crimes are impeachable (for example, jaywalking) and not
all impeachable offenses are crimes (such as abuses of the
pardon power or President Nixon's ordering the heads of the CIA
and IRS to harass his political enemies). As happened with
former Judge Alcee Hastings (now a member of the House of
Representatives), the President or any other impeachable
official does not have to be found to have committed a felony
to be impeached. Whether any impeachable official has broken a
law, in the judgment of Congress, may be relevant, but it is
not required. See generally Michael J. Gerhardt, The Federal
Impeachment Process: A Constitutional and Historical Analysis
105-113 (3rd edition, University of Chicago Press 2019).
A third option that the Committee should consider as a
possible process to address presidential misconduct is censure.
Censure usually takes the form of a resolution approved by a
majority, in either chamber of Congress. There are two
arguments commonly made against the constitutionality of
censure. The first, initially made by President Andrew Jackson,
was that the explicit authorization of impeachment in the
Constitution necessarily excludes or bars Congress from
deploying any other mechanism for sanctioning the President for
misconduct. The second is that censure is an unconstitutional
bill of attainder, barred in article I, section 9, which
entails either chamber's finding someone guilty and imposing a
punishment on the person in the absence of a judicial trial.
After many years and opportunities to consider the
constitutionality of censure, I concluded that the arguments in
favor of its constitutionality are stronger than the ones
against it. (See Michael J. Gerhardt, The Constitutionality of
Censure, 33 U. Richmond L. Rev. 333 (1997).) First, the idea
behind the censure is not that it is a replacement for
impeachment but instead an option to consider when a
president's misconduct has fallen short of an impeachable
offense. It makes no sense to say impeachment is the only
remedy for presidential misconduct, since it does not, based on
the plain language of the Constitution, only is available for
impeachable misconduct not unimpeachable misconduct.
Second, the text of article I, section 7, of the
Constitution raises a reasonable inference that censure may be
a permissible means for addressing or calling attention to
official misconduct. That section says, ``Judgments in Cases of
Impeachment shall not extend further than to removal from
Office and disqualification to hold any Office of honor, Trust
or Profit under the United States.'' The inference is that
there may some judgments falling short of impeachment,
conviction, and removal, such as censure. Even if impeachment
were the only or exclusive means for formal action by the
Congress to sanction the President for misconduct, it does not
follow that it would preclude other options for dealing with
other kinds of misconduct.
Third, it is reasonable to assume that the First Amendment,
along with the Speech or Debate clause, protects Members
individually in denouncing what they consider to be official
misconduct (even demanding resignations from the perpetrators).
But, if the Constitution protects Members individually in
expressing their opinions, it does not make sense to preclude
them from doing so collectively. There is no doubt that Members
of Congress may circulate a statement denouncing an official
for misconduct and then submit that petition in the
congressional record. Censure is the same thing.
Fourth, a censure is not a bill of attainder because it
imposes no tangible punishment on the person being censured. It
exacts no fines, imprisonment, or any other material, physical,
or substantial punishment on the official being censured. The
person censured may not like or may he or she may disapprove of
the condemnation expressed by the House or the Senate, but they
have their own platforms for expressing their disagreement or
disapproval.
Moreover, the House has approved resolutions, which have
censured the President. Indeed, when Abraham Lincoln was in the
House of Representatives, he proposed a resolution to condemn
President Polk for initiating an illegal war, the Mexican War
(1846-1848). The House rejected his proposed resolution but
instead approved 82-81, with Lincoln casting his vote with the
majority, a resolution declaring that the Mexican War had been
``unconstitutionally and unnecessarily begun.'' If President
Lincoln believed that such censure was constitutional, that has
always been good enough for me--and, I respectfully suggest,
for this institution, too. Later as president, he did not
object on constitutional grounds that there was a joint
Committee assigned to review his handling of the war.
The next remedy to consider as a remedy, or check, on
presidential misconduct is popular election. Obviously, there
are no formal limits on what the public may take, or not take,
into consideration in the electoral process. Yet, one
significant limitation on this check, often overlooked, is the
fact that the Constitution limits presidents to two terms in
office. Both Presidents Nixon and Clinton faced serious threats
of impeachment in their second terms, a time when neither was
subject to any further elections to check what they did in
office.
Yet another way to hold a President accountable for
misconduct is by civil suits seeking damages but for unofficial
or pre-presidential misconduct. Unanimously, the Supreme Court
settled the constitutionality of this option in Clinton v.
Jones, 520 U.S. 681 (1997) when it found such proceedings to be
constitutional.
A final mechanism for addressing presidential misconduct is
criminal trials. There is no question that a President may face
criminal proceedings for misconduct after he has left office.
The more troubling question, for many, is whether a sitting
President may be indicted while in office. The Department of
Justice has taken the position that it is unconstitutional to
indict, prosecute, and/or imprison a President for any possible
criminal misconduct he committed in office or in procuring
office. (The late Ron Rotunda, a distinguished legal scholar,
advised Kenneth Starr, when Starr was the independent counsel
assigned to investigate possible misconduct in the real estate
transaction known as Whitewater, that the President may be
investigated and indicted while in office. Rotunda was unsure
whether the President could be imprisoned while he was still
president.) The principal objection to subjecting the President
to criminal process while he is in office is that, as the
executive branch is the only branch overseen by a single
individual, criminal proceedings would profoundly impede its
functioning because the President would be so distracted by
having to defend himself from possibly going to prison or worse
that the entire executive branch would become paralyzed.
My longstanding position on this question is no secret. I
have long been skeptical of the arguments vesting the President
with absolute immunity from any criminal proceedings while he
is in office. First, the Constitution says no such thing. Just
the opposite. It vests Members of Congress with immunity when
engaged in speech or debate. This clause raises the natural
inference the President has no corresponding immunity from the
Constitution's vesting Members of Congress with immunity for
doing their jobs and its silence on president's having any
similar kind of immunity.
Second, just as the Court reasoned in Clinton v. Jones, it
makes little to no sense to allow a President to use his office
to shield himself from criminal liability (which, by
definition, would be based on his unofficial conduct, but not
to do so for civil infractions based on pre-presidential or
unofficial misconduct. If, for example, a President murdered
someone to silence them from revealing embarrassing information
during his successful campaign for the presidency, it makes no
sense to insist he may never stand trial for that crime for at
least four years, perhaps as many as eight. What if, to modify
the example a little further, he murdered someone on camera to
show that he can do whatever he likes as president? The
temptation to say that is what impeachment is for is too
simplistic, because what happens if the President's party
controls this chamber or the other, or maybe both, and prefer
not to remove the President who has done so many favors for
them. The failure to impeach in that circumstance leaves the
American people with a criminal in the White House.
It has long been said that the Constitution is not a
suicide pact. When, for example, James Buchanan was in the
White House, he believed the Constitution did not allow him to
protect federal forts under siege in South Carolina and
Florida. Obviously, President Lincoln disagreed. The point is
not that our leaders may bend or manipulate the Constitution to
do what they believe is necessary under the circumstances. They
may not. The Constitution provides constraints on presidents
and vests this body with the monumental power of impeachment to
deal with the serious misconduct of the President. The House
may excuse or ratify what a President has done, or it may
exercise its discretion not to impeach the President, whom they
believe may have acted in good faith. The Constitution allows
for that. If the House does not agree with the President or his
actions, it may Act on that basis. The Constitution allows for
that. What the Constitution does not allow is our leaders
breaking the Constitution, or the law, to serve their political
needs. We do not teach that in constitutional law classes, and
you have all taken an oath, as have the President and all the
people who work for him, to defend and support the Constitution
as it is, not as you or this President, would like it to be.
Ultimately, you must decide what kind of precedent you wish
to establish. It is for this Committee and the House to
determine how, and even whether, in what ways they wish to
exercise its powers in response to charges of misconduct by the
most powerful person in the government. It is not for the
President to say or to obstruct congressional deliberations and
investigations or other legitimate functions.
Thirty-five years ago, Raoul Berger, a conservative
constitutional scholar who was widely renowned as one of the
twentieth century's great experts on impeachment, wrote an
opinion in the New York Times responding to President Nixon's
defiance of a legislative subpoena. Mr. Berger said, ``By
refusing to comply with the subpoenas of the House Judiciary
Committee, President Nixon is setting himself above the
Constitution. He would nullify the constitutional provision for
Presidential accountability that was designed to prevent
dictatorial usurpations.'' Berger, Mr.
Nixon's Refusal of Subpoenas: ``A Confrontation with the
Nation,'' N.Y. Times, July 8, 1974. As Mr. Berger explained,
``The House's need for all the facts surrounding suspected
Presidential offences cannot of course be circumscribed by an
executive determination of what is relevant.'' The same can be
said about the need for this committee, or any other committee,
to investigate official misconduct when they have reason to
suspect its occurrence. Mr. Berger went further to emphasize
that such defiance (done by the President or ordered by him)
was plainly a matter the House had a legitimate reason to
investigate. Indeed, he deemed the defiance an impeachable
offense. He noted that, Justice James Wilson in 1791, had
observed presciently that, ``the most powerful magistrates
should be amenable to the law . . . . No one should be secure
while he violates the Constitution and the laws.'' In closing,
Mr. Berger reminded the Nation that President Nixon was a man
and nothing but a man, who ``is subject to the law in all its
manifestations, including, if need be, arrest.'' [I] would
recall to the Nation the words of a great statesman, Edward
Livingston, in the early days of the Republic: ``No Nation ever
yet found any inconvenience from too close an inspection into
the conduct of its officers, but many have been brought to ruin
. . . because the means of publicity had not been secured.'' A
year earlier, Mr. Berger had wisely counseled the Nation and
the Members of this institution that, ``Congress already has
enough power to force the White House to yield documents and
supply witnesses. The question is whether Congress has the
nerve to use it.''
Thank you, again, for the privilege to appear before you on
this important subject. If you have any questions, please do
not hesitate to let me know.
Chairman Nadler. The Committee will now stand in recess for
5 minutes, and Democratic Members will meet over here and the
Republican Members on their side.
This will be a 5-minute recess.
[Recess.]
Ms. Scanlon. [Presiding.] The Committee will now resume.
We'll now proceed under the 5-minute Rule with questions,
and I'll begin by recognizing Mr. Collins.
Mr. Collins. And I thank the chairwoman for doing that.
We've got to go to the floor and take up the 9/11 bill, so I
appreciate that. I won't be long.
Mr. Eastman, let's talk just for a moment. Do you think
there's any possibility that this group of attorneys and
nonattorneys on this Judiciary Committee have any--or their
staffs have any problem understanding the constitutional role
of Congress and oversight of the Administration, on any
Administration?
Mr. Eastman. I don't know the background of every member,
but I think the usual member ought to know the answer to that.
Mr. Collins. That would come from just, if nothing else,
life growing up and taking, you know, government classes
growing up, correct?
One of the things I want to be interested in--and there's a
lot of things that people will talk about today, and we'll get
into a lot of different things. One of the problems that I've
had here--and we talk about constitutional process. We also
talk and the professor here talked about our internal processes
and going on. One of the things that I've just been very
disappointed in our Committee for the last 6 months is our way
we handle subpoenas and the way that we have went through
contempt and how we have rushed through this process and how
we've instead of--you're familiar with subpoenas, correct?
Mr. Eastman. Yes.
Mr. Collins. How they should operate. Has a subpoena ever
been--and from a perception that you ever had, could a--would a
Black's Law Dictionary of a subpoena say that it is an opening
to a dialogue?
Mr. Eastman. No.
Mr. Collins. Would it ever be said that a subpoena should
be to enhance your standing in court?
Mr. Eastman. No.
Mr. Collins. Okay. If that be true, then my question is, do
you believe that it hurts us as an institution when we rush
through these issues of contempt and subpoena? I would love for
you to talk about that for a minute.
Mr. Eastman. Well, look, you know, I want to take up--I
agree with most of what Professor Gerhardt said. The one point
of disagreement I have is I don't think he gave enough credit
to the notion that these fights over congressional subpoenas
and congressional testimonies by the executive are ones that
arise out of a deliberate design function of the Constitution,
which is a separation and a counterbalance of powers.
Yes, the Congress has oversight authority, but there are
limits to that authority, and those limits we typically
classify generally as executive privilege. So, most of the
fights in our Nation's history over the issuance of subpoenas
and the testimony of high-ranking executive officials deal with
that counterbalancing authority that the executive has.
Congress cannot, in its oversight capacity, intrude on the
executive functions, including the confidentiality of
Presidential communications. I think that's well established as
well.
The fight, then, is over whether these current rounds of
subpoenas and demands for testimony are really designed to
intrude on the executive in an unconstitutional way. I think
that's where the conversation has to focus.
Mr. Collins. You talk about conversation and dialogue. This
is one of the things that I've been in Congress, not my life,
but the last 6\1/2\ years, and I've noticed the battles that go
between both Democrat and Republican Administrations in the
Hill. This has been going on forever.
Do you believe it's good--and I've got several questions.
Do you believe it's good for a Committee just to lead, with no
conversation with an individual, to lead with a subpoena?
Mr. Eastman. I don't. There's a lot of negotiation that has
historically gone on on those issues.
Mr. Collins. We went to the floor for contempt on very
limited terms, especially with the Attorney General in a
shortened time here.
The question that I would have here is--if you look at this
from a judge's perspective, when they say--and we talk about--
and by the way, this Committee seems to be unique in this,
because other committees, such as the Intel Committee, actually
negotiated and began to get stuff in the proper way of back and
forth and back and forth. When we go to--if we were to try and
enforce one of these contempts that we have done with lack of
foundation, lack of background, do you believe it hurts this
Committee and this institution as a whole?
Mr. Eastman. It would certainly undermine the claims in the
court that the subpoenas or the efforts were made in good
faith, and that would certainly undermine any court's plan on
giving enforcement effort to those things.
Mr. Collins. I appreciate it. I know in my home county of
Hall County, my judges would look at me and say go back and do
your job before you bring it to me.
So with that, I do appreciate the chair's indulgence. With
that, I'll yield back.
Ms. Scanlon. Okay. Thank you.
The chair recognizes Representative Lofgren for 5 minutes.
Ms. Lofgren. Thanks very much.
I think this is an important hearing. I noted the Ranking
Member's comment that we should be taking up other subjects
instead of this one. I can't help but recall that the
Democrats, in terms of election security, as a first order of
business, introduced H.R. 1 about election security and got no
help from the minority party. My own bill, the SAFE Act, that
we just passed 2 weeks ago to harden election systems got only
one Republican vote. So, that's a bit disingenuous.
Let me talk about the OLC opinion. I've been interested in
that for some time, and I'm wondering whether, Ms. Fredrickson
or Mr. Gerhardt, you believe that the OLC opinion would cover
activities--criminal activities for any President that occurred
prior to that President assuming office.
For example, Spiro Agnew was--left his position for bribery
that was engaged in while he was in Maryland, before he was
Vice President.
What is your view on that?
Ms. Fredrickson. Well, just say two quick things, and then
Professor Gerhardt probably has a more thorough answer.
It's one thing is that the Vice President has not covered.
Ms. Lofgren. No, I understand that. I just meant that as an
example.
Ms. Fredrickson. That's just one of the weaknesses of the
OLC opinion, is it does seem to indicate that--insulate a
President from judicial process in a way that I think is not
consistent with the Rule of Law as understood by the Founders.
Ms. Lofgren. One of the questions I've had, if I can throw
at you, in addition, Professor Gerhardt, is there any limit to
this? Let's say some day in the future, President A is annoyed
with the Vice President, pulls out a gun, shoots the Vice
President in the head in the Oval Office. That would be a
Federal crime. Would that President A in the future be immune
from prosecution?
Mr. Gerhardt. I hope not. I respectfully disagree with the
OLC opinion. Obviously, OLC does fantastic work. They're not
right about everything. Everybody is subject to scrutiny. In
this case, I think they got it wrong.
I've long thought that the President is not special.
Everybody in government is subject to criminal process. Should
anybody in government commit a crime, they're not entitled to
any immunity. That's the Constitution we have.
In fact, to go back to your earlier question about whether
or not a President--we can just--let's keep it hypothetical--
commits a crime before he is elected, and nobody knows about
it. If we find out about it later, it has becomes almost absurd
to imagine that the country has to somehow sit tight for 4 or 8
years until he leaves office before, he is subject to a
criminal trial. If that crime has any relationship to his
election, and it almost certainly does because it would have
affected people's votes to know about it, then I think the
Constitution gets turned on its head.
Ms. Lofgren. Let me ask you this. In terms of the OLC
opinion, obviously they're just looking at Federal
prosecutions. We have 50 States. If the President A shoots
somebody who is not a Federal official, in a State, that would
be a violation of State law. Do you believe that the
Constitution prohibits a State prosecution of a President for a
State law violation?
Mr. Gerhardt. I don't believe it does, but I also should
just point out, for the record, that this Committee and this
House of Representatives has confronted this issue already, to
some extent, in the case of Thomas Porteous.
Ms. Lofgren. Right.
Mr. Gerhardt. Thomas Porteous was a Federal district judge
who nobody knew--
Ms. Lofgren. We were on the Committee during the
impeachment, so--
Mr. Gerhardt. I won't go into details, if you don't want,
but I think they're quite pertinent. The point is he committed
criminal misconduct before he entered his office as a Federal
district judge. He didn't tell the Senate about it, and that
turned out basically to be fraud against the Senate and was the
basis for his impeachment.
Ms. Lofgren. Let me just ask a final question. If the DOJ
opinion is correct, it seems a logical extension is that the
Federal prosecutors could not be expected to actually
investigate a President.
When you think back to the Nixon impeachment, Jaworski was
provided information to the Congress. Certainly, Ken Starr
provided us information. I was on the Committee at that time.
Presumably, that would not be permitted if you could not
prosecute a sitting President.
What do you think of that?
Ms. Scanlon. Time has expired, but you can answer.
Mr. Gerhardt. Well, if a prosecutor finds evidence of
obstruction, for example, then that may be an appropriate time
to consider the propriety and legitimacy of criminal process.
That no one--the very principle of no one being above the
law means just what it says. Nobody's above the law. A
President can't obstruct an impeachment, you know, a House
Committee looking into the possibility of whatever misconduct
he has committed, because if he could do that, then he really
is above the law.
Ms. Lofgren. Thank you. My time has expired.
Ms. Scanlon. Thank you.
The chair recognizes the gentleman from Florida for 5
minutes.
Mr. Gaetz. Thank you, Madam Chair.
Mr. Eastman, you've commented on the potential harms that
can come with a special counsel that's unbridled. Is there
anything you'd like to add to that?
Mr. Eastman. Well, I mean, I want to pick up on something
that Professor Gerhardt said, the notion that the President
would be above the law. One of the things that has troubled me
about the OLC opinions, which are correct, is that potential
criminal liability may not exist at all for a sitting President
for conduct either--criminal conduct either while in office or
before, given the statute of limitations problems.
Both OLC memos recommended to Congress that they could
address that issue, and I would encourage you to do so. That
would ensure that no President is above the law at the end of
the day. It would also ensure--and this is what the OLC memos
are both based on, and they would apply whether the criminal
conduct occurred while in office or before--the unique
responsibilities of the President in our system of government
and the ability of a single prosecutor or a single grand jury
to interfere with that. I think that's why the OLC memos are
correct.
To remedy the one shortcoming from that, you could address
the statute of limitations thing. Chairman Nadler in his
opening statement mentioned that was one of the things that
might be worth considering. I would endorse that.
I do think, though, that the reasoning of the OLC memos,
implicitly in the first one and explicitly in the second, also
extends, although for different--not separation of powers
reasons, but for federalism reasons, to State authorities being
able to indict the President. They're right about that as well.
That door is closed as well for the same reasons that a Federal
indictment against the President, while he is sitting, is
closed.
I think that's right. It's a balancing act. The balance,
given the unique nature of the President's role and the unique
nature of his election, the only one, save for the Vice
President, who is elected nationally, those two things have
contributed to this immunity that OLCs of both sides of the
political aisle have recognized, like I said earlier, over a
span of 50 years.
That doesn't keep the President off the hook, but it does
shift the discussion to a politically accountable body where
people can be held to account if they abuse the investigative
process.
Mr. Gaetz. You made mention of the President's unique
powers and how they interface with an analysis of proper versus
improper conduct, and you also make reference to the dealing
with Director Comey. Is there anything you'd like to add on
that front?
Mr. Eastman. Well, something that Chairman Nadler said in
his opening that I disagree with, and I think is important to
get out here, one of the pieces of legislation that is being
considered is to expose White House communications with the
Department of Justice to identify whether the President is
having any role in prosecutorial decisions. That idea
fundamentally misunderstands the nature of article II of the
Constitution, which says the executive power, all of it, is
vested in the President of the United States.
The Attorney General, in its prosecutorial functions at the
Department of Justice, holds that power derivatively from the
President. The FBI, in its investigative power, holds that
power derivatively from the President. The notion that the
President can't be the one to make the prosecutorial or the
investigative decisions is to completely undermine that core
aspect of article II. So, that idea is just simply misguided.
Now, if the President decided that Director Comey--and I
outline in my testimony why both sides of the political aisle
in Congress were upset enough with Mr. Comey to have warranted
removing him long before the President did, but the President
had that authority himself. I don't think that exercising an
authority that he constitutionally has rises to the level of
obstruction of justice.
Mr. Gaetz. Thank you, Madam Chair. I yield back.
Ms. Scanlon. The chair recognizes the gentlewoman from
Texas for 5 minutes.
Ms. Jackson Lee. I thank the chair very much.
I'm going to read partly a statement by a former Federal
prosecutors. I would also like to add, having been here in 1998
and also for a number of impeachment proceedings regarding
Federal judges, when Mr. Starr handed our friends on the other
side of the aisle the Starr report, they immediately began
impeachment proceedings. That was the historical record that
was created. I don't know if they were concerned about any
factual basis other than the Starr report.
In this instance, we are meticulously listening to scholars
and interviewing individuals by way of subpoena and building
blocks of the constitutional process and as well the building
blocks of the understanding of the American people.
Each of us believes that the conduct of President Trump
described in Special Counsel Robert Mueller's report would, in
the case of any other person not covered by the Office of Legal
Counsel policy against indicting a sitting President, result in
multiple felony charges for obstruction of justice. They
recount the President's efforts to fire Mueller and to falsify
evidence about that report, about that effort, the President's
efforts to limit the scope of Mueller's investigation to
exclude his conduct, and the President's effort to prevent
witnesses from cooperating with investigators probing him and
his campaign.
Professor Fredrickson, do you find agreement with 1,025
prosecutors, the possibility of such?
Ms. Fredrickson. Well, I have to say I've never been a
prosecutor, but I think it's a very impressive list of some of
our Nation's most illustrative prosecutors who have engaged in
lengthy careers. I take what they say very seriously. I think
it is very important for this Committee to go further and
examine the allegations that were laid out in the Mueller
report.
Ms. Jackson Lee. Thank you.
I ask the chairwoman to ask unanimous consent to place the
statement by former Federal prosecutors, part of what I just
read, 1,025 indicate that the President would be subject to
felony charges if he was not the President of the United
States.
Let me also make mention--
Ms. Scanlon. Without objection.
[The information follows:]
MS. JACKSON LEE FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Jackson Lee. Thank you very much--of H. Res. 396,
Resolution of Investigation, Professor Gerhardt--and welcome to
all of you, by the way, thank you so very much for your
presence. It recounts--it's under our rules 6 and 7 of House
practices--it is an instruction for the Judiciary Committee to
investigate. Included in the resolution, it indicates various
elements of investigation, violation of the Foreign Emoluments
Clause of the United States Constitution, violation of the
Domestic Emoluments Clause of the United States Constitution,
obstruction of justice, abuse of power, misfeasance in public
office, malfeasance in public office, failure to protect the
confidentiality of national secrets from enemies, foreign and
domestic--just a litany similar almost to one--Articles of
Impeachment.
Let me ask you this. In your written testimony, you note
that the theme that clearly emerges from early discussions of
the scope of impeachable offenses are that they are not neatly
delineated but depend on context and gravity, of which the
responsibility of this is housed in the Judiciary Committee,
and not all crimes are impeachable and not all impeachable
offenses are crimes?
I would ask you, is impeachment limited to criminal acts?
Mr. Gerhardt. Not at all, Congresswoman. In fact, it's
important to understand that one of the most significant theme
in the Constitutional Convention was that when the delegates
thought of possible impeachable offenses, they were trying to
figure out the scope of them. They never listed something that
wasn't actually a crime; they listed things that were not
crimes. In fact, many impeachments have been based on things
that are not crimes.
Ms. Jackson Lee. I'm going to go on to another--can a
President be impeached for conduct related to improper exercise
of his article II powers, such as removing a subordinate
Federal officer? Let me add, would all communications between
the President and, say, the Department of Justice always be
protected, always be not subject to review or suggesting that
they were inappropriate?
Mr. Gerhardt. I think it's an overreach to suggest the
President somehow can insulate all his communications with
anybody from congressional inquiry. That essentially makes the
Presidency unaccountable.
Ms. Jackson Lee. So, can he be impeached for the improper
exercise of article II?
Mr. Gerhardt. Absolutely.
Ms. Jackson Lee. Can the President be impeached at least
partly on his conduct or her conduct before assuming office?
Mr. Gerhardt. I've suggested both through my statement and
other writings that I think a Presidency could be subject to
impeachment for that.
Ms. Jackson Lee. Clearly, the Mueller report, in Volume I,
has talked about a number of incidences dealing with the
Russian intrusion into our elections that seemingly this
Administration and the Office of the President was involved in.
Mr. Gerhardt. At the very least, this Committee is entitled
to look into things. So, you have got the Mueller report. The
Mueller report obviously contains a lot of different things,
such as possible acts of obstruction of justice. It's quite
reasonable and legitimate for a Committee--for this particular
Committee to look at that and to ask whether or not more
investigation is needed.
There is nothing in the Constitution that precludes the
committee. In fact, there's a lot in the Constitution that
supports this Committee looking at that material and deciding
whether or not it does provide evidence of misconduct or
whether or not it needs more evidence.
Ms. Jackson Lee. I thank the chairwoman. I yield back.
Ms. Scanlon. Okay. Thank you.
The chair recognizes the gentleman from California.
Mr. McClintock. I thank you, Madam Chairman.
Dr. Eastman, the more that comes out on the Mueller report,
the more I become concerned that it appears to me that they
couldn't make a legal case against the President. So they
decided instead to try to make a political case, and they did
so by seriously misrepresenting the evidence that they had.
Give you a few examples.
The John Dowd conversation, the President's lawyer, calls
Robert Kelner, Michael Flynn's lawyer. The Mueller report
quotes only a small portion of the conversation that leaves the
impression that Dowd's trying to influence testimony. It
deliberately omitted a very large part of the conversation
where Dowd made it absolutely crystal clear that it was not
what he was suggesting.
Another example. Konstantin Kilimnik is repeatedly
referenced as a Russian Government operative in his
interactions with Paul Manafort. What Mueller knew but failed
to mention in his report was that Kilimnik was, in fact, a U.S.
intelligence asset.
There was an article just published in The Federalist. It
notes the recent developments in the Concord case that involves
the Internet Research Agency, the internet troll farm at the
center of the Russian Government interference narrative. The
judge in that case asked prosecutors to address also the
specific tie to the Russian Government, and the DOJ responded
the report doesn't say that. It was that next day that Mueller
held his press conference where he walked back the linkage that
he had made between the Russian Government and the internet
troll farms.
So, I have to tell you, having reviewed some of the
material behind the report, I'm concerned this report seriously
misrepresents the supporting evidence that it's supposed to be
based upon. So, I'd like to hear your opinion of the nature of
the report itself and what does it say of the integrity of the
report if exculpatory evidence was deliberately omitted from
that report.
Mr. Eastman. Congressman McClintock, we've seen a number of
stories about the political biases of the Members of Mr.
Mueller's team that have occupied our Nation's attention for
some time now, and I think one of the allegations that the
President attempted to obstruct judges was his alleged
direction to White House Counsel Don McGahn to notify Deputy
Attorney General Rod Rosenstein to fire Mueller because of his
alleged conflict of interest. This is critical and I think it
may well full explain why we don't have in that report some of
the triggering events that led to the report that any competent
investigation would have explored.
Department of Justice guidelines specifically say that
people ought not to be leading an investigation when they have
personal--close, personal relationships with targets or key
witnesses of the investigation or with an organization of the
investigation, and Mr. Mueller had both. He had very close,
personal relationships with FBI Director Comey who, of course,
whose own leak of information to The New York Times is what
triggered the appointment of Mr. Mueller in the first place and
who was a key witness in one of the allegations against the
President about, you know, can you see your way to letting the
case drop against Mr. Flynn? He suffered enough. He had a close
relationship with Mr. Rosenstein who was a signer on one of the
FISA warrants that triggered the whole Russia collusion story
in the first place.
Those things alone ought to have forced Mr. Mueller to
recuse himself because they are conflicts of interest that
would have not led to his appointment under Department of
Justice guidelines in the first place. For the President as the
top national executive to raise the question about those
conflicts is not obstruction of justice; it's doing his job. If
he had said, because of that conflict, we're going to shut down
the whole investigation because I don't like it going after me,
then you might have had obstruction of justice, but that's not
what we have here.
The perpetuation of this myth is rising to the level of
farce, and it is distracting, not only the President and the
country domestically, but on the world stage. In fact, we are
perilously close to the ongoing proceedings here rising to this
very same level that is why the Department of Justice has over
a half a century twice concluded the President ought not to be
indicted while he's in office. They recognize that the
impeachment proceeding is a necessary evil that would suffer
those consequences but on things that are much more grave than
we have at issue here.
Mr. McClintock. Is it fair to say that this report was
corrupted both by personal relationships and by political
biases?
Mr. Eastman. When you see the things that are omitted from
it, that's the conclusion that one has to go.
Mr. McClintock. This is, so far, just the tip of the
iceberg. They're dribbling out all the time and of grave
concern.
Mr. Eastman. When Mr. Horowitz' full IG report comes out on
the origins of this thing, we're going to be shocked to learn
how much more there is.
Mr. McClintock. Thank you.
Ms. Scanlon. The chair recognizes the gentleman from
Tennessee for 5 minutes.
Mr. Cohen. Thank you, Madam Chair.
First, I'd just like to comment the question about
exculpatory evidence being put in and questioning Mr. Mueller's
compliance. Mr. Mueller made clear that he did not suggest the
President should be indicted or was indicted because of the
OLC's opinion that he couldn't be indicted. That's pretty much
dealing--taking exculpatory evidence when you put that in.
We're not indicting him because we can't do it, not because we
didn't find evidence of criminal activity; and if we did, we
would have said so. So that's firstly.
Second, the question about his closeness to Mr. Rosenstein
and Mr. Comey. He was also close to Mr. Barr. So, maybe Mr.
Barr shouldn't have taken the job.
Although existing regulations governing the appointment and
removal of a special counsel already provides some limitations
on the removal of the Attorney General, those can be rescinded
or modified because they're the Attorney General's regulations.
They can modify those protections against unwarranted removal.
The chair has introduced a bill, H.R. 197, that's called
the Special Counsel Independence and Integrity Act, which would
codify those protections and would permit the special counsel
who believes his or her removal was unlawful to contest that
removal in court.
Ms. Fredrickson, what are the benefits of enacting the
current protections that the Department has for unwarranted
removal of a special counsel and make them statutory law?
Ms. Fredrickson. Thank you so much for the question. So,
there are a number of benefits, and one is it's clear that the
Attorney General could repeal the existing regulations, and
there was quite a bit of worry that that might happen. I
believe Senator Graham on the Senate side has introduced a
partner to this legislation for the very same reasons, that the
regulations lay out some important protections for the
independence of the special counsel, but they're not enough
because they're not actually insulated from action by an
Attorney General who might himself want to see, or herself,
want to see an investigation curtailed. So, it's an important
piece of legislation to consider.
I did also just want to go back to the prior question
regarding the factual disputes and the accusation that Special
Counsel Mueller was biased and omitted important information. I
don't want to speak to that, but I do want to say it seems to
me that's actually an extremely strong reason, if people
believe that, to want to get as much of this information into
the public hands as possible but certainly into for this
Committee to review.
Mr. Cohen. I'm sure we'll do that.
How would providing a special counsel a private right of
action to contest his or her unlawful removal deter some of the
conduct described in the Mueller report?
Ms. Fredrickson. Well, to have some kind of a legal
recourse to ensure that a special counsel isn't removed for
less than good cause is an important mechanism to protect that
authority and to protect the integrity of an investigation that
might be necessary.
Mr. Cohen. Then maybe some of the instances that were cited
in the report that might amount to obstruction of justice
wouldn't have occurred because they would have known that they
could--Mr. Mueller could have gone to court to contest those in
an open hearing.
Ms. Fredrickson. Absolutely. Mr. Mueller laid out numerous
examples of where he was thwarted along the way and was
threatened that if he had had some additional legal recourse--
Mr. Cohen. Let me ask. We're going to run out of time.
You've read the Mueller report, have you not?
Ms. Fredrickson. Yes.
Mr. Cohen. All right. How many instances of obstruction of
justice do you believe were shown where all three elements of
obstruction of justice were met?
Ms. Fredrickson. Well, the report itself describes it in
extremely good detail, but there are certainly several examples
dealing with the efforts to get the White House Counsel to fire
Mr. Mueller.
Mr. Cohen. That's one. Then telling Mr. McGahn to lie about
it?
Ms. Fredrickson. Telling him to lie about it and to tell
him to create a fake paper trail. All of those are--
Mr. Cohen. What are some others?
Ms. Fredrickson. The effort to the removal of the FBI
Director. There are--
Mr. Cohen. Asking Mr. Sessions to unrecuse himself?
Ms. Fredrickson. Exactly. Or asking Corey Lewandowski to go
to the Attorney General to tell him to resign, holding the
resignation letter for future use.
Mr. Cohen. So, you don't have a specific number. That's at
least four or five. Do you think there are seven or eight or
four or five or 10, or how many do you think there are?
Ms. Fredrickson. Well, that is something for this Committee
to consider is--
Mr. Cohen. Thank you.
Professor Gerhardt, do you have an opinion on how many
there are?
Mr. Gerhardt. I'm sorry. I missed part of the--
Mr. Cohen. How many cases of obstruction of justice were in
the Mueller report that you think all elements were met?
Mr. Gerhardt. While I've read it, I can't say off the top
of my head how many instances there are, but I do think it's
important to recognize that there is certainly evidence of
possible obstruction in there. There's no question about that.
The report doesn't exonerate the President. Instead, it
actually suggests at several moments that one of the processes
that's important to consider, given the limitations the
prosecutor felt that were imposed on him, was for Congress or
this Committee to look into possible evidence of misconduct.
That's perfectly within the power and legitimacy of this
committee.
Mr. Cohen. Thank you.
I yield back the time I do not have.
Ms. Scanlon. Thank you.
The chair recognizes the gentleman from Texas for 5
minutes.
Mr. Gohmert. Thank you. I appreciate y'all being here.
Dr. Eastman, in looking at page 2--well, it's page 2
because you had a cover sheet, but talks about you're not--you
implied--you're talking about the title of this hearing, that
the Mueller report identified Presidential misconduct that
would trigger whatever constitutional process might have been
available. As a factual matter, I could not disagree more. I
don't find anything remotely rising to the level that would
trigger the one constitutional path designed to address
Presidential misconduct, namely impeachment.
I want to take you back to the prior Administration,
something that was called Fast and Furious. We know crimes were
committed. We had people within our Justice Department who
forced people to sell guns that we knew the sales constituted a
crime because we knew they were going to end up in criminal
hands, and they were required to do it and we know at least one
Federal agent was killed as a result. Somebody somewhere in the
Justice Department had to say, we're not going to--we're not
going to prosecute that. We're not going to investigate it. We
know what happened. Of course, some of us here that reviewed e-
mails that were disclosed, made public thanks to Judicial
Watch, there were crimes being committed and nobody prosecuted.
During the Clinton Administration, my U.S. Attorney friends
back in Texas were telling me they'd been given--and I couldn't
tell you, some of them--I couldn't tell you whether they vote
Democrat or Republican, but I know they cared about justice.
They were saying they'd been directed, let's back off of the
pursuit of drug crimes. Let's start pursuing white-collar
crime. They got that directive.
Somebody within the Department of Justice who knew there
were crimes, drug crimes being committed with regard to Fast
and Furious, knew crimes were committed and at least one
Federal agent died, had directed, we're not going to pursue
those. Just leave them alone. This is where we want to
concentrate, because obviously, no Department of Justice can
pursue every single crime.
In your opinion, just knowing what we know from the public
information, would you say Eric Holder or President Obama, his
boss, obstructed justice?
Mr. Eastman. Congressman, there's an important distinction
to be made here--
Mr. Gohmert. Exactly.
Mr. Eastman. --between prosecutorial discretion and
shielding high-ranking officials. I've outlined in my testimony
several other examples.
Mr. Gohmert. But the drug--shifting from drug prosecution
to white-collar crime, that's prosecutorial discretion.
Mr. Eastman. That's right. Preventing an investigation to
shield the person that committed the crime because he was a
high-ranking official or to alter the FBI investigative report
on the advent of the email personal server and Hillary
Clinton's conduct, to remove the language of one of the
elements of the crime, that rises to obstruction of justice
rather than prosecutorial discretion.
Mr. Gohmert. So, you're talking about when James Comey
eliminated the mental State necessary--
Mr. Eastman. He said mental State was an element; it was
not. The FBI original draft of the report called it gross
negligence, which is an element of the crime. He changed that
language to avoid the element of the crime. That's not
prosecutorial discretion. Those things do rise and have an
intent to obstruct or interfere with the investigation.
Mr. Gohmert. Well, that brings up another issue. Mueller
was required to--or we know--I'm not supposed to really get
into the scopes memos I've reviewed, well, at least some of
them. We know publicly he was allowed to pursue crimes that
came to his attention during the investigation.
Hillary Clinton's emails, private server, disclosure of
classified information, those surely came to his attention. He
would have been authorized, just from what you know publicly,
to pursue and investigate Hillary Clinton, would he not?
Mr. Eastman. Well, he would. Even more directly, the use of
campaign funds funneled through a law firm illegally, not
reported to the Federal Election Commission, to pay for the
Steele dossier, which we now know had as his sources high
Russian-level officials that triggered the entire narrative,
that certainly was within his jurisdiction, and that's not
investigated at all.
Mr. Gohmert. Yes. Well, I appreciate the effort that you
took.
I know all three of you got paid well for being here today.
Mr. Eastman. I missed that.
Mr. Gohmert. For those that don't know that, didn't get
paid at all. Thank you all for the time you took to prepare.
Thank you.
Ms. Scanlon. The chair recognizes Mr. Johnson from Georgia.
Mr. Johnson of Georgia. I thank the chairwoman.
Ms. Scanlon. --for 5 minutes.
Mr. Johnson of Georgia. I've heard more and more
Republicans starting to pronounce Director Mueller's name as
Mueller. I've been hearing that over the past few weeks. Is
that some kind of Republican attempt to somehow besmirch
Director Mueller? Dr. Eastman?
Mr. Eastman. No. Maybe it's bit of my German heritage. My
mother's maiden name was Stein, and the Mueller is the German
pronunciation.
Mr. Johnson of Georgia. It's Mueller, and I've heard so
many people saying Mueller on the other side. It just seems
like there's something that--there's some kind of secret memo
flowing out there.
Listen, you are an officer. You are Chairman of The
Federalist Society's Federalism & Separation of Powers Practice
Group, are you not?
Mr. Eastman. I am, Congressman.
Mr. Johnson of Georgia. So, there's no doubt that you are a
Republican or perhaps a Libertarian, but I suspect more
Republican.
Mr. Eastman. The Federalist Society is a nonpartisan
organization.
Mr. Johnson of Georgia. It raises about $20 million a year
for its various purposes, correct?
Mr. Eastman. I've not looked into the budget of the Federal
Society. I'm a chairman of one of its practice groups.
Mr. Johnson of Georgia. I understand.
Mr. Eastman. I should say that I'm not here speaking on
behalf of The Federalist Society.
Mr. Johnson of Georgia. Certainly. Certainly.
You're familiar with Director Mueller and his reputation.
You know that he is a former Marine officer, that he has
practiced law both in government, outside of government, former
U.S. attorney, United States Assistant Attorney General for the
Criminal Division, a homicide prosecutor in Washington, DC.
He's been the Acting United States Deputy Attorney General and
he's been appointed to Senate-confirmed positions by Presidents
George Herbert Walker Bush, Bill Clinton, George W. Bush, and
Barack Obama. He's a Republican, too.
You're familiar with that, right?
Mr. Eastman. I know he's got a long resume. I didn't know
he was a Republican.
Mr. Johnson of Georgia. You didn't know he was a registered
Republican?
Mr. Eastman. It doesn't matter on my criticism of the
report.
Mr. Johnson of Georgia. Well, a man of that kind of
distinction, you may disagree with some of the conclusions that
he reached, but you have no problem with his truthfulness and
veracity, do you?
Mr. Eastman. Congressman, I have a real problem with his
flipping the burden of proof in Part II of the volume.
Mr. Johnson of Georgia. That's not my question. My
question, you believe him to be a man of good character?
Mr. Eastman. I don't know his character. I've never met the
man. I will say this--
Mr. Johnson of Georgia. Let me ask--
Mr. Eastman. --he staffed his office with people who had an
obvious political bias, and that's troubling to me.
Mr. Johnson of Georgia. Let me ask you this. You're at a
congressional hearing, the title of the hearing being about the
various constitutional processes for addressing Presidential
misconduct.
Now, certainly this hearing that we're having today, you
don't think we're overstepping our bounds by having this
hearing, do you?
Mr. Eastman. I do. I have never said that Congress doesn't
have oversight authority.
Mr. Johnson of Georgia. But, I mean--
Mr. Eastman. It can be abused, and I think--
Mr. Johnson of Georgia. For this hearing, you think that
we're overstepping?
Mr. Eastman. I do. This matter has become a farce.
Mr. Johnson of Georgia. Well, question--
Mr. Eastman. It has become a farce.
Mr. Johnson of Georgia. Question asked and answered. Okay.
Thank you.
Let me ask Professor Gerhardt. Sir, in your written
testimony, you note that the theme that clearly emerges from
early discussions of the scope of impeachable offenses are that
they are not neatly delineated but depend on context and
gravity, and that you say also that not all crimes are
impeachable and not all impeachable offenses are crimes.
I want to ask you this question: Is impeachment limited
only to criminal acts?
Mr. Gerhardt. Not at all. If you'll allow me, I just want
to make sort of two points to clarify a couple of things. The
first is I've not been paid at all. I've got three kids, one in
college. It would be great, but--
Mr. Johnson of Georgia. You're not being paid either to be
here, right?
Mr. Gerhardt. I'm not being paid to come here. I'm not
being paid to be here. It's an honor.
The second point I just want to make is that kind of
follows a little bit from what you've just suggested is a
concern I have, and that is if the President--and I think that
concern has been sort of overshadowed by the efforts to deflect
the attention away from the purpose of this hearing.
If the President of the United States can remove the
special prosecutor, not comply with lawful subpoenas, and is
immune to criminal prosecution while he's in office, that's the
definition of being above the law.
Mr. Johnson of Georgia. Thank you.
I yield back.
Ms. Scanlon. The chair recognizes the gentleman from
Virginia for 5 minutes.
Mr. Cline. Thank you, Madam Chair.
I want to thank our witnesses for taking the time out of
their schedules, without pay, to be here today to participate
in this exercise. I want to also apologize to them because this
is little more than an attempt, a blatant attempt to keep on
life support this ongoing impeachment by any other name. As you
can see from the audience, which is half full and the Committee
which is half full, I'm--there are other things going on on the
Hill today that are of importance as well. There's a hearing
about the border that is down the hall. I think that is a
critical issue about the humanitarian crisis going on at the
border. I would like to see this Committee use its jurisdiction
to look into the humanitarian crisis that's going on at the
border.
I see the TV cameras here, and I want to apologize to
people at home who've tuned in and think they're looking at a
repeat of a past hearing because, no, it's not a repeat. It's
just the same pundits, journalists, and academics here opining
about Volume I or Volume II of the Mueller report, not moving
the ball forward at all, just really spinning the wheels of
this committee, using up time and using up resources to come to
no conclusion, other than the fact that the Democrats want to
impeach this President but they don't have really enough to go
on in the Mueller report. There are other issues that are of
primary importance facing this country that are being addressed
by other committees around this Congress.
As a member of this committee, I worked hard to get on this
committee. It is very disappointing to me that we continue just
to spin the wheels of this committee.
So, Professor Eastman, I will ask you, as a former
prosecutor, I was very confused by Volume II and the Mueller
report, 400 pages of no charges, no recommendations for
charges. Robert Mueller determined he could not exonerate
President Trump of the allegations that he obstructed justice.
I've never seen this as a prosecutor. Have you ever seen a
prosecutor use that line of logic?
Mr. Eastman. No, I haven't. That's my fundamental
disagreement with Part II. It reassigns the burden of proof to
the object of the investigation having to prove his innocence,
rather than the prosecutor having to demonstrate guilt beyond a
reasonable doubt. That violates one of our most fundamental
precepts of fairness and justice in the criminal justice
system, the presumption of innocence.
For him to have said that the President couldn't convince
me he didn't do any of this, when his job was to determine
whether he had enough information to bring an indictment or to
present to this body things that would lead to either an
impeachment or a post President-in-office indictment, that's
what his job was. That is the greatest flaw in Volume II of the
Mueller report.
Mr. Cline. So, in our systems, prosecutors either indict or
not indict, and leave it at that.
So, Mueller here is putting the burden on the President to
prove his innocence instead of the burden being on Mueller to
prove his guilt.
Professor Eastman, can a President obstruct justice by
simply exercising his article II powers?
Mr. Eastman. That's a close question. The reason it's close
and the reason I'm hesitating and not giving you an unqualified
no is if the President exercised his powers with a deliberate
intent to prevent--but we have no evidence of his intent here
at all. What we do have is documented in the report itself,
things like, can you clear the way to let Flynn go because he
suffered enough. That's perfectly within the President's
authority, and there's no even hint of bad intent there. Can
you get rid of Mueller because of his conflicts of interest? No
bad intent; that's clearly within the President's authority.
Mr. Cline. When Bill Clinton tried to alter witness
testimony before a grand jury, that--
Mr. Eastman. That had the necessary intent and was rightly
troubling. Deliberately changing an FBI report to remove an
element of a crime of trafficking into classified information
to shield the Presidential candidate I prefer, that's an
obstruction of justice with the requisite intent.
Mr. Cline. Section 4 of article II says the President, Vice
President, and all civil officers of the United States shall be
removed from office on impeachment for and conviction of
treason, bribery, or other high crimes and misdemeanors.
Do you see anything in Volume II that rises to that level?
Mr. Eastman. I do not, because I don't see anything in
there that demonstrates a requisite intent that would otherwise
alter the President's perfect authority to control the
executive branch.
Mr. Cline. Thank you.
I yield back.
Ms. Scanlon. The chair recognizes the gentleman from
Florida for 5 minutes.
Mr. Deutch. Thank you, Madam Chairman.
Thanks to all the witnesses for being here.
Mr. Gerhardt, your testimony describes several categories
of formal remedies for Presidential misconduct: Congressional
oversight activities, impeachment, censure, election, civil
suits, and criminal trials.
Was Special Counsel Mueller able to pursue any of these
remedies for potential misconduct by President Trump?
Mr. Gerhardt. No, he was not. He was not in the sense of
being able to do anything more than issue his report.
Mr. Deutch. His investigation, just to be clear, was a
criminal investigation, right?
Mr. Gerhardt. Right. It certainly was, yes.
Mr. Deutch. If he found criminal wrongdoing by the
President, could he pursue a trial?
Mr. Gerhardt. He could, or he might have thought he might
be able to, but he also plainly felt, as he said, that he was
restricted by Department of Justice policy on this.
Mr. Deutch. Well, he said he was restricted by the OLC
policy, didn't he?
Mr. Gerhardt. Right. That's what I'm saying, yeah.
Mr. Deutch. Right. So, Presidential misconduct uncovered by
Mueller didn't come with an inherent remedy, did it?
Mr. Gerhardt. No, it did not come with an inherent remedy.
Mr. Deutch. So, the Mueller report itself, the Mueller
report itself was never going to hold the President of the
United States accountable?
Mr. Gerhardt. That is absolutely true. In fact, a couple of
times, a couple of key times when discussing obstruction of
justice, he mentions Congress.
Mr. Deutch. Right. So, exactly. So, Mr. Gerhardt, if the
special counsel cannot hold the President accountable, who can?
Mr. Gerhardt. The answer is nobody.
Mr. Deutch. Nobody can hold the President accountable?
Mr. Gerhardt. Well, that is to say if the President--I may
have misunderstood.
Mr. Deutch. Mr. Gerhardt, Congress can hold the President
accountable, can't it?
Mr. Gerhardt. Of course. I just--
Mr. Deutch. Right. I just wanted to clarify that.
Mr. Gerhardt. Yeah.
Mr. Deutch. Ms. Fredrickson, in your testimony, you note
that special counsel couldn't exonerate President Trump, but he
also couldn't proceed with a criminal remedy because he
accepted the OLC policy that a sitting President cannot be
indicted.
Without those options, what did Mr. Mueller do in his
report?
Ms. Fredrickson. Well, he did the appropriate thing, which
was to refer to Congress to pursue its constitutional
processes, which is, in fact, what this Committee is doing now.
Mr. Deutch. Right. So, he conducted the investigation. He
preserved evidence. He provided analysis of that. Then, as you
quote from the report and as you've just said now, the
separation of powers doctrine authorizes Congress to protect
official proceedings including, those of courts and grand
juries, from corrupt, obstructive acts, regardless of their
source. Further, Special Counsel Mueller closes Volume II by
stating, and I quote, the protection of the criminal justice
system from corrupt acts by any person, including the
President, accords with the fundamental principle of our
government that no person in this country is so high that he is
above the law.
Ms. Fredrickson, do you read these sections of the report
as a referral to Congress to pick up where Mr. Mueller left
off?
Ms. Fredrickson. Well, I certainly read it as saying to
Congress that there is important allegations are incredibly
disturbing, indicate actions by the President and his
associates that are very destructive to Rule of Law and that
Congress needs to examine. I think it has a congressional duty
to--
Mr. Deutch. Thank you very much.
Mr. Gerhardt, on May 30, President Trump said he can't be
impeached because there was no crime. It appeared he was
suggesting that he would need to be found guilty in a criminal
trial to be impeached.
Is that how impeachment works? Is that what impeachment
requires?
Mr. Gerhardt. Impeachment--
Mr. Deutch. Yes or no.
Mr. Gerhardt. Impeachment does not require what the
President said.
Mr. Deutch. Right. You described, in fact, how the Framers
thought of high crimes as violations of public trust and
violations of a duty to our society. Some have argued the
President can't commit the crime of obstruction of justice when
he's exercising his article II powers. We've heard that here
today.
Regardless of the merits of that argument in a criminal
trial, isn't the corrupt use of power exactly the sort of abuse
that the Framers and historical Presidents show qualified as a
high crime?
Mr. Gerhardt. Absolutely. That's why we have it.
Mr. Deutch. Right. So, let me finish with this.
Professor Gerhardt, we heard that impeachment proceedings
have begun without any formal vote for impeachment. Who has the
power to set the proceedings for this body, for Congress to
implement a constitutional power such as impeachment?
Mr. Gerhardt. Congress.
Mr. Deutch. Right. Do the House rules require a formal
authorization of an impeachment inquiry?
Mr. Gerhardt. Absolutely not. It doesn't say that in any
place.
Mr. Deutch. Professor Gerhardt, does the United States
Constitution require a formal authorization of an impeachment
inquiry?
Mr. Gerhardt. Absolutely not. The words ``impeachment
inquiry'' are not in the Constitution.
Mr. Deutch. Thank you.
I yield back.
Ms. Scanlon. Thank you.
The chair recognizes the gentleman from Louisiana for 5
minutes.
Mr. Johnson of Louisiana. Thank you, Madam Chair.
Thank you to the witnesses for being here.
Mr. Gerhardt, over here on your right. Yeah, sorry. We've
got a big committee.
You said in a recent interview with The New Yorker magazine
that, quote, if the President has misled people, unquote, then
it could be the basis for impeachment.
President Obama made a statement that became rather famous
regarding ObamaCare, and he said, quote, if you like your
healthcare plan, you can keep it, unquote. It was famously
called the lie of the year by PolitiFact.
So, I don't mean this to be flippant. I want to ask you a
question about your intellectual consistency. Is that an
impeachable offense?
Mr. Gerhardt. I would not say so, and it's partly because I
think the President made a mistake. Acting in good faith is
pertinent to any impeachment inquiry.
Mr. Johnson of Louisiana. Well, but didn't you just explain
in your last set of answers here that a violation of the public
trust is an impeachable offense? I just heard you say that a
few minutes ago.
Mr. Gerhardt. That's true. Absolutely true.
Mr. Johnson of Louisiana. So, is that not a violation of
the public trust when half of America relied upon that great
promise?
Mr. Gerhardt. I don't think I would say it violated public
trust. I think you need two things at least. One is you need to
have--be doing a bad act. That's one of the things required.
The other is you need to have bad intent. I think there are
times when Presidents obviously are mistaken. I don't think
that was a deliberate falsehood at all. I think that an inquiry
would be justified any time that this Committee or the House
has concern about whether or not the President had said or done
something with bad faith and that was a bad act.
Mr. Johnson of Louisiana. Okay. In a 1999 article that was
entitled, The Lessons of Impeachment History, you quoted
Alexander Hamilton in Federalist 65, and you wrote, quote, in
the Federalist No. 65, Alexander Hamilton warned that
impeachments often would begin in a partisan atmosphere.
Consequently, Hamilton counseled the further along an
impeachment proceeded, the more that Members of Congress needed
to find a nonpartisan basis on which to resolve the
proceedings, unquote. That's what you wrote.
Mr. Gerhardt. Yes.
Mr. Johnson of Louisiana. The Mueller report, of course,
has been out for almost 3 months. As of June 30, there were 79
elected Democrats calling for impeachment and zero Republicans.
Our friend, Representative Amash, is now a registered
Independent.
So the question is, if this body were to take Alexander
Hamilton's advice, shouldn't impeachment be off the table at
this point because there's no way that we find a nonpartisan
basis to proceed?
Mr. Gerhardt. The answer is no. Part of the reason for that
is because if one party decides to obstruct something, that is
to say, doesn't agree, can't find common ground, that can't
hamstring the institution.
Mr. Johnson of Louisiana. Wait a minute. So, are you
suggesting the Republicans are obstructing this now?
Mr. Gerhardt. I'm sorry if that's overstated, but the point
is--
Mr. Johnson of Louisiana. It's greatly overstated. Thank
you for acknowledging, yes.
Mr. Gerhardt. The point is that it may or may not begin in
a partisan atmosphere. You need fact-finding. You need
investigation to determine the evidence and the gravity.
Mr. Johnson of Louisiana. That's what we had with the
Mueller report, right? Two years and $30 million and endless
resources to do this. Didn't we have that?
Mr. Gerhardt. Congressman, the Mueller report does not bind
this committee. It does not bind--
Mr. Johnson of Louisiana. No, but that was begun in a
nonpartisan manner. He was famously the objective arbiter of
all this.
Let me move on.
Mr. Gerhardt. I don't think he was the supreme arbiter of
this.
Mr. Johnson of Louisiana. All right. Well, I mean, we've
known your true colors now when you say we're obstructing, so I
guess--
Mr. Gerhardt. I'm sorry for that phraseology. The point is
that it can become a strategy, let's say, to be able to prevent
bipartisanship by simply choosing not to go along if there are
other political motivations for that.
Mr. Johnson of Louisiana. I got it. I'm just saying, based
upon your earlier scholarship, Alexander Hamilton would want
this farce to end. Okay.
Ms. Fredrickson, on March 22, 2019, your group, the
American Constitution Center, issued a press release entitled,
quote, Mueller Report, How far up the chain did the Trump
campaign's efforts to conspire with Russia go? It quoted you.
You said, quote, the question isn't whether Members of the
Trump campaign conspired with Russia to sway the 2016
elections. We already know they did, unquote.
As you may know, conspiracy to commit an offense or to
defraud the U.S. is a Federal crime under 18 U.S. Code, section
371. I just want to know if you can remind this Committee which
Members of the Trump campaign were charged and prosecuted for
conspiring with Russia.
Ms. Fredrickson. Well, and first, I'd like to say that I
think it's unfortunate that so many on your side of the aisle
don't seem to want to get to the bottom of what happened in
terms of the Russian interference in our election.
Mr. Johnson of Louisiana. To the contrary. Just answer the
question.
Ms. Fredrickson. That all of our intelligence agencies have
indicated that there was sweeping attacks on our elections,
that they were renewed in 2018 with some impact, and that there
are anticipated attacks in 2020.
Mr. Johnson of Louisiana. So, you disagree with the Mueller
report's findings, Volume I?
Ms. Fredrickson. There is much more work for this Congress
to do to understand what Russia has attempted, what they were
successful at, and what they're planning.
Mr. Johnson of Louisiana. I got it, but I'm out of time.
Just to follow up on that. So, with all the vast resources, the
$30 million, the endless supply of investigators, the 500
witnesses, everything that the Mueller report had, did, and was
involved in for 2 years, you think there's yet more for the
people on this dais to dig into, right?
Ms. Fredrickson. I do. There were many people who had
destroyed evidence. There were people who Mueller was not
allowed to interview. So, I do think there's--I'm deeply
worried about the integrity of our elections, and I hope
Congress is as well.
Mr. Johnson of Louisiana. Well, I'm deeply worried about
the integrity of your organization.
Ms. Scanlon. The gentleman's time has expired.
Mr. Johnson of Louisiana. I'm out of time. I yield back.
Ms. Scanlon. The chair recognizes the gentleman from Rhode
Island for 5 minutes.
Mr. Cicilline. Thank you, Ms. Fredrickson, for your last
comment. I know there are many on this Committee who share your
concern and frustration with the obstruction from our
colleagues on the other side of the aisle. I think if Alexander
Hamilton, great Founder who my friend mentioned, were alive,
they would be appalled, frankly, at the conduct of this
Committee and their unwillingness to take on these very serious
issues.
So, I thank Chairman for convening this hearing on this
very important question.
The hearing is entitled, Lessons from the Mueller Report:
``Constitutional Processes for Addressing Presidential
Misconduct.''
Ms. Fredrickson, could you tell me what is the principle
constitutional process available for addressing Presidential
misconduct?
Mr. Eastman. I'm sorry. Was that addressed to me?
Mr. Cicilline. No, it was addressed to Ms. Fredrickson.
Ms. Fredrickson. Well, I mean, Article I lays out Congress'
authorities. They're multiple, but certainly the legislative
power includes oversight as an essential part of it. Also, in
article I is the power to impeach. Those tools are not
alternative. They're--
Mr. Cicilline. Is it fair to say impeachment is the
principal process to address Presidential misconduct?
Ms. Fredrickson. It's one of the processes. There's more of
a continuum. As I mention in my testimony, during the Nixon--
during the Watergate hearings, there was actually--almost a
year went by before there was a referral to the full House for
a vote on the articles. So, it's hard to separate, I would say.
Mr. Cicilline. Okay. Professor.
Mr. Gerhardt. I agree. I think that I agree with everything
she just said. I believe that it is completely within the
discretion of this Committee and the power of this Committee to
be able to, not just read the Mueller report, but to ask the
very reasonable question whether we need to know anything else
to undertake the constitutional responsibilities we have.
Mr. Cicilline. Related to that, many of our Congress'
ability to hold the President accountable rely on the executive
branch providing Congress with information that it needs to
legislate, to conduct oversight, or to consider remedies like
impeachment or censure.
Could you begin, Ms. Fredrickson, to describe generally
what the Supreme Court has said about Congress' power to
conduct investigations and to collect documents and testimony,
including by use of subpoena, how the Court has described our
power in that context?
Ms. Fredrickson. The Court has used very sweeping language
to describe Congress' power. Again, it's inherent and the
legislative power is the power to conduct oversight and
investigations.
Mr. Cicilline. The Court has, in fact, said the power to
secure needed information is an attribute of the power to
legislate, which is a core function of Congress.
Ms. Fredrickson. Well, exactly. I mean, Congress would not
know how to respond to statutory gaps if it can't examine what
the statutory gaps are.
Mr. Cicilline. The perils of Congress being unable to do
its constitutionally required work if an executive branch
decides to prevent witnesses from coming forward or to instruct
witnesses not to cooperate or to not make the documents
available is significant.
Professor, would you speak a little bit about, Professor
Gerhardt, what the consequences of that would be for Congress?
I mean, we have a President, for example, who said publicly
that he is going to fight all efforts by Congress to get
information, that he's going to tell witnesses not to come and
defy subpoenas. What are the implications of that?
Mr. Gerhardt. Well, they're not good. I mean, the
implications of that is, at the very least, Congress should be
concerned. Obviously, this Committee should be concerned. This
Committee is acting perfectly reasonably to consider what
evidence--I don't know if this has been put forward in the
report or anywhere else. If I may, can I read one sentence from
the report from Mr. Mueller that just goes along these lines?
He says, with respect to the President--with respect to
whether the President can be found to have obstructed justice
by exercising his powers under article II of the Constitution,
we concluded that Congress has authority to prohibit a
President's corrupt use of his authority to protect the
integrity of the Administration of Justice.
Congress has that authority. This Committee has that
authority.
Mr. Cicilline. So we have had a number of examples, both
with respect to the White House Counsel Don McGahn and the
former White House Communications Director Hope Hicks, where
the White House asserted something called--that they claim is
absolute immunity, which is basically our right to prevent you
from hearing anything relevant from these witnesses.
Would that sort of obstruction that we're seeing in an
effort to prevent witnesses from appearing before the Committee
or producing documents in and of itself be an appropriate basis
for an article of impeachment against a President, if proved?
Yes, Ms. Fredrickson.
Ms. Fredrickson. Well, if you look again at the Nixon
impeachment, you'll see that the exact kind of obstruction
formed one of the articles in that.
Mr. Cicilline. Professor Gerhardt.
Mr. Gerhardt. Clearly, the Constitution allows this body
and this Committee to consider whether or not obstruction's
happened. It's just important to really emphasize that it
doesn't have to be a technical violation of a statute. It still
may be a problem if the President obstructs justice in any way.
Mr. Cicilline. Thank you.
I yield back, Madam Chair.
Ms. Scanlon. The chair recognizes the gentleman from
California for 5 minutes.
Mr. Lieu. Thank you, Madam Chair.
Ms. Fredrickson, you were asked earlier a question about
Russia. So, for Special Counsel Mueller's investigation, 34
individuals were indicted. Isn't that correct?
Ms. Fredrickson. Yes, that's correct.
Mr. Lieu. At least eight have either pled guilty or been
convicted. Isn't that correct?
Ms. Fredrickson. That's correct.
Mr. Lieu. The Mueller report identifies that Paul Manafort
gave internal polling date to the Russians. Isn't that correct?
Ms. Fredrickson. That's correct.
Mr. Lieu. The Mueller report also shows numerous contacts
between Russians and Trump campaign officials. Isn't that
correct?
Ms. Fredrickson. That's correct.
Mr. Lieu. A fair reading of Volume I of the report would be
that the Trump campaign knew about the Russian interference,
welcomed it, embraced it, gave them internal information, and
knew it was going to help Donald Trump win the election. Isn't
that correct?
Ms. Fredrickson. That is correct.
Mr. Lieu. Okay. Let's move to Volume II now which focuses
on obstruction of justice. In the Nixon impeachment hearings,
the first article of impeachment, what was that on? It was
obstruction of justice, wasn't it?
Ms. Fredrickson. It was obstruction, yes.
Mr. Lieu. All right. Obstruction of justice, certainly
under the Nixon hearings, was important enough to be the very
first article of impeachment. So, if there was obstruction of
justice related to Donald Trump, that would also certainly
qualify as important enough to be an article of impeachment if
it was established, correct?
Ms. Fredrickson. It certainly could be.
Mr. Lieu. Okay. Let me talk to you now, Professor Gerhardt,
about the obstruction we're seeing from the Trump
Administration to congressional oversight investigations. It's
not just on the Mueller report; it's on everything. So, we want
to know, for example, why is the Trump Administration
supporting the lawsuit to eliminate healthcare coverage for
Americans with preexisting conditions? We can't get that
information. We wanted to know why did Trump officials lie
about the census? We couldn't get that information. We can't
even get witnesses simply to show up here even under subpoena.
The Trump Administration is asserting something called
absolute immunity. No court has ever found that, correct?
Mr. Gerhardt. No court has ever found that the President
has kind of absolute immunity you're talking about, no.
Mr. Lieu. Okay. So, given the assertions of this sort of
fake immunity, do you agree that if these witnesses don't show
up, they would be subject, not just to the lawful subpoena, but
also to any potential other consequences, and that they
themselves would be liable for not showing up?
Mr. Gerhardt. Absolutely. The Committee and the chair have
the power to issue subpoenas. Subpoenas are lawful orders. It's
a question of whether or not they're complying with the law
when they're considering whether or not to comply with the
subpoena.
Mr. Lieu. Okay. Then let's talk specifically again about
obstruction of justice. The Mueller report lays out multiple
instances of obstruction of justice. Then the special counsel
goes, all right, here's three elements to establish obstruction
of justice. In multiple cases, he shows that there's
significant evidence of all three elements. Isn't that correct?
Mr. Gerhardt. Right.
Mr. Lieu. On the issue of intent, you can certainly infer
intent from the very words of Donald Trump. Isn't that right?
Mr. Gerhardt. Well, you can infer intent from words,
circumstances, and context.
Mr. Lieu. When Trump fired Comey, he stated that he was
receiving great pressure from the Russia investigation and that
that pressure's been taken off. That's certainly evidence of
intent, isn't it?
Mr. Gerhardt. It's perfectly reasonable to wonder about
what's going on when he says something like that, yes.
Mr. Lieu. When the President goes on national TV and says
he fired Comey because of the Russia thing, that's certainly
evidence of intent, isn't it?
Mr. Gerhardt. It could be evidence of intent, absolutely.
It's certainly the statement of something that sounds like
obstruction.
Mr. Lieu. When the President orders one of their senior
officials to create a fake document, that's certainly evidence
of intent?
Mr. Gerhardt. I'm sorry. I missed that.
Mr. Lieu. When the President orders one of his officials to
create a fake document, that's certainly evidence of intent,
isn't it?
Mr. Gerhardt. Yeah, that's hugely problematic. One, it's
obstruction. I might also go further to say that one of the
consequences of vesting the President with so many
entitlements, such as absolute executive privilege, absolute
immunity, means that if there's any delay that relates to
something criminal 4 years or longer, what happens to the
evidence? That's a tremendous concern. So, that's why I have
argued that I don't think the President's immune to the
criminal process or other processes.
Mr. Lieu. In the Mueller report, Special Counsel Mueller
doesn't even put out any burden of proof. He doesn't shift the
burden. He simply says, because I could not indict under the
DOJ policy, I'm not going to make that prosecutorial judgment.
Isn't that right?
Mr. Gerhardt. That's correct.
Mr. Lieu. I yield back.
Ms. Scanlon. The chair recognizes Mr. Raskin for 5 minutes.
Mr. Raskin. Madam Chair, thank you very much.
Professor Gerhardt, let me start with you. Why does the
Congress have the power to impeach the President but the
President doesn't have the power to dissolve the Congress or to
impeach individual Members? Why does the Congress have the
power to impeach justice in the Supreme Court but they don't
have the power to remove Members of Congress?
Mr. Gerhardt. Well, that's all part of checks and balances.
Of course, Congress has the power, in part, because Congress is
accountable politically.
Mr. Raskin. Yeah.
Mr. Gerhardt. The idea is clearly behind those restrictions
and is, as you well know, the effort to actually prevent the
President or prevent the COURT from becoming all-powerful.
Mr. Raskin. Do you agree with the rhetoric of coequal
branches? Every time the President tramples another
constitutional right or value or principle of separation of
powers, one of my colleagues would get up and say, we're
coequal branches, Mr. President. Please pay attention to us.
Do you agree with that?
Mr. Gerhardt. I do agree.
Mr. Raskin. Before you go on, let me just say I disagree
with it, and I want to tell you why. I don't think it's just
because I'm a Member of Congress, now. When I was a professor
of constitutional law, I disagreed with it. That's not the way
I see the Constitution. The Preamble starts with, We, the
people, to form a more perfect union, and so on, established
the Constitution. The very next sentence says, All legislative
powers are vested in the Congress of the United States.
Then you get pages of description of what the powers of
Congress are, and they are comprehensive. We have the power to
declare war, to regulate domestic commerce--
Mr. Gerhard. Right.
Mr. Raskin. --international commerce. We have the power to
impeach. We have the power to control the seat of government,
post office, copyright, you name it. All of it's in there.
Then for the President, the President is the Commander in
Chief in times of actual conflict, and his job is to take care
that the laws are faithfully executed.
So, the reason I ask the question about impeachment is,
don't we have the power to impeach the President because this
is a representative democracy and article I puts Congress first
and the President works to implement the laws that we've
adopted?
Mr. Gerhardt. I think what you've said makes imminent
sense. I don't want us to be talking past each other.
Mr. Raskin. Yeah.
Mr. Gerhardt. I think that each branch, of course, is
vested with certain powers, and no other branch can interfere
or undermine those powers.
Mr. Raskin. Right. I think at least it's constitutionally
important to note that it's Congress that has the power to
impeach everybody else and they don't have the power to impeach
the Congress--
Mr. Gerhardt. Absolutely right.
Mr. Raskin. --because we are elected by the people.
Mr. Gerhardt. That's correct.
Mr. Raskin. I want to ask you, Ms. Fredrickson, a question
about impeachment, about law and politics. There's been a lot
of confusion in the country about this. Some people say, well,
look, it's very clear that there were 9 or 10 episodes of
Presidential obstruction of justice. It's very clear from
everything that the special counsel wrote and from what he did
in sending two letters of protest to the Attorney General for
misstating and distorting the contents of the report and for--
from his having a press conference to come out and say the
reason that we didn't indict the President was because of the
DOJ policy that we can't indict the President.
So, some people are saying it's very clear there's
Presidential obstruction of justice. Why doesn't Congress just
go ahead and impeach? And then others say, well, it's not just
a legal question. It's a political question because it's
invested with article I, with Congress. It's not in the courts.
The courts don't have the power to do it. Congress has to do
it.
So, Members of Congress have to take into account, with
everything else we're doing, with the border crisis, with
trying to lower prescription drug prices. We've got to think
about public opinion. We've got to think about our districts.
Are those political considerations really proper and
appropriate in terms of what Congress should think about?
Should we be trying to think about this just as judges or
should we think about it in the context of everything else
we're trying to do?
Ms. Fredrickson. I think Professor Gerhardt did an
excellent job of explaining the language in the Constitution,
what are high crimes and misdemeanors. They're not necessarily
crimes. They could be crimes, but they could be other types of
activity that might be fully lawful but might have really
harmed the fabric of the Nation. So, it's a judgment call, and
it's one that Congress has to make, among all of its other
responsibilities.
Mr. Raskin. Okay. Very good.
Professor Gerhardt, let me come back to you. What about the
role of public opinion here? Some people have said, well, only
19 percent of the people supported impeaching Richard Nixon
before the impeachment hearings got started. Forty-six percent
of the people support impeachment today, which is extraordinary
given that we haven't formally launched impeachment inquiry.
He's never reached 50 percent in the polls. He's the only
President since World War II who never has gotten up to 50
percent in his approval ratings.
Some people say, take that into account. The President has
committed high crimes and misdemeanors. He's a sitting duck,
and we should take that into account. Others say public opinion
is irrelevant. And lots of Republicans, the majority of the
Republicans still oppose it. We should take that into account
instead.
What is the role of public opinion in this decision?
Mr. Gerhardt. Well, it's a great question. I think the role
of public opinion is something, of course, that you should
take--you're fully entitled to take into account. It makes
imminent sense for that to happen. At the same time, there are
fiduciary duties within each Chamber of Congress to consider
how to exercise their respective powers, and public opinion,
hopefully, will support that. That's what Congress, of course,
hopes for.
As in the Watergate situation, as you just mentioned, it
took a year at least to be able to figure out through an
investigation, with no help from the President, on whether or
not he had committed any kind of misconduct. It's entirely
possible that public opinion wouldn't necessarily support
Congress or the House or any particular--as it moves along, but
the evidence might inform public opinion and it might turn
around, just like it did with President Nixon.
Mr. Raskin. Finally, I have a yes-or-no question. Does
anyone here think that President Clinton should have been
impeached for what I consider a low crime and misdemeanor,
lying about sex? Does anybody think that the House was correct
in impeaching him?
Mr. Eastman. I think he was. It was not a low crime. It
was--
Mr. Raskin. So yes, you believe that.
Mr. Eastman. It was obstruction of justice.
Mr. Raskin. Let me follow up with you then, Mr. Eastman.
Ms. Scanlon. Time's up.
The chair recognizes Mr. Armstrong for 5 minutes.
Mr. Armstrong. Thank you.
I think that line of questioning is interesting in a lot of
different reasons. One, I think that's where you get the
distinction between political and legal, because lying under
oath is lying under oath, and it's a political distinction as
to whether or not it's a minor crime or a major crime, and I
think Mr. Raskin and I could have long esoteric debates about
this issue in a different format.
But, Professor Eastman, just I want to go to the
obstruction stuff because we were just talking about it a
little bit. Do you think any of the 10 potential episodes of
obstruction outlined in the Mueller report constitute
obstruction of justice?
Mr. Eastman. I do not, because I don't think any of them
demonstrate the necessary intent to obstruct. I think they are
all well within the President's article II authorities.
Mr. Armstrong. Well, and I have two different questions
about that, and one starts with the article II authority. So,
the answer is any President can't be guilty of obstruction just
for exercising their article II authority. Otherwise, we'd get
into this whole separation of powers, and we all want the
President treated like everybody else because that makes
everybody sound, like it is, but there's actually real sound
separation of powers and policy reasons why that's not the
case.
So can you elaborate on that just a little bit?
Mr. Eastman. I agree. I think the two OLC memos that I
focus on extensively in my written testimony outline why that's
the case. The President--and I'll go back to something Mr.
Raskin said. The powers given to the Congress are enumerated.
The power given to the President is unenumerated. It is the
executive power, the entirety of it. The Framers of the
Constitution did that deliberately because the system they had
before that under the articles of confession--confederation was
not working because we did not have an energetic executive who
could execute the law both domestically and deal with anything
that arose on the international scene. That's not a part of a
legislative power; that is a core executive power.
Mr. Armstrong. Well, and then that goes to why that memo
exists. Without that memo in place and the President getting
indicted, can you explain where we end up on separation of
powers and how that would affect essentially governing
structure of the United States?
Mr. Eastman. It would be fundamentally altered. Any
individual prosecutor in any State or in any Federal U.S.
Attorney's Office could effectively unravel the results of an
election. To think that those processes themselves won't become
politicized is naive in the extreme. I think that's why the OLC
memos, both under the Nixon Administration and under the
Clinton Administration--I want to point out. This is a
bipartisan conclusion by different Administrations by the
Office of Legal Counsel.
Mr. Armstrong. Now, and I want to go back to now let's
assume the OLC memo doesn't exist. Does your answer change on
obstruction of justice?
Mr. Eastman. No. No. This goes back to the earlier comment
I made about I think the fundamental flaw in the analysis in
Part II of the report is that it put the burden on the target
of the investigation to prove his innocence, rather than the
normal prosecutorial function, which is, to lay out a case to a
grand jury--in this case, the grand jury would be the House--to
lay out a case of why I have probable cause to bring an
indictment that would lead me to think I could get proof beyond
a reasonable doubt.
The standard is not criminal, I agree with Professor
Gerhardt on that, but it also rises to the level of
impeachment. I don't think anything here, particularly in
comparison to things we've witnessed recently in recent
Administrations, I don't think anything gets close to that
standard.
Mr. Armstrong. Well, and so there's been a lot made--and I
practiced law in Federal court and done criminal law in my
life, and one of the things is we all understand you can have
obstruction even if the underlying crime doesn't exist. There
is a legal way that occurs, and that is actually true. Intent
becomes a huge part of this conversation. It's also true that
it's very rarely charged when you find out there's not an
underlying offense, and one of the reasons is is illegitimate
purpose and legitimate purpose.
Under the best or worst reading of any of these 10
obstruction charges, can you find any one of those that doesn't
have a legitimate purpose?
Mr. Eastman. I don't find any of them that don't have a
perfectly legitimate purpose, and it's a much more plausible
purpose than any of the other stories that are being spun out
to try and prove that there was an illegitimate purpose.
Mr. Armstrong. Thank you.
With that, I yield back.
Ms. Scanlon. The chair recognizes the gentlewoman from
Washington for 5 minutes.
Ms. Jayapal. Thank you, Madam Chair.
Ms. Fredrickson, let me start with you. In his written
testimony, Dr. Eastman argues that a sitting President is
immune from prosecution and that, therefore, impeachment is the
only constitutional remedy for Presidential misconduct.
Do you agree that a President is immune from prosecution?
Ms. Fredrickson. No, I don't believe so. Again, just
Professor Gerhardt laid out, I think rather extensively, the
arguments with the OLC memo. I would say, however, that there
is something interesting about this idea of sort of the
structural arguments that make the President immune. That is,
it's too cumbersome on his or her, hopefully someday,
responsibilities and that, therefore, we just have to then find
not in the text and not in the historical information an
immunity for the President.
If that were the case, we should be able to find inherent
in that text as well an automatic tolling of statute of
limitations for criminal prosecutions. You should really need
to pass legislation to do that. So, it's certainly very
disputed that the President is immune. There have been many
scholars who have contested that, and certainly those who would
also indicate that perhaps there can't be a prosecution but
there could be an indictment. Would an indictment actually be
that cumbersome for a President?
So, they are very important questions. Again, it's
indicative of how important it is for Congress to continue to
examine the evidence underlying the Mueller report.
Ms. Jayapal. You've sort of answered this, but let me ask
the question anyway for anyone who might be listening that
hasn't been following.
Can a President violate Federal criminal law through his
exercise of Article II powers?
Ms. Fredrickson. Oh, absolutely.
Ms. Jayapal. Okay. So, for example, could a President
violate Federal bribery statutes if he or she were to offer a
pardon to a witness in exchange for refusing to cooperate with
a Federal investigator?
Ms. Fredrickson. Yes.
Ms. Jayapal. Okay. Professor Gerhardt, do you agree with
Dr. Eastman that the only constitutional remedy for
Presidential misconduct is impeachment? Just briefly.
Mr. Gerhardt. Not at all. No, he and I respectfully
disagree on that. I tried to lay out in my written statement a
variety of other processes for handling or addressing
Presidential misconduct. Impeachment obviously is one, but
there may be others, depending upon the severity and gravity of
the offense and what else this Committee determines through
legitimate investigation.
Ms. Jayapal. So, let me turn to another subject, and I'll
stay with you, Professor Gerhardt. In Nixon v. Fitzgerald, the
Supreme Court held that the President is entitled to absolute
immunity from damages liability based on his official acts.
Anticipating concerns that that finding would leave Nixon--it
would leave the Nation without sufficient--and these are quoted
words--without sufficient protection against misconduct by the
Chief Executive, and quote, the Court articulated several
formal and informal checks on Presidential misconduct in
addition to the constitutional remedy of impeachment.
The Court described those checks as constant press
scrutiny, vigilant oversight by Congress--
Mr. Gerhardt. Yes.
Ms. Jayapal. --the desire to earn reelection, and the need
to maintain prestige as an element of Presidential influence,
and a President's traditional concern for his historical
stature.
So, can you elaborate on this concept of informal checks?
Mr. Gerhardt. I'll try to as briefly as possible. So, there
are things that are spelled out in the Constitution that
clearly are formal mechanisms for addressing Presidential
misconduct. The quote obviously sort of mentioned those. Among
them are the things you just mentioned as well, impeachment,
public opinion among them. Congressional oversight's a key
element of that.
The informal checks are things that are not done by
government or done in any kind of official way, but they
nevertheless might constrain a President. So, they would
include some of the things that you just mentioned.
For example, concern about maintaining influence;
popularity is important for a President to succeed in office.
At the same time, Presidents are in that unique position of
thinking about what kind of influence or impact they'll have on
the office itself or the Constitution over time. Those things
might constrain them as well.
Ms. Jayapal. Let's talk about press for a second. Because
President Trump has repeatedly referred to the press as the
enemy of the people, but the Court in Fitzgerald named the
press as a really important check on the Presidency.
Mr. Gerhardt. Yes.
Ms. Jayapal. So, when you have a President who openly
encourages violence against the press, praised Representative
Gianforte for assaulting a reporter, regularly attacks judges
who Rule against his policies, and refuses to release his tax
returns, what effect does that have?
Mr. Gerhardt. A terrible effect. That's something, of
course, to take into account as well. The point you're making
is a very sound one, that the press serves a very important
function in this country of trying to put a spotlight on
government and trying to actually allow for transparency in
government. Efforts to obstruct that--I hope I'm using the word
correctly in that context, would be matters of great concern.
Ms. Jayapal. Thank you, Professor.
I yield back.
Ms. Scanlon. Okay. The chair recognizes Mrs. Lesko for 5
minutes.
Mrs. Lesko. Thank you, Madam Chairman.
I have a question for Professor Eastman. It is basically,
Professor Eastman, did the Office of Legal Counsel memo that
holds a sitting President cannot be indicted stop Mueller from
ending his report with a suggestion that President Trump should
be indicted for obstruction of justice? Was there anything
preventing him from doing that?
Mr. Eastman. No, there was not.
Mrs. Lesko. I think this has been asked before maybe,
because I was in the other room in the other Committee actually
being a witness. But, I have read through the Mueller report
several times now, and what popped out to me was the thing
about corrupt intent, that there was no underlying crime, no
corrupt intent. I don't know if you have anything to add on
that, how it would be difficult, is what Mr. Mueller said, my
reading, to prove corrupt intent when there's no underlying
crime.
Mr. Eastman. Well, it's difficult. I agree with Professor
Gerhardt that it's not impossible. We normally look at when
there are two explanations for inaction, one's perfectly
legitimate and the other a stretch to get to corrupt intent. We
tend to Occam's razor, take the short path to say the
legitimate one is probably the right one.
Mrs. Lesko. Well, good. Mr. Eastman, since I wasn't here
the whole time, is there anything that hasn't been said that
you would like to add for our record?
Mr. Eastman. The bottom line conclusion of both OLC memos
that is absolutely correct is precisely why they came to the
conclusion that a sitting President, while he remains
President, cannot be indicted, that the constitutional remedy
is impeachment, because it puts the issue into a body that is
itself politically accountable. That is the most important
piece to take away this.
If the Members of this Committee and of this House truly
believe that the things that Mr. Mueller has identified rise to
the level of high crimes and misdemeanors, you would be being
derelict in your duty not to bring impeachment charges. So,
bring it on.
I don't think there's anything in here and I don't think
the American people will agree that there's anything here that
rises to that level.
The political accountability on that works both ways. If
you don't bring actions against a President who has committed
high crimes and misdemeanors, you will be held to political
account. If you do pursue investigations on things that do not
remotely rise to that level, you will also be held to political
account. That's the beauty of our system, and that's why the
OLC memos reach the conclusion that they do.
Mrs. Lesko. Thank you, Mr. Eastman and the other witnesses.
I yield back my time.
Ms. Scanlon. Thank you.
I recognize myself for 5 minutes.
Professor Gerhardt, the purpose of these hearings are not
just to educate Members of Congress, but also the general
public on topics they may not have had the opportunity to look
at. So, I wanted to take a couple minutes to tap your expertise
as a constitutional scholar and talk about what the authors of
the Constitution considered to be impeachable offenses.
We had a little bit of quotation of Alexander Hamilton in
the Federalist papers earlier, but I wanted to focus on his
declaration that impeachable offenses are, and I quote, those
offenses which proceed from the misconduct of public men, or in
other words, the abuse or violation of the public trust.
Could you comment on what the Founders of our country meant
to be impeachable offenses and any examples they discuss that
might be relevant to our inquiry today?
Mr. Gerhardt. Well, I'll try, certainly. Alexander Hamilton
obviously gets it right; that is to say, his formulation or his
understanding of the scope of impeachable offenses is very
consistent with what we learn from the Constitutional
Convention and what we can infer from the structure of our
Constitution.
So, the core elements or core, I guess, paradigms of
impeachable offenses become things like abuse of power, things
like a breach of public trust, things that seriously injure the
republic.
So, those won't be limited just to technical crimes.
They'll be limited to the kinds of unique things that a
President is able to do. He has the pardon power. In the
Constitutional Convention, it's mentioned that if the pardon
power is used to shield somebody with whom the President is in
criminal conspiracy with--I'm paraphrasing--that's an
impeachable offense. Almost everybody would agree, that would
be an abuse of power.
So, the terms that Mr. Hamilton used and the terms that
others such as Justice James Wilson used in describing the
scope of impeachable offense set up categories, if you will,
set up the kinds of things that would have to be proved in to
constitute an impeachable offense.
Ms. Scanlon. Thank you.
Turning to the history of impeachment proceedings in this
country, and you may have touched on this a little bit already.
Given what you know of the facts laid out in the Mueller
report, would it be appropriate for us to draw any parallels
between the current moment and previous impeachment inquiries?
Mr. Gerhardt. Absolutely. The most obvious is obstruction
of justice. There was an obstruction of justice article
approved by the House Judiciary Committee against President
Nixon.
I will hope that's not serious.
Ms. Scanlon. Happens all the time.
Mr. Gerhardt. Okay. There was an impeachment article
approved by the House against President Clinton.
It's well settled that obstruction of justice may provide a
basis for Presidential impeachment. It's Presidential
misconduct of the worst kind, invading, undermining the other
branches as they try to exercise their legitimate powers to try
and determine the President's accountability.
Ms. Scanlon. We've heard a little bit of discussion about
whether or not this particular President intended to obstruct
justice. You have reviewed the Mueller report, right?
Mr. Gerhardt. I've read it, yes.
Ms. Scanlon. You know that the President refused to answer
any questions regarding the allegations of obstruction of
justice, right?
Mr. Gerhardt. Right.
Ms. Scanlon. So, we wouldn't have those words from his
mouth unless he tweeted them.
Mr. Gerhardt. That's correct. It's important to remember,
the Mueller report doesn't just not bind this Committee or the
House, it doesn't displace this Committee or the House. So, the
Committee certainly has the authority to inquire into these
things.
Ms. Scanlon. I come to this proceeding with really profound
concerns that misconduct by this President isn't limited to
some ill-advised tweets but that his defiance of congressional
subpoenas and the Constitution and the Rule of Law places our
country in jeopardy. Call me old-fashioned, but I strongly have
the opinion that the highest duty of the President is to serve
the public and not to serve himself or to see how much he can
get away with.
Can you speak to what our oversight, impeachment, or other
powers have to do with reigning in an Administration that might
be defying the Rule of Law?
Mr. Gerhardt. They have everything to do with trying to
make sure that a President is accountable under law and
pursuant to the Constitution. So, I won't go into a long line
of hypotheticals, but the important thing to understand is that
it's perfectly reasonable for the Committee to be able to
inquire into the gravity of things, to look at evidence. If
that evidence supports approval of Articles of Impeachment,
that's your job to consider.
There may be a variety of different processes, and we
talked about them, that may be appropriate for holding a
President accountable for misconduct, and we shouldn't lose
sight of all of those different things. All those different
things empower the Committee to do what it's doing.
Ms. Scanlon. Thank you.
With that, I would recognize the gentlewoman from Texas,
for 5 minutes.
Ms. Garcia. Thank you, Madam Chair. Thank you to the
witnesses for being here this morning.
Let me just say that, for me, it's refreshing to hear some
good dialogue about the important role of Congress and the role
that we have in this process, not only in oversight, as has
been laid out by Professor Gerhardt, but in continuing to look
at this, and Ms. Fredrickson, for you to also outline that
these things do take time.
I know that the Ranking Member made a show of talking about
the show that he thinks this is and bringing out the popcorn,
and if we're going to do an impeachment, we ought to just say
it, and this is an impeachment want-to-be--inquiry want-to-be.
We've done the opposite and met the first day--or the second
time we met and immediately gone and said it's time for
impeachment, here's what we're going to do. Everybody would
have said we rushed to judgment one day. So, it's about
striking a balance and making sure that we're thorough and that
we look at everything.
One thing that has really concerned me as a lawyer and as a
former judge--and, Professor Gerhardt, I'll ask you the
question, is this whole notion of the absolute immunity. It
struck me that you said that, no court has ever opined on that.
Mr. Gerhardt. Right.
Ms. Garcia. Is that because no President has ever exerted
this complete absolute immunity?
Mr. Gerhardt. Immunity to criminal process?
Ms. Garcia. Yes, sir.
Mr. Gerhardt. Not yet.
Ms. Garcia. Or even from testifying. If you recall, I for
one, was totally frustrated when Hope Hicks a couple of weeks
ago came to testify, and she walks in with, I forget, four or
five lawyers, they objected to just about every question we
asked. They objected about 155 times. It was anything having to
do from the beginning of her--the minute she walks in the White
House, that she has absolute immunity and she can't testify
about it.
Mr. Gerhardt. No--
Ms. Garcia. It just seemed to me to be one of the most
ridiculous assertions of any kind of privilege.
Mr. Gerhardt. That would be an abuse of privilege, in my
opinion. So privilege, executive privilege, attorney-client
privilege, neither of these protects anyone, including the
President or anybody that works for the President, to engage in
criminal activity.
You wouldn't have the privilege to maintain the
confidentiality of that. In fact, the privilege is maybe not
just waived but doesn't apply to conversations or actions that
may relate to criminal activity.
Ms. Garcia. In her case, it was more than just criminal--
potential criminal activity.
Have you read the transcript? I mean, it was even talking
about her job.
Mr. Gerhardt. Right.
Ms. Garcia. Do you think that she's at a level of position
that is so sensitive that she couldn't just say what she did at
the White House?
Mr. Gerhardt. Nobody is in that position, not even the
President. Executive privilege may well apply to certain
conversations that happened, but they're fairly narrowly
defined. It certainly does not apply to everything the
President does or the executive branch does. If it did, then in
the executive branch, the President would be immune from any
kind of check and balance that can be imposed by either of the
other branches.
Ms. Garcia. It certainly--we've also seen many other Trump
Administration officials either be ordered, not to come or they
come and they don't really respond to many of our questions.
What does that do to this check and balance that you're
referring to?
Mr. Gerhardt. It impedes the authority.
Ms. Garcia. Can you explain so that the average American
understands just why really it's important for us to have Mr.
Mueller come here next week, for Hope Hicks to come, for Jared
Kushner, and all of the subpoenas? This isn't about harassment;
this is about getting to the truth. Because if we don't do
that, what might happen?
Mr. Gerhardt. Yes. I think it is immensely important. As a
constitutional law professor, my client's the Constitution. I
care about the Constitution. I care about it being
appropriately read and appropriately applied and understood.
Among the things that we should understand about the
Constitution is the fact that impeachment is something that
happens at the end of a process. It's not required at the
beginning of a process.
You need to be able to have a process, of which this
Committee clearly, legitimately has the authority to conduct,
to determine what happened, the gravity of what happened, and
whether or not Articles of Impeachment are appropriate or some
other mechanism is appropriate for addressing them.
Ms. Garcia. As you said, impeachment inquiry is not in the
Constitution, the words?
Mr. Gerhardt. No. Impeachment, of course, is. But, Article
I, Section 5, vests this Committee with the--vests this
Congress the authority to adopt rules for its internal
governance. It's the rules that govern the process that each
Committee conducts.
Ms. Garcia. All right. One final question. If you were here
next week with us, what question would you ask Mr. Mueller?
Ms. Scanlon. I'm sorry, it's time.
Mr. Gerhardt. Thank you.
Ms. Scanlon. You may finish. Did you have a quick answer?
Ms. Garcia. Do you have a quick answer? She's--
Mr. Gerhardt. Oh, well, I can think of a lot of questions.
I do think it's important to clarify and make sure you probably
understand the moments in his report when he defers to Congress
and is passing the ball to Congress.
Ms. Garcia. All right. Thank you.
Thank you, Madam Chair. I yield back.
Ms. Scanlon. Okay. I recognize the gentlewoman from Florida
for 5 minutes.
Ms. Mucarsel-Powell. Thank you, Madam Chair.
I wanted to start by asking Mr. Gerhardt a question.
According to the Mueller report, and among other things,
President Trump requested then-Attorney General Jeff Sessions
to reverse his recusal from the special counsel investigation
with an eye toward curtailing its scope. Once President Trump
learned that he was under investigation for potential
obstruction of justice, President Trump then ordered White
House Counsel Don McGahn to have Special Counsel Mueller
removed altogether.
So, President Trump finds out of Jeff Sessions' recusal,
he's extremely upset about this, then he asks Don McGahn to
remove the special counsel. Would this be considered, in your
opinion, impeachable conduct?
Mr. Gerhardt. Well, it certainly raises serious concerns. I
would suggest that those actions do raise legitimate suspicions
about, not just the motivation, but about the effort to
obstruct the investigations into obstructing inquiries that Mr.
Mueller was authorized to conduct.
Ms. Mucarsel-Powell. Can you elaborate on your opinion on
whether obstruction has also occurred after this President took
office as we in this Committee have requested for several fact
witnesses to appear before us, but they have been ordered by
the President to not appear before us? How would you constitute
that?
Mr. Gerhardt. Well, that's an exercise of power that he's
attempting. The question is whether or not that's an abuse of
power. To be able to direct people, not just who are currently
in government, but who used to be in government, from speaking
at all to the Committee strikes me as a matter of great
concern. That could be an abuse of power, because it stymies
the committee's ability to gather evidence and to make
determinations based on that evidence.
Ms. Mucarsel-Powell. Do you have a view on the Miers
holding that there's no absolute immunity for a Presidential
aide? What is your view on that?
Mr. Gerhardt. Now, immunity from what? I just want to
clarify.
Ms. Mucarsel-Powell. From testifying.
Mr. Gerhardt. Oh, from testifying. Tthis is one of those
areas where it has to be kind of carefully circumscribed. So, a
President obviously has some ability to protect certain things,
such as legitimate material protected by executive privilege.
It doesn't extend to preventing people from doing their
constitutional duty, I would say, to be able to comply with a
subpoena and come before the Committee and talk about things
that might have crossed the line and might have been illegal or
unconstitutional.
Ms. Mucarsel-Powell. Okay. Thank you.
A couple of more questions. If the executive branch has
taken this position that a sitting President can't be indicted
as a matter of constitutional law, then Congress probably can't
change it through a statute?
Mr. Gerhardt. Right.
Ms. Mucarsel-Powell. We can at least ensure that the
statute of limitations for any offense doesn't run out before
the President leaves office.
So, this is for Ms. Fredrickson. If the President is immune
from prosecution while in office, do you agree that it would
make sense for us to pass a law tolling the statute of
limitations for any offenses, to ensure that there will
ultimately be a mode of accountability?
Ms. Fredrickson. Well, it certainly seems like something
Congress should examine. I think Professor Eastman actually had
said that he supports that legislation, so maybe it's a place
where you can get strong bipartisan support.
I would hate to think that our Constitution insulates the
President from any kind of accountability while he's President.
So, I think it's very important for Congress to consider how to
ensure that the President is not above the law.
Ms. Mucarsel-Powell. Thank you.
Mr. Gerhardt, are there any other types of legislation that
Congress could enact that would help ensure some measure of
accountability in situations where the Justice Department is
refusing to bring charges against a sitting President?
Mr. Gerhardt. I said quite possibly. For example, I
understand there may be legislation under consideration about
protecting special prosecutors, special counsels from being
easily terminated. That would be one obvious thing to try to do
to try and protect the person whose job it is to consider
whether or not there's any misconduct undertaken by the
President or anybody at his direction that is criminal or
possibly impeachable.
Ms. Mucarsel-Powell. Thank you.
I yield back my time.
Ms. Scanlon. Okay. I just want to remind our Committee
Members that House rules and precedents require us to refrain
from making inappropriate personal references to protected
parties, including the President, and this includes accusations
of dishonesty, criminality, treason, or other unethical or
improper motive.
With that, I would recognize Mr. Jordan for 5 minutes.
Mr. Jordan. Thank you, Madam Chair.
Ms. Fredrickson, what's the name of the organization that
you head up?
Ms. Fredrickson. The American Constitution Society.
Mr. Jordan. American Constitution Society.
Before the Mueller report was made public, and actually 2
days before Attorney General Barr did his first letter to tell
us anything about the report, which was March 24 of this year,
2 days prior to that, on March 22, 2019, you said this. You
said, the question isn't whether Members of the Trump campaign
conspired with Russia to sway the 2016 elections. We already
know they did.
How did you know that before the report even came out?
Ms. Fredrickson. We had seen multiple indictments as well
as prosecutions and convictions of people associated with
Russia.
Mr. Jordan. Shouldn't normally someone who's heading up the
Constitution Society, don't you normally wait until an
investigation is over? In this great Nation, people are
presumed to be innocent until proven otherwise, and you are
already making a finding, stating a finding as the head of the
American Constitution Society, before we even had the report by
the special counsel's office.
Ms. Fredrickson. There was quite a lot of evidence already
in the record. I think the Mueller report then goes further to
lay out multiple instances of contacts between Trump
Administration--
Mr. Jordan. What's interesting--you just mentioned the
Mueller report. What's interesting is that same day that you
said the question isn't whether Members of the Trump campaign
conspired with Russia to sway the elections, we already know
they did, even though we didn't know that because the report
wasn't done. That same day, you wrote an op-ed--you just
mentioned the Mueller report, but you wrote an op-ed that same
day, March 22, 2019, where you said we don't need to read the
Mueller report. Now you're telling us we do.
So, before the report came out, before Bill Barr said
anything, you said we already know he's guilty and, oh, by the
way, don't read the report.
Ms. Fredrickson. Sir, I--
Mr. Jordan. Now, you're telling us we should read the
report?
Ms. Fredrickson. The point was a rhetorical one, that there
is already so much evidence out there that Congress needs to
examine.
Mr. Jordan. That's not what--I've got the headline right
there. We don't need to read the Mueller report. You wrote
that, right?
Ms. Fredrickson. I didn't write the title, actually. If you
read the body of the opinion piece, you will see that it says
Congress needs to get this report.
Mr. Jordan. Here's what you wrote, second paragraph. Mr.
Mueller's report may never go public, but we don't need to peek
at the recommendations, anyway.
So, did you write that?
Ms. Fredrickson. I did.
Mr. Jordan. Okay. So, you did. Now you're telling us we
should read the report?
Ms. Fredrickson. I do, yes. There is much more in there.
Mr. Jordan. Let's read the report--
Ms. Fredrickson. We knew a fair amount already, but now we
know more. Congress needs to actually see the full report and
the evidence underlying it. And--
Mr. Jordan. Let's read the report. Let's read the report.
Ms. Fredrickson. --understand how Russia interfered in our
elections. Which, again, I will state, I think it's troubling
that your side of the aisle doesn't seem to want to examine--
Mr. Jordan. It's troubling that the head of the American
Constitution Society said we already know that he did something
before the report was final. Now, you're telling us to read the
report.
I'm going to read it on page 2. Page 2, the investigation
did not establish that Members of the Trump campaign conspired
or coordinated with the Russian Government in its election
interference activity.
So, first, you said don't read the report. Now, you're
saying read the report. I'm reading the report, and it directly
contradicts what you said as the head of the American
Constitution Society.
Of course, the Democrats think it's fine and appropriate to
have the head of the American Constitution Society come in here
and lecture us today, and tell us today how we need to move
towards impeachment. I fail to get it.
So, what do you say about that sentence right there on page
2, that now that you've changed your mind and say we should
read the report, where Bob Mueller says--the special counsel's
office says the investigation did not establish that Members of
the Trump campaign conspired or coordinated with the Russian
Government in its election interference activities?
Ms. Fredrickson. Well, I think it's unfortunate that you
actually haven't read the opinion piece, which does say that
Congress needs to see the full Mueller report. That is what the
opinion piece says.
Mr. Jordan. We're talking about what you wrote, what you
said, and what Bob Mueller said. You said that--
Ms. Fredrickson. Exactly what the opinion piece says, that
Congress needs to get the full Mueller report.
Mr. Jordan. Mr. Chairman, here's what's interesting. Here's
what's interesting. We have a witness today, who before the
Mueller report was out, said we already know the President's
guilty. Before Bill Barr issued his first statement on the
report, says we already know he's guilty. That same day that
she said those things, she writes an op-ed piece saying don't
read the Mueller report, because if you do, you'll find out
what she claimed is absolutely not true.
Ms. Fredrickson. I would actually--
Mr. Jordan. She's an expert witness today.
Ms. Fredrickson. --once again, would recommend that you
actually read the piece so that you can see what it says.
Mr. Jordan. I read your piece. I read the whole--
Ms. Fredrickson. Apparently not, because it does say that
Congress--
Mr. Jordan. I did just a few minutes ago. I remember the
exchange we had a few months ago right after Bill Barr had sent
his March 24 letter we had a little discussion about this same
type--I can't believe the Democrats invited you back.
I yield back.
Ms. Fredrickson. As I said, it's really unfortunate you
don't actually bother to read beyond the title.
Mr. Jordan. Mr. Chairman, I've got 20 seconds--I've got 4
seconds. I did read--and you know what? I did not follow her
advice. I read the Mueller report. She's telling people not to.
Ms. Scanlon. Okay. I know that the Mueller report then goes
on to say that his conclusions would change if he were given
access to additional evidence.
I now recognize Mr. Swalwell for 5 minutes.
Mr. Swalwell. Thank you, Madam Chair.
Professor Fredrickson, is there a difference between
criminal conspiracy, something that could be proved beyond a
reasonable doubt, and conspiracy?
Ms. Fredrickson. Well, there's certainly a distinction in
how the public talks about it and our understanding. One of the
things I had was hoping to engage in with your colleague here
from the other side of the aisle, is an understanding that all
of our intelligence agencies have indicated that the Russians
had made sweeping attacks on our election systems. There were
multiple contacts with Trump campaign officials that there were
indictments, there were prosecutions. There's an enormous need
for Congress to actually probe more deeply into how this
happened and how to prevent it from happening again.
Mr. Swalwell. When you read the 200 pages of Volume I that
lay out the multiplicity of contacts between the Trump campaign
and the Russians, do you see a failure of imagination by prior
Congresses to write laws that would protect us from this type
of conduct and to have a criminal remedy? Do you see gaps that
occurred, like being approached and not telling the FBI that
foreign adversaries are trying to--
Ms. Fredrickson. I know that Members of Congress are
proposing such legislation. It's important to, again, I think
as part of your authorities, to examine what happened, to see
if in fact the laws were too weak and that allowed hostile
foreign powers to have undue influence on campaign officials
and to understand how influence might have been reached.
So, yes, I think it's a very important part of your duties
to protect the integrity of our elections.
Mr. Swalwell. Thank you, Professor.
Professor Gerhardt, recognizing that the Mueller report
says criminally the laws that we have now, no proof beyond a
reasonable doubt that there was conspiracy in Volume I.
However, functionally, as a Congress and constitutionally,
because of the conduct that's laid out, is there recourse
through impeachment--just in what you have seen in how the
Founders have described impeachment and how prior Congresses
have engaged on impeachment, do you see a recourse for
impeachment based on the 200 pages of just Volume I conduct?
Mr. Gerhardt. I think it's quite reasonable to consider the
propriety of it. I think that it is reasonable to inquire,
investigate, determine evidence, and, again, to be able to hear
witnesses and put together a record that is helpful to Congress
to understand the gravity of whatever's happened, and as well
as just whatever did happen.
One other thing I would just sort of emphasize in this
context is something we've repeated a few times today, but it's
really important to remember, and that is impeachable offenses
don't have to be actual crimes. So, this committee, this House,
or another Committee or another House another time, may decide
that there is something that's really serious, and they may
want to call it conspiracy or they might want to call it
something else, and they're entitled to do that. They have the
authority to conduct proceedings to figure out what's happened.
Mr. Swalwell. In your reading of the report, would you
agree, Professor Gerhardt, that the Mueller team did not look
at financial compromise of the President or anyone on his team?
Mr. Gerhardt. That's correct. Again--
Mr. Swalwell. I'll just let me add on to that. Would you
agree that an impeachment inquiry would not prohibit the
inquiring body from looking at financial compromise?
Mr. Gerhardt. That's correct.
Mr. Swalwell. Great. Thank you.
I would yield back. Thank you.
Ms. Scanlon. Okay. Thank you.
Okay. This will conclude today's hearing. I want to thank
all the witnesses for attending. We really appreciate your
insights.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
Without objection, the hearing's adjourned.
[Whereupon, at 11:47 a.m., the Committee was adjourned.]
APPENDIX
MS. JACKSON LEE FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]