[House Report 116-346]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-346
_______________________________________________________________________
IMPEACHMENT OF DONALD J. TRUMP
PRESIDENT OF THE UNITED STATES
----------
R E P O R T
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
together with
DISSENTING VIEWS
TO ACCOMPANY
H. Res. 755
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 15, 2019.--Referred to the House Calendar and ordered to be
printed
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-346
_______________________________________________________________________
IMPEACHMENT OF DONALD J. TRUMP
PRESIDENT OF THE UNITED STATES
__________
R E P O R T
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
together with
DISSENTING VIEWS
to accompany
H. Res. 755
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 15, 2019.--Referred to the House Calendar and ordered to be
printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
* 38-640 WASHINGTON : 2019
COMMITTEE ON THE JUDICIARY
Jerrold Nadler, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking 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 JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM MCCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Majority Staff
Amy Rutkin, Chief of Staff
Perry Apelbaum, Staff Director and Chief Counsel
John Doty, Senior Advisor
Aaron Hiller, Deputy Chief Counsel and Chief Oversight Counsel
Shadawn Reddick-Smith, Communications Director
Daniel Schwarz, Director of Strategic Communications
Moh Sharma, Director of Member Services and Outreach and Policy Advisor
David Greengrass, Senior Counsel
John Williams, Parliamentarian and Senior Counsel
Arya Hariharan, Deputy Chief Oversight Counsel
Barry Berke, Special Counsel
Norman Eisen, Special Counsel
Ted Kalo, Special Counsel
James Park, Chief Counsel of Constitution Subcommittee
Sophia Brill, Counsel
Milagros Cisneros, Counsel
Charles Gayle, Counsel
Maggie Goodlander, Counsel
Benjamin Hernandez-Stern, Counsel
Sarah Istel, Counsel
Danielle Johnson, Counsel
Joshua Matz, Counsel
Matthew Morgan, Counsel
Matthew N. Robinson, Counsel
Kerry Tirrell, Counsel
Madeline Strasser, Chief Clerk
Rachel Calanni, Professional Staff
Jordan Dashow, Professional Staff
William S. Emmons, Professional Staff
Julian Gerson, Professional Staff
Priyanka Mara, Professional Staff
Jessica Presley, Director of Digital Strategy
Kayla Hamedi, Deputy Press Secretary
Minority Staff
Brendan Belair, Staff Director, Counsel
Bobby Parmiter, Deputy Staff Director, Chief Counsel
Ashley Callen, Chief Oversight Counsel
Danny Johnson, Oversight Counsel
Jake Greenberg, Oversight Counsel
Paul Taylor, Chief Counsel, Constitution Subcommittee
Daniel Flores, Counsel
Ryan Breitenbach, Counsel
Jon Ferro, Parliamentarian, Counsel
Erica Barker, Deputy Parliamentarian
Ella Yates, Member Services Director
Andrea Woodard, Professional Staff Member
Jess Andrews, Communications Director
Amy Hasenberg, Press Secretary
Annie Richardson, Digital Director
C O N T E N T S
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Page
Introduction..................................................... 3
The Impeachment Inquiry.......................................... 6
Constitutional Grounds for Presidential Impeachment.............. 28
Article I: Abuse of Power........................................ 75
Article II: Obstruction of Congress.............................. 132
Hearings......................................................... 162
Committee Consideration.......................................... 162
Committee Votes.................................................. 162
Committee Oversight Findings..................................... 179
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 179
Duplication of Federal Programs.................................. 179
Performance Goals and Objectives................................. 179
Advisory on Earmarks............................................. 179
Dissenting Views................................................. 181
Appendix......................................................... 631
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-346
======================================================================
IMPEACHMENT OF DONALD JOHN TRUMP, PRESIDENT OF THE UNITED STATES
_______
December 15, 2019.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H. Res. 755]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 755) impeaching Donald John Trump,
President of the United States, for high crimes and
misdemeanors, having considered the same, report favorably
thereon pursuant to H. Res. 660 with an amendment and recommend
that the resolution as amended be agreed to.
The amendment is as follows:
Strike all that follows after the resolving clause and insert
the following:
That Donald John Trump, President of the United States, is impeached
for high crimes and misdemeanors and that the following articles of
impeachment be exhibited to the United States Senate:
Articles of impeachment exhibited by the House of Representatives of
the United States of America in the name of itself and of the people of
the United States of America, against Donald John Trump, President of
the United States of America, in maintenance and support of its
impeachment against him for high crimes and misdemeanors.
article i: abuse of power
The Constitution provides that the House of Representatives ``shall
have the sole Power of Impeachment'' and that the President ``shall be
removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors''. In his conduct of the
office of President of the United States--and in violation of his
constitutional oath faithfully to execute the office of President of
the United States and, to the best of his ability, preserve, protect,
and defend the Constitution of the United States, and in violation of
his constitutional duty to take care that the laws be faithfully
executed--Donald J. Trump has abused the powers of the Presidency, in
that:
Using the powers of his high office, President Trump solicited the
interference of a foreign government, Ukraine, in the 2020 United
States Presidential election. He did so through a scheme or course of
conduct that included soliciting the Government of Ukraine to publicly
announce investigations that would benefit his reelection, harm the
election prospects of a political opponent, and influence the 2020
United States Presidential election to his advantage. President Trump
also sought to pressure the Government of Ukraine to take these steps
by conditioning official United States Government acts of significant
value to Ukraine on its public announcement of the investigations.
President Trump engaged in this scheme or course of conduct for corrupt
purposes in pursuit of personal political benefit. In so doing,
President Trump used the powers of the Presidency in a manner that
compromised the national security of the United States and undermined
the integrity of the United States democratic process. He thus ignored
and injured the interests of the Nation.
President Trump engaged in this scheme or course of conduct through
the following means:
(1) President Trump--acting both directly and through his
agents within and outside the United States Government--
corruptly solicited the Government of Ukraine to publicly
announce investigations into--
(A) a political opponent, former Vice President
Joseph R. Biden, Jr.; and
(B) a discredited theory promoted by Russia alleging
that Ukraine--rather than Russia--interfered in the
2016 United States Presidential election.
(2) With the same corrupt motives, President Trump--acting
both directly and through his agents within and outside the
United States Government--conditioned two official acts on the
public announcements that he had requested--
(A) the release of $391 million of United States
taxpayer funds that Congress had appropriated on a
bipartisan basis for the purpose of providing vital
military and security assistance to Ukraine to oppose
Russian aggression and which President Trump had
ordered suspended; and
(B) a head of state meeting at the White House, which
the President of Ukraine sought to demonstrate
continued United States support for the Government of
Ukraine in the face of Russian aggression.
(3) Faced with the public revelation of his actions,
President Trump ultimately released the military and security
assistance to the Government of Ukraine, but has persisted in
openly and corruptly urging and soliciting Ukraine to undertake
investigations for his personal political benefit.
These actions were consistent with President Trump's previous
invitations of foreign interference in United States elections.
In all of this, President Trump abused the powers of the Presidency
by ignoring and injuring national security and other vital national
interests to obtain an improper personal political benefit. He has also
betrayed the Nation by abusing his high office to enlist a foreign
power in corrupting democratic elections.
Wherefore President Trump, by such conduct, has demonstrated that he
will remain a threat to national security and the Constitution if
allowed to remain in office, and has acted in a manner grossly
incompatible with self-governance and the rule of law. President Trump
thus warrants impeachment and trial, removal from office, and
disqualification to hold and enjoy any office of honor, trust, or
profit under the United States.
article ii: obstruction of congress
The Constitution provides that the House of Representatives ``shall
have the sole Power of Impeachment'' and that the President ``shall be
removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors''. In his conduct of the
office of President of the United States--and in violation of his
constitutional oath faithfully to execute the office of President of
the United States and, to the best of his ability, preserve, protect,
and defend the Constitution of the United States, and in violation of
his constitutional duty to take care that the laws be faithfully
executed--Donald J. Trump has directed the unprecedented, categorical,
and indiscriminate defiance of subpoenas issued by the House of
Representatives pursuant to its ``sole Power of Impeachment''.
President Trump has abused the powers of the Presidency in a manner
offensive to, and subversive of, the Constitution, in that:
The House of Representatives has engaged in an impeachment inquiry
focused on President Trump's corrupt solicitation of the Government of
Ukraine to interfere in the 2020 United States Presidential election.
As part of this impeachment inquiry, the Committees undertaking the
investigation served subpoenas seeking documents and testimony deemed
vital to the inquiry from various Executive Branch agencies and
offices, and current and former officials.
In response, without lawful cause or excuse, President Trump directed
Executive Branch agencies, offices, and officials not to comply with
those subpoenas. President Trump thus interposed the powers of the
Presidency against the lawful subpoenas of the House of
Representatives, and assumed to himself functions and judgments
necessary to the exercise of the ``sole Power of Impeachment'' vested
by the Constitution in the House of Representatives.
President Trump abused the powers of his high office through the
following means:
(1) Directing the White House to defy a lawful subpoena by
withholding the production of documents sought therein by the
Committees.
(2) Directing other Executive Branch agencies and offices to
defy lawful subpoenas and withhold the production of documents
and records from the Committees--in response to which the
Department of State, Office of Management and Budget,
Department of Energy, and Department of Defense refused to
produce a single document or record.
(3) Directing current and former Executive Branch officials
not to cooperate with the Committees--in response to which nine
Administration officials defied subpoenas for testimony, namely
John Michael ``Mick'' Mulvaney, Robert B. Blair, John A.
Eisenberg, Michael Ellis, Preston Wells Griffith, Russell T.
Vought, Michael Duffey, Brian McCormack, and T. Ulrich
Brechbuhl.
These actions were consistent with President Trump's previous efforts
to undermine United States Government investigations into foreign
interference in United States elections.
Through these actions, President Trump sought to arrogate to himself
the right to determine the propriety, scope, and nature of an
impeachment inquiry into his own conduct, as well as the unilateral
prerogative to deny any and all information to the House of
Representatives in the exercise of its ``sole Power of Impeachment''.
In the history of the Republic, no President has ever ordered the
complete defiance of an impeachment inquiry or sought to obstruct and
impede so comprehensively the ability of the House of Representatives
to investigate ``high Crimes and Misdemeanors''. This abuse of office
served to cover up the President's own repeated misconduct and to seize
and control the power of impeachment--and thus to nullify a vital
constitutional safeguard vested solely in the House of Representatives.
In all of this, President Trump has acted in a manner contrary to his
trust as President and subversive of constitutional government, to the
great prejudice of the cause of law and justice, and to the manifest
injury of the people of the United States.
Wherefore, President Trump, by such conduct, has demonstrated that he
will remain a threat to the Constitution if allowed to remain in
office, and has acted in a manner grossly incompatible with self-
governance and the rule of law. President Trump thus warrants
impeachment and trial, removal from office, and disqualification to
hold and enjoy any office of honor, trust, or profit under the United
States.
Introduction
The House Committee on the Judiciary has completed the
consideration of two articles of impeachment against President
Donald J. Trump. The first article charges that the President
used the powers of his office to solicit and pressure a foreign
government, Ukraine, to investigate his domestic political
rival and interfere in the upcoming United States Presidential
elections. The second article charges that the President
categorically obstructed the Congressional impeachment inquiry
into his conduct. Taken together, the articles charge that
President Trump has placed his personal, political interests
above our national security, our free and fair elections, and
our system of checks and balances. He has engaged in a pattern
of misconduct that will continue if left unchecked.
Accordingly, President Trump should be impeached and removed
from office.
This report proceeds in four parts.
First, it describes the process by which the Committee came
to recommend that the House impeach the President of the United
States. From start to finish, the House conducted its inquiry
with a commitment to transparency, efficiency, and fairness.
The Minority was present and able to participate at every
stage. From September to November of this year, the House
Permanent Select Committee on Intelligence, in coordination
with the Committee on Oversight and Reform and the Committee on
Foreign Affairs, collected evidence related to the charges
against President Trump. The House Permanent Select Committee
on Intelligence held public hearings to develop the evidence
and share it with the American people. The committees then
transmitted their evidence to the Judiciary Committee, together
with a nearly 300-page public report and 123 pages of Minority
views.
Consistent with House precedent, after the evidence arrived
at the Judiciary Committee, the Committee invited President
Trump and his counsel to participate in the process. Notably,
and unlike past Presidents, President Trump declined to attend
any hearings, question any witnesses, or recommend that the
Committee call additional witnesses in his defense.
Second, the report discusses the standard for impeachment
under the Constitution. The Framers were careful students of
history and knew that threats to democracy could take many
forms. Therefore, they adopted a standard for impeachment that
captured a range of misconduct: ``Treason, Bribery, or other
high Crimes and Misdemeanors.'' A clear theme unified these
constitutional wrongs: officials who abused, abandoned, or
sought personal benefit from their public trust--and who
threatened the rule of law if left in power--faced impeachment
and removal. The Framers principally intended ``other high
Crimes and Misdemeanors'' to include three forms of
Presidential wrongdoing: (1) abuse of power, (2) betrayal of
the national interest through foreign entanglements, and (3)
corruption of office and elections. Any one of these violations
of the public trust justifies impeachment. When combined in a
single course of conduct, as is the case here, they state a
powerful case for impeachment and removal from office.
Third, the report examines the facts underlying the first
charge against President Trump: abuse of power. On July 25,
2019, when he spoke by telephone to President Zelensky of
Ukraine, President Trump had the upper hand. President Zelensky
had been recently elected. Ukraine was locked in an existential
battle with Russia, which had invaded and illegally occupied
eastern Ukraine more than five years earlier. The conflict was
continuing and Ukraine needed our help--both in the form of
vital military aid, which had already been appropriated by
Congress because of our security interests in the region, and
also in the form of an Oval Office meeting, to show the world
that the United States continues to stand with our ally in
resisting the aggression of our adversary.
On that July 25 call, President Zelensky expressed
gratitude for past American defense support and indicated that
he was ready to buy more anti-tank weapons from the United
States. In response, President Trump immediately asked
President Zelensky to ``do us a favor, though.'' He asked
Ukraine to announce two bogus investigations: one into former
Vice President Joseph R. Biden, Jr., then his leading opponent
in the 2020 election, and another to advance a conspiracy
theory that Ukraine, not Russia, attacked our elections in
2016. One investigation was designed to help him gain an
advantage in the 2020 election. The other was intended to help
President Trump conceal the truth about the 2016 election.
Neither investigation was supported by the evidence or premised
on any legitimate national security or foreign policy interest.
After the call with President Zelensky, President Trump
ratcheted up the pressure. He continued to dangle the offer of
the Oval Office meeting and to withhold the $391 million in
military aid. The evidence shows that, on the same day that the
call took place, Ukrainian officials became aware that funding
had been withheld. The President also deployed his private
attorney and other agents, some acting outside the official and
regular channels of diplomacy, to make his desires known.
These facts establish impeachable abuse of power. To the
founding generation, abuse of power was a specific, well-
defined offense. It occurs when a President exercises the
powers of his office to obtain an improper personal benefit
while injuring and ignoring the national interest. The evidence
shows that President Trump leveraged his office to solicit and
pressure Ukraine for a personal favor.
This unquestionably constitutes an impeachable offense, but
the first article of impeachment also identifies two
aggravating factors. When President Trump asked President
Zelensky for a favor, he did so at the expense of both our
national security and the integrity of our elections. As to the
first, America has a vital national security interest in
countering Russian aggression, and our strategic partner
Ukraine is quite literally at the front line of resisting that
aggression. When the President weakens a partner who advances
American security interests, the President weakens America. As
to election integrity, American democracy above all rests upon
elections that are free and fair. When the President demands
that a foreign government announce investigations targeting his
domestic political rival, he corrupts our elections. To the
Founders, this kind of corruption was especially pernicious,
and plainly merited impeachment. American elections should be
for Americans only.
Fourth and finally, the report describes the second charge
against President Trump: obstruction of Congress. President
Trump did everything in his power to obstruct the House's
impeachment inquiry. Following his direction not to cooperate
with the inquiry, the White House and other agencies refused to
produce a single document in response to Congressional
subpoenas. President Trump also attempted to muzzle witnesses,
threatening to damage their careers if they agreed to testify,
and even attacked one witness during her live testimony before
Congress. To their great credit, many witnesses from across
government--including from the National Security Council, the
Department of State, and the Department of Defense--ignored the
President's unlawful orders and cooperated with the inquiry. In
the end, however, nine senior officials followed President
Trump's direction and continue to defy duly authorized
Congressional subpoenas. Other Presidents have recognized their
obligation to provide information to Congress under these
circumstances. President Trump's stonewall, by contrast, was
categorical, indiscriminate, and without precedent in American
history.
The Constitution grants the ``sole Power of Impeachment''
to the House of Representatives. Within our system of checks
and balances, the President may not decide what constitutes a
valid impeachment inquiry. Nor may he ignore lawful subpoenas
for evidence and testimony or direct others to do so. If a
President had such authority, he could block Congress from
learning facts bearing upon impeachment in the House or trial
in the Senate and could thus control a power that exists to
restrain his own abuses. The evidence shows clearly that
President Trump has assumed this power for himself and, left
unchecked, the President will continue to obstruct Congress
through unlawful means.
Although the 2020 election is less than a year away,
Congress cannot wait for the next election to address the
President's misconduct. President Trump has fallen into a
pattern of behavior: this is not the first time he has
solicited foreign interference in an election, been exposed,
and attempted to obstruct the resulting investigation. He will
almost certainly continue on this course. Indeed, in the same
week that the Committee considered these articles of
impeachment, the President's private attorney was back in
Ukraine to promote the same sham investigations into the
President's political rivals and, upon returning to the United
States, rapidly made his way to the White House. We cannot rely
on the next election as a remedy for presidential misconduct
when the President is seeking to threaten the very integrity of
that election. We must act immediately.
The Committee now transmits these articles of impeachment
to the full House. By his actions, President Trump betrayed his
office. His high crimes and misdemeanors undermine the
Constitution. His conduct continues to jeopardize our national
security and the integrity of our elections, presenting great
urgency for the House to act. His actions warrant his
impeachment and trial, his removal from office, and his
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States.
The Impeachment Inquiry
I. Introduction
The House of Representatives conducted a fair, thorough,
and transparent impeachment inquiry under extraordinary
circumstances. For the first time in modern history, committees
of the House acted as original factfinders in a Presidential
impeachment. Unlike in the previous impeachment inquiries into
Presidents Richard M. Nixon and William J. Clinton, the House
did not significantly rely on evidence obtained from other
investigative bodies. Rather, committees of the House gathered
evidence themselves. They did so fairly and efficiently,
despite President Trump's concerted efforts to obstruct their
work.
From September through November of this year, the House
Permanent Select Committee on Intelligence (HPSCI), together
with the Committees on Oversight and Reform and Foreign Affairs
(collectively, ``the Investigating Committees''), collected
evidence that President Trump abused his office in soliciting
and inducing foreign interference in the 2020 United States
Presidential election. Despite the President's efforts to
obstruct the Congressional investigation that followed, the
Investigating Committees questioned seventeen current and
former Trump Administration officials. In addition, although
Executive Branch agencies, offices, and officials continue to
defy subpoenas for documents at President Trump's direction,
the Investigating Committees obtained from certain witnesses
hundreds of text messages in their personal possession that
corroborated their testimony, as well as reproductions of
contemporaneous emails exchanged as the President's offenses
were unfolding. Minority Members and their counsel participated
equally in witness questioning, and the Investigating
Committees released public transcripts of every deposition and
interview, as well as significant documentary evidence upon
which they relied. HPSCI then transmitted that evidence to the
Judiciary Committee, together with a nearly 300-page public
report documenting the Investigating Committees' findings, and
a 123-page report containing the Minority's views.
The Judiciary Committee, consistent with House precedent,
afforded ample opportunities for President Trump and his
attorneys to participate as it considered articles of
impeachment. Those opportunities were offered not as a matter
of right, but as privileges typically afforded to Presidents
pursuant to House practice. Article I of the Constitution vests
the House with full discretion to structure impeachment
proceedings, assigning to it both the ``sole Power of
Impeachment'' and the authority to ``determine the Rules of its
Proceedings.''\1\ The purpose of such proceedings is not to
conduct a full trial of offenses; it is ``to gather evidence to
determine whether the president may have committed an
impeachable offense'' and whether he ought to stand trial for
that offense in the Senate.\2\ In accordance with that purpose
and House practice, President Trump was offered procedural
privileges that were equivalent to or exceeded those afforded
to Presidents Nixon and Clinton.
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\1\U.S. Const. art. I, Sec. 2, cl. 5; Sec. 5, cl. 2.
\2\Directing Certain Committees to Continue Their Ongoing
Investigations as Part of the Existing House of Representatives Inquiry
Into Whether Sufficient Grounds Exist for the House of Representatives
to Exercise its Constitutional Power to Impeach Donald John Trump,
President of the United States of America, and for Other Purposes, H.
Rep. No. 116-266 at 4 (2019) (hereinafter ``Rules Committee Report'');
see also Staff of H. Comm. on the Judiciary, 116th Cong.,
Constitutional Grounds for Presidential Impeachment 39 (Comm. Print
2019) (hereinafter ``Constitutional Grounds for Impeachment (2019)'').
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II. Background: Conduct of the House's Inquiry and Privileges Afforded
to President Trump
A. PROCEEDINGS LEADING TO ADOPTION OF HOUSE RESOLUTION 660
In early 2019, the Judiciary Committee began investigating
potential abuses of office by President Trump, including
obstruction of law enforcement investigations relating to
Russia's interference in the 2016 United States Presidential
election.\3\ That investigation, which came to include
consideration of whether to recommend articles of impeachment,
was conducted in full public view and through public hearings.
To the extent the Committee reviewed or obtained materials that
it did not make available to the public, it did so in order to
accommodate specific requests by the Executive Branch. The
Committee also obtained responses to written questions from one
fact witness and made those responses available to the
public;\4\ and it conducted one closed-door transcribed
interview of a fact witness during which White House attorneys
were present, then released a transcript of the interview the
following day.\5\ During this period, HPSCI also continued to
investigate foreign intelligence and counterintelligence risks
arising from efforts by Russia and other foreign powers to
influence the United States political process during and since
the 2016 election.\6\
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\3\See, e.g., Resolution Recommending that the House of
Representatives Find William P. Barr, Attorney General, U.S. Department
of Justice, in Contempt of Congress for Refusal to Comply with a
Subpoena Duly Issued by the Committee on the Judiciary, H. Rep. No.
116-105, at 13 (June 6, 2019).
\4\See Responses by Ann Donaldson to Questions from the Committee
on the Judiciary of the U.S. House of Representatives (July 5, 2019).
\5\See Interview of Hope Hicks Before the H. Comm. on the
Judiciary, 116th Cong. (June 19, 2019).
\6\See App. of the Comm. on the Judiciary at 14 n.8, In re App. of
the Comm. on the Judiciary, U.S. House of Reps., for an Order
Authorizing the Release of Certain Grand Jury Materials,--F. Supp. 3d--
, 2019 WL 5485221 (D.D.C. Oct. 25, 2019) (hereinafter ``In re Rule 6(e)
Application''), appeal pending, No. 19-5288 (D.C. Cir.). In addition,
in August 2019, Chairman Nadler requested that the chairs of five other
committees investigating potential misconduct by President Trump share
any materials with the Judiciary Committee that would be relevant to
its consideration of impeachment. Letter from Jerrold Nadler, Chairman,
H. Comm. on the Judiciary, to Adam Schiff, Chairman, H. Perm. Select
Comm. on Intelligence, Maxine Waters, Chairwoman, H. Comm. on Financial
Services, Elijah E. Cummings, Chairman, H. Comm. on Oversight and
Reform, and Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs (Aug.
22, 2019).
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Beginning in the spring and summer of 2019, evidence came
to light that President Trump and his associates might have
been seeking the assistance of another foreign government,
Ukraine, to influence the upcoming 2020 election.\7\ On
September 9, 2019, the Investigating Committees announced they
were launching a joint investigation and requested documents
and records from the White House and the Department of State.
In parallel, evidence emerged that the President may have
attempted to cover up his actions and prevent the transmission
of information to which HPSCI was entitled by law.\8\ Given the
gravity of these allegations and the immediacy of the threat to
the next Presidential election, Speaker Nancy P. Pelosi
announced on September 24, 2019 that the House would proceed
with ``an official impeachment inquiry,'' under which the
Investigating Committees, the Judiciary Committee, and the
Committees on Financial Services and Ways and Means would
continue their investigations of Presidential misconduct.\9\
---------------------------------------------------------------------------
\7\See Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push
for Inquiries That Could Help Trump, N.Y. Times, May 9, 2019.
\8\See, e.g., Letter from Adam B. Schiff, Chairman, H. Perm. Select
Comm. on Intelligence, to Joseph Maguire, Acting Dir. of Nat'l
Intelligence (Sept. 10, 2019).
\9\Press Release, Pelosi Remarks Announcing Impeachment Inquiry
(Sept. 24, 2019).
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Following that announcement, the Investigating Committees
issued additional requests and subpoenas for witness interviews
and depositions and for documents in the possession of the
Executive Branch.\10\ The three committees ``made clear that
this information would be `collected as part of the House's
impeachment inquiry and shared among the Committees, as well as
with the Committee on the Judiciary as appropriate.'''\11\
However, as detailed further in the portion of this Report
discussing obstruction of Congress, White House Counsel Pat A.
Cipollone sent a letter on October 8, 2019 to Speaker Pelosi
and Chairmen Adam B. Schiff, Eliot L. Engel, and Elijah E.
Cummings stating that ``President Trump and his Administration
cannot participate in your partisan and unconstitutional
inquiry.''\12\ As a result, the Administration refused--and
continues to refuse--to produce any documents subpoenaed by the
Investigating Committees as part of the impeachment inquiry,
and nine current or former Administration officials remain in
defiance of subpoenas for their testimony.\13\
---------------------------------------------------------------------------
\10\See The Trump-Ukraine Impeachment Inquiry Report: Report for
the H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in
Consultation with the H. Comm. on Oversight and Reform and the H. Comm.
on Foreign Affairs at 208, 116th Cong. (2019) (hereinafter ``Ukraine
Report'').
\11\Id. (quoting Letter from Chairman Elijah E. Cummings, Chairman,
H. Comm. on Oversight and Reform, Adam B. Schiff, Chairman, H. Perm.
Select Comm. on Intelligence, and Eliot L. Engel, H. Comm. on Foreign
Affairs, to Mick Mulvaney, Acting Chief of Staff, The White House (Oct.
4, 2019)).
\12\Letter from Pat A. Cipollone, Counsel to the President, to
Nancy Pelosi, Speaker of the House, Adam B. Schiff, Chairman, H. Perm.
Select Comm. on Intelligence, Eliot L. Engel, Chairman, H. Comm. on
Foreign Affairs, and Elijah E. Cummings, Chairman, H. Comm. on
Oversight and Reform (Oct. 8, 2019) (hereinafter ``Oct. 8 Cipollone
Letter'').
\13\Ukraine Report at 30-31. Ten witnesses defied subpoenas for
testimony, but the Investigating Committees subsequently withdrew their
subpoena to one of the officials. Id. at 236.
---------------------------------------------------------------------------
Nevertheless, many other current and former officials
complied with their legal obligations to appear for testimony,
and the Investigating Committees conducted depositions or
transcribed interviews of seventeen witnesses.\14\ These
depositions and interviews were conducted consistent with the
Rules of the House and with longstanding procedures governing
investigations by HPSCI and the other committees.\15\ Members
of the Minority previously advocated expanding these
authorities, explaining that ``[t]he ability to interview
witnesses in private allows committees to gather information
confidentially and in more depth than is possible under the
five-minute rule governing committee hearings. This ability is
often critical to conducting an effective and thorough
investigation.''\16\
---------------------------------------------------------------------------
\14\Depositions of four of the witnesses postdated the House's
approval of H. Res. 660 on October 31.
\15\Rules governing the use of deposition authorities were issued
at the beginning of the current Congress, just as they have been during
previous Congresses. See H. Res. 6 Sec. 103(a), 116th Cong. (2019)
(providing authority for chairs of standing committees and chair of
HPSCI to order the taking of depositions); Regulations for Use of
Deposition Authority, 165 Cong. Rec. H1216-17 (daily ed. Jan. 25, 2019)
(setting forth regulations pursuant to this provision).
\16\Final Report of the H. Select Comm. on the Events Surrounding
the 2012 Terrorist Attack in Benghazi, H. Rep. No. 114-848 at 404-05
(2016) (footnote omitted).
---------------------------------------------------------------------------
All Members of the Investigating Committees were permitted
to attend these depositions and interviews, along with Majority
and Minority staff. Members and counsel for both the Majority
and Minority were permitted equal time for questioning
witnesses. Transcripts of all depositions and interviews were
publicly released and made available through HPSCI's website on
a rolling basis, subject to minimal redactions to protect
classified or sensitive information.
B. HOUSE RESOLUTION 660 AND SUBSEQUENT PROCEEDINGS
On October 31, 2019, the House voted to approve H. Res.
660, which directed the Judiciary Committee as well as HPSCI
and the Committees on Oversight and Reform, Foreign Affairs,
Financial Services, and Ways and Means to ``continue their
ongoing investigations as part of the existing . . . inquiry
into whether sufficient grounds exist for the House of
Representatives to exercise its Constitutional power to impeach
Donald John Trump.''\17\ As the accompanying report by the
Committee on Rules explained, HPSCI, in coordination with the
Committees on Oversight and Reform and Foreign Affairs, was
conducting an investigation that focused on three interrelated
questions:
---------------------------------------------------------------------------
\17\H. Res. 660, 116th Cong. (2019).
1. Did the President request that a foreign leader
and government initiate investigations to benefit the
President's personal political interests in the United
States, including an investigation related to the
President's political rival and potential opponent in
the 2020 U.S. presidential election?
2. Did the President--directly or through agents--
seek to use the power of the Office of the President
and other instruments of the federal government in
other ways to apply pressure on the head of state and
government of Ukraine to advance the President's
personal political interests, including by leveraging
an Oval Office meeting desired by the President of
Ukraine or by withholding U.S. military assistance to
Ukraine?
3. Did the President and his Administration seek to
obstruct, suppress or cover up information to conceal
from the Congress and the American people evidence
about the President's actions and conduct?\18\
---------------------------------------------------------------------------
\18\Rules Committee Report at 2.
The report explained that although a full House vote was by
no means legally necessary, H. Res. 660 ``provides a further
framework for the House's ongoing impeachment inquiry.''\19\
That framework would be ``commensurate with the inquiry process
followed in the cases of President Nixon and President
Clinton''--during which the House undertook various
investigatory steps before voting to authorize and structure
proceedings for an impeachment inquiry.\20\
---------------------------------------------------------------------------
\19\Id. at 7.
\20\Id.
---------------------------------------------------------------------------
One significant difference, however, was that in this
instance the House was conducting and would continue to conduct
its own factfinding and collection of evidence through its
investigative committees. As HPSCI has explained, ``[u]nlike in
the cases of Presidents Nixon and Clinton, the House conducted
a significant portion of the factual investigation itself
because no independent prosecutor was appointed to investigate
President Trump's conduct.''\21\ Nevertheless, H. Res. 660 set
forth detailed procedures that resulted in maximal transparency
during the ongoing factfinding stage of the investigation and
provided numerous privileges for President Trump and his
counsel. The procedures entailed two stages for the public-
facing phase of the impeachment inquiry: the first before HPSCI
and the second before the Judiciary Committee.
---------------------------------------------------------------------------
\21\Ukraine Report at 212-13.
---------------------------------------------------------------------------
First, HPSCI was authorized to conduct open hearings during
which the Chairman and Ranking Member had extended equal time
to question witnesses or permit their counsels to do so.\22\
The Ranking Member was also permitted to identify and request
witnesses and to issue subpoenas for documents and witness
testimony with the concurrence of the Chairman, with the option
to refer subpoena requests for a vote before the full Committee
if the Chairman declined to concur.\23\ H. Res. 660 further
directed HPSCI to issue a report describing its findings and to
make that report available to the public, and to transmit that
report along with any supplemental materials and Minority views
to the Judiciary Committee.\24\
---------------------------------------------------------------------------
\22\H. Res. 660 Sec. 2(2).
\23\Id. Sec. 2(4). In addition, the House's standing rules entitle
committees of the House to issue subpoenas and to delegate subpoena
authority to Committee chairs. See House Rule XI.2(m).
\24\H. Res. 660 Sec. 2(6).
---------------------------------------------------------------------------
Pursuant to H. Res. 660, HPSCI held five days of public
hearings during which twelve current or former Trump
Administration officials testified. These witnesses spoke in
extensive detail about President Trump's repeated and prolonged
efforts to pressure Ukraine into announcing and conducting
baseless investigations into the President's political rival
and into a discredited conspiracy theory that Ukraine, not
Russia, interfered in the 2016 election. They also testified
regarding United States policy interests regarding Ukraine, the
value and strategic importance of the military and security
assistance and the diplomatic visit to the White House that the
President withheld from Ukraine, and the actions taken by
individuals on the President's behalf in aid of his misconduct.
In addition, the Investigating Committees received from certain
witnesses hundreds of text messages as well as contemporaneous
emails corroborating their testimony. The majority of witnesses
maintained, however, that because they were government
employees their documents and communications remained the
property of Executive Branch offices and agencies. These
offices and agencies, based on the President's direction,
instructed officials not to provide any materials pursuant to
the Investigating Committees' subpoenas.
Three of the witnesses who testified during the public
hearings--Ambassador Kurt D. Volker, Undersecretary of State
David M. Hale, and former National Security Council official
Timothy A. Morrison--did so at the request of the Minority. As
Chairman Schiff explained, however, the impeachment inquiry
would not be permitted to serve as a means for conducting ``the
same sham investigations . . . that President Trump pressed
Ukraine to conduct for his personal political benefit.''\25\
Chairman Schiff likewise made clear that he would not
``facilitate efforts by President Trump and his allies in
Congress to threaten, intimidate, and retaliate against the
whistleblower who courageously raised the initial alarm.''\26\
---------------------------------------------------------------------------
\25\Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, to Devin Nunes, Ranking Member, H. Perm. Select Comm. on
Intelligence (Nov. 9, 2019).
\26\Id.
---------------------------------------------------------------------------
HPSCI's public hearings concluded on November 21, 2019. On
December 3, 2019, in consultation with the Committees on
Oversight and Reform and Foreign Affairs, HPSCI released and
voted to adopt a report of nearly 300 pages detailing its
extensive findings about the President's abuse of his office
and obstruction of Congress. Chairman Schiff noted that
although the investigation would continue, ``[t]he evidence of
the President's misconduct is overwhelming,'' and the need to
submit an impeachment referral was too urgent to delay.\27\ On
December 6, 2019, and pursuant to H. Res. 660, the
Investigating Committees transmitted a final version of that
report, together with a report documenting the Minority's views
and evidence upon which the report relied, to the Judiciary
Committee.\28\ The Committees on the Budget and Foreign Affairs
transmitted certain materials to the Judiciary Committee as
well.\29\ In addition, HPSCI subsequently made a classified
supplemental submission provided by one of its witnesses
available for Judiciary Committee Members to review in a secure
facility.\30\
---------------------------------------------------------------------------
\27\Ukraine Report at 9 (preface from Chairman Schiff).
\28\Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, Carolyn B. Maloney, Chairwoman, H. Comm. on Oversight and
Reform, and Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs, to
Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019); see
H. Res. 660 Sec. Sec. 2(6), 3.
\29\Letter from John Yarmuth, Chairman, H. Comm. on the Budget, to
Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019);
Letter from Eliot L. Engel, Chairman, H. Comm. on Foreign Affairs, to
Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019).
\30\See Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm.
on Intelligence, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary
(Dec. 11, 2019).
---------------------------------------------------------------------------
With respect to proceedings before the Judiciary Committee,
pursuant to H. Res. 660, the Rules Committee established
``Impeachment Inquiry Procedures in the Committee on the
Judiciary'' that provided a host of procedural privileges for
President Trump.\31\ Those procedures required that President
Trump's counsel be furnished with copies of all materials
transferred to the Judiciary Committee by HPSCI and the other
committees investigating the President's misconduct.\32\ They
afforded President Trump numerous opportunities to participate
in the Judiciary Committee's proceedings through counsel. Those
opportunities included the ability to present evidence orally
or in writing; to question committee counsels presenting
evidence; to attend all hearings of the Judiciary Committee,
including those held in executive session; to raise objections
during examinations of witnesses; to cross-examine any witness
called before the Committee; and to request that additional
witnesses be called.\33\ In addition, as was the case for
HPSCI, H. Res. 660 permitted the Ranking Member of the
Judiciary Committee to issue subpoenas for documents and
witness testimony with the concurrence of the Chairman, or to
refer any such decision for a vote by the full Committee.\34\
---------------------------------------------------------------------------
\31\Impeachment Inquiry Procedures in the Committee on the
Judiciary, submitted for printing in the Congressional Record, 165
Cong. Rec. E1357 (daily ed. October 29, 2019) (hereinafter
``Impeachment Inquiry Procedures'').
\32\Accordingly, after receiving these materials from the
Investigating Committees, the Judiciary Committee transmitted them to
the President on December 8, 2019, with limited exceptions for
materials containing sensitive information. The Committee has made the
materials containing sensitive information available for the
President's counsel's review in a secure facility. See Letter from
Jerrold Nadler, Chairman, H. Comm. on the Judiciary, to Pat A.
Cipollone, Counsel to the President (Dec. 8, 2019).
\33\Impeachment Inquiry Procedures at (A)(3), (B)(2)-(3), (C)(1)-
(2), (4).
\34\H. Res. 660 Sec. 4(c)(2).
---------------------------------------------------------------------------
On November 26, 2019, Chairman Nadler wrote to President
Trump informing him of these procedures and the Committee's
intention to hold a hearing the following week, on December 4,
regarding constitutional grounds for impeachment. Chairman
Nadler explained the purpose of the hearing and requested that
President Trump indicate whether he and his counsel wished to
participate and question the witness panel.\35\ On November 29,
2019, Chairman Nadler wrote to President Trump further
requesting that his counsel indicate whether he planned to
participate in any of the Committee's upcoming proceedings and,
if so, which privileges his counsel would seek to exercise.\36\
On December 1, 2019, Mr. Cipollone responded that counsel for
the President would not participate in the December 4 hearing,
characterizing that process as ``an after-the-fact
constitutional law seminar.''\37\ On December 6, 2019, Mr.
Cipollone sent Chairman Nadler another letter indicating the
President would not avail himself of any other opportunities to
participate in the Committee's proceedings, urging the
Committee to ``end this inquiry now and not waste even more
time with additional hearings.''\38\ Mr. Cipollone quoted
President Trump's recent statement that ``if you are going to
impeach me, do it now, fast, so we can have a fair trial in the
Senate.''\39\
---------------------------------------------------------------------------
\35\Letter from Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, to Donald J. Trump, President of the United States (Nov. 26,
2019).
\36\Letter from Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, to Donald J. Trump, President of the United States (Nov. 29,
2019).
\37\Letter from Pat A. Cipollone, Counsel to the President, to
Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 1, 2019).
\38\Letter from Pat A. Cipollone, Counsel to the President, to
Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec. 6, 2019).
\39\Id.
---------------------------------------------------------------------------
On December 4, 2019, the Judiciary Committee held its
public hearing on Constitutional Grounds for Presidential
Impeachment and heard testimony from four constitutional
experts, including one called by the Minority.\40\ Consistent
with the Judiciary Committee's proceedings during the
impeachment of President Clinton, these experts discussed the
kinds of conduct that amounts to ``high Crimes and
Misdemeanors''' under the Constitution and whether the
President's conduct met that standard.\41\ The Chairman and
Ranking Member were allotted equal periods of extended time for
questioning, along with Majority and Minority counsel. On
December 7, 2019, the Committee Majority staff released its
report on this topic, outlining the grounds for impeachment as
contemplated by the Founders and addressing certain arguments
raised by the President.\42\ The Minority staff published its
own views as well, including the written testimony of its
witness during the December 4 hearing.\43\
---------------------------------------------------------------------------
\40\The Impeachment Inquiry Into President Donald J. Trump:
Constitutional Grounds for Presidential Impeachment Before the H. Comm.
on the Judiciary, 116th Cong. (Dec. 4, 2019) (hereafter
``Constitutional Grounds Hearing (2019)''). This ratio of one Minority
witness for every three Majority witnesses is consistent with other
hearings conducted in the Judiciary Committee and in other committees.
\41\Cf. Background and History of Impeachment: Hearing Before the
Subcomm. on the Constitution, H. Comm. on the Judiciary, 105th Cong.
(1998).
\42\See Constitutional Grounds for Impeachment (2019).
\43\See id. at 53 (Minority Views).
---------------------------------------------------------------------------
On December 9, 2019, in accordance with the ``Impeachment
Inquiry Procedures''' promulgated pursuant to H. Res. 660, the
Judiciary Committee conducted another public hearing to
evaluate the evidence gathered by HPSCI.\44\ Majority and
Minority counsel for the Judiciary Committee presented opening
statements, followed by presentations of the evidence from
Majority and Minority counsel for HPSCI. The Chairman and
Ranking Member were again allotted equal periods of extended
time for questioning, with the ability to yield time for
questioning by Majority and Minority counsels. The Majority
counsel for HPSCI presented HPSCI's findings in detail and was
subject to extensive questioning throughout the hearing's nine-
hour duration. Minority counsel for HPSCI presented the
Minority's views and was subject to questioning as well.
---------------------------------------------------------------------------
\44\The Impeachment Inquiry Into President Donald J. Trump:
Presentations from H. Perm. Select Comm. on Intelligence and H. Comm.
on the Judiciary, 116th Cong. (Dec. 9, 2019) (hereinafter
``Presentation of Evidence Hearing (2019)'').
---------------------------------------------------------------------------
On December 10, 2019, Chairman Nadler introduced a
resolution containing two articles of impeachment against
President Trump for abuse of office and obstruction of
Congress.\45\ The Committee began debate the following evening
and resumed debate throughout the day of December 12. On
December 13, 2019, the Committee voted to report both articles
of impeachment favorably to the House.
---------------------------------------------------------------------------
\45\H. Res. 755, 116th Cong. (2019).
---------------------------------------------------------------------------
III. The House's Inquiry Was Fully Authorized by House Rules and
Precedent
The House's conduct of its impeachment inquiry--through
which Committees of the House began investigating facts prior
to a formal vote by the House--was fully consistent with the
Constitution, the Rules of the House, and House precedent. The
House's autonomy to structure its own proceedings for an
impeachment inquiry is rooted in two provisions of Article I of
the Constitution. First, Article I vests the House with the
``sole Power of Impeachment.''\46\ It contains no other
requirements as to how the House must carry out that
responsibility. Second, Article I further states that the House
is empowered to ``determine the Rules of its Proceedings.''\47\
Taken together, these provisions give the House sole discretion
to determine the manner in which it will investigate,
deliberate, and vote upon grounds for impeachment.
---------------------------------------------------------------------------
\46\U.S. Const. art I, Sec. 2, cl. 5.
\47\U.S. Const. art. I, Sec. 5, cl. 2.
---------------------------------------------------------------------------
The Rules of the House do not prescribe any particular
manner in which the House or any of its committees must conduct
impeachment inquiries. Although the Judiciary Committee has
traditionally been ``responsible for considering and
potentially recommending articles of impeachment to the full
House,''\48\ it is not the exclusive factfinding body through
which all evidence bearing on impeachment must be collected. To
the contrary, as discussed further below, in the last two
modern Presidential impeachments the Judiciary Committee relied
on evidence obtained through prosecutors, grand juries, and (in
the case of President Nixon) a committee of the Senate. In
addition, the House Rules provide HPSCI and the standing
committees with robust investigative authorities, including the
power to issue subpoenas and take depositions.\49\ Each of the
three committees indisputably has oversight jurisdiction to
investigate these matters.\50\
---------------------------------------------------------------------------
\48\Rules Committee Report at 7.
\49\House Rule XI.2(m); H. Res. 6 Sec. 102(a).
\50\See House Rule X.1(i)(1), (10) (Committee on Foreign Affairs
has jurisdiction regarding ``[r]elations of the United States with
foreign nations generally'' and ``[d]iplomatic service''); House Rule
X.3(i), X.4(c)(2) (Committee on Oversight and Reform ``shall review and
study on a continuing basis the operation of Government activities at
all levels, including the Executive Office of the President,'' and
``may at any time conduct investigations of any matter'' before other
committees of the House); House Rule X.11(b)(1)(B) (HPSCI has
jurisdiction regarding ``[i]ntelligence and intelligence-related
activities'' of all ``departments and agencies of the government'').
---------------------------------------------------------------------------
Throughout 2019, HPSCI continued to investigate Russia's
interference in the 2016 election as well as ongoing efforts by
Russia and other adversaries to interfere in upcoming
elections. As allegations emerged that President Trump and his
personal attorney, Rudolph Giuliani, were acting to solicit and
pressure Ukraine to launch politically motivated
investigations, the Investigating Committees announced publicly
on September 9, 2019, that they were conducting a joint
investigation of the President's conduct toward Ukraine.\51\
---------------------------------------------------------------------------
\51\Press Release, Three House Committees Launch Wide-Ranging
Investigations into Trump-Giuliani Ukraine Scheme (Sept. 9, 2019).
---------------------------------------------------------------------------
The principal objection by the President has consisted of a
claim that no committee of the House was permitted to
investigate Presidential misconduct for impeachment purposes
unless or until the House enacted a resolution fully
``authorizing'' the impeachment inquiry.\52\ That claim has no
basis in the Constitution, any statutes, the House Rules, or
House precedent. As already noted, the Constitution says
nothing whatsoever about any processes or prerequisites
governing the House's exercise of its ``sole Power of
Impeachment.'' To the contrary, the Constitution's Impeachment
and Rulemaking Clauses indicate that it is only for the House
itself to structure its impeachment investigations and
proceedings. Yet the House Rules do not preclude committees
from inquiring into potential grounds for impeachment. As a
federal district court recently confirmed, the notion that a
full House vote is required to authorize an impeachment inquiry
``has no textual support in the U.S. Constitution [or] the
governing rules of the House.''\53\
---------------------------------------------------------------------------
\52\See Oct. 8 Cipollone Letter.
\53\In re Rule 6(e) Application, 2019 WL 5485221, at *26.
---------------------------------------------------------------------------
Furthermore, House precedent makes manifestly clear that
the House need not adopt a resolution authorizing or
structuring an impeachment inquiry before such an inquiry can
proceed. As Jefferson's Manual notes, ``[i]n the House various
events have been credited with setting an impeachment in
motion,'' including charges made on the floor, resolutions
introduced by members, or ``facts developed and reported by an
investigating committee of the House.''\54\ As Chief Judge
Howell explained, the House has ``[i]ndisputably initiated
impeachment inquiries of federal judges without a House
resolution `authorizing' the inquiry.''\55\ One such inquiry
involved a lengthy investigation of a sitting Supreme Court
Justice.\56\ Indeed, several ``federal judges have been
impeached by the House without a House resolution `authorizing'
an inquiry.''\57\ For example, the Judiciary Committee
investigated grounds for the impeachment of Judge Walter Nixon
following a referral by the United States Judicial Conference
and the introduction of a resolution for his impeachment.\58\
The Committee--without any direct authorization or instruction
from the full House--subsequently adopted articles of
impeachment, which were approved by a vote of the full House.
The Senate later voted to convict Judge Nixon and remove him
from office.\59\ Similar proceedings occurred in impeachments
of two other judges.\60\ Indeed, as recently as the 114th
Congress, the Judiciary Committee considered impeachment of the
Commissioner of the Internal Revenue Service following a
referral from another committee and absent a full vote of the
House for an impeachment inquiry.\61\
---------------------------------------------------------------------------
\54\Constitution, Jefferson's Manual, Rules of the House of
Representatives of the United States, H. Doc. No. 115-177 Sec. 603
(2019 ed.) (hereinafter ``Jefferson's Manual'').
\55\In re Rule 6(e) Application, 2019 WL 5485221 at *26 (providing
four examples).
\56\Id. (citing 3 Deschler's Precedents of the United States House
of Representatives ch. 14 Sec. 5 (1994) (hereinafter ``Deschler'').
\57\In re Rule 6(e) Application, 2019 WL 5485221 at *26 (emphasis
in original).
\58\Report of the Committee on the Judiciary, Impeachment of Walter
L. Nixon, Jr., H. Rep. No. 101-36, at 13-16 (1989).
\59\See Nixon v. United States, 506 U.S. 224, 227-28 (1993).
\60\See In re Rule 6(e) Application, 2019 WL 5485221 at *26.
\61\See Examining the Allegations of Misconduct Against IRS
Commissioner John Koskinen (Part I): Hearing Before the H. Comm. on the
Judiciary, 114th Cong. 3 (2016) (statement by Rep. Darrell Issa
describing the hearing as ``an inquiry into the recommendation of
impeachment'' made by another committee).
---------------------------------------------------------------------------
In addition, in many prior instances in which the full
House adopted resolutions authorizing and directing the
Judiciary Committee to undertake impeachment inquiries, the
resolutions served in part to provide the Committee with
authorities it did not already have. For example, the 1974
resolution authorizing and directing the impeachment inquiry
into President Nixon served to clarify the scope of the
Committee's subpoena authority and authorized the Committee and
its counsel to take depositions.\62\ Today, the House Rules for
standing committees and for HPSCI already provide these
authorities.\63\ Thus, as a practical matter, a full vote of
the House is no longer needed to provide investigating
committees with the kinds of authorities needed to conduct
their investigations. Here, of course, the House did ultimately
adopt H. Res. 660, which explicitly directed HPSCI and the
Committees on the Judiciary, Oversight and Reform, Foreign
Affairs, Financial Services, and Ways and Means to ``continue
their ongoing investigations''' as part of the House's
``existing'' impeachment inquiry. Although the House was not
obligated to enact such a resolution, H. Res. 660 affirmed the
authority of the House and these committees to continue their
investigations and provided further structure to govern the
inquiry moving forward.
---------------------------------------------------------------------------
\62\H. Res. 803 Sec. 2(a)(1); see 3 Deschler ch. 14 Sec. 6.2.
\63\See H. Res 6, 116th Cong. Sec. 103(a), (2019); Jefferson's
Manual Sec. 805 (describing gradual expansion of these authorities).
---------------------------------------------------------------------------
This sequence of events in the House's impeachment inquiry
into President Trump bears substantial resemblance to the
development of the House's impeachment inquiry into President
Nixon. The Judiciary Committee's consideration of impeachment
resolutions against President Nixon began in October 1973, when
various resolutions calling for President Nixon's impeachment
were introduced in the House and referred to the Judiciary
Committee.\64\ Over the next several months, the Committee
investigated the Watergate break-in and coverup (among other
matters) using its existing investigatory authorities.\65\ The
Committee also hired a special counsel and other attorneys to
assist in these efforts, and the House adopted a resolution in
November 1973 to fund the Committee's investigations.\66\ As
the Committee explained in a February 1974 staff report, its
work up through that time included forming multiple task forces
within the staff to gather evidence organized around various
subjects of interest.\67\ All of this occurred before the House
approved a resolution directing the Judiciary Committee to
investigate whether sufficient grounds existed to impeach
President Nixon.\68\
---------------------------------------------------------------------------
\64\3 Deschler ch. 14 Sec. 15.1.
\65\See id. ch. 14 Sec. 15.2 (Parliamentarian's Note); Report of
the H. Comm. on the Judiciary, Impeachment of Richard M. Nixon,
President of the United States, H. Rep. No. 93-1305 at 6 (1974)
(hereinafter ``Committee Report on Nixon Articles of Impeachment
(1974)'').
\66\Committee Report on Nixon Articles of Impeachment (1974) at 6.
\67\Work of the Impeachment Inquiry Staff As of February 5, 1974:
Report by the Staff of the H. Comm. on the Judiciary at 2-3, 93d Cong.
(1974) (hereinafter ``February 5, 1974 Progress Report'').
\68\H. Res. 803 Sec. 1, 93d Cong. (1974).
---------------------------------------------------------------------------
So too here, committees of the House began investigating
allegations of misconduct by President Trump before the House
voted to approve H. Res. 660. That course of events is
consistent not only with the House's impeachment inquiry
against President Nixon but with common sense. After all,
before voting to conduct an impeachment inquiry, the House must
have some means of ascertaining the nature and seriousness of
the allegations and the scope of the inquiry that may follow.
It defies logic to suggest that House committees have no
authority to begin examining the President's potentially
impeachable misconduct unless or until the full House votes to
conduct an impeachment inquiry.
IV. President Trump Received Ample Procedural Protections
A. GENERAL PRINCIPLES
As Chairman Rodino observed during this Committee's
impeachment proceedings against President Nixon, ``it is not a
right but a privilege or a courtesy'' for the President to
participate through counsel in House impeachment
proceedings.\69\ An impeachment inquiry is not a trial; rather,
it entails a collection and evaluation of facts before a trial
occurs in the Senate. In that respect, the House acts
analogously to a grand jury or prosecutor, investigating and
considering the evidence to determine whether charges are
warranted. Federal grand juries and prosecutors, of course,
conduct their investigations in secret and afford little or no
procedural rights to targets of investigations.\70\ This type
of confidentiality is necessary to (among other things) ensure
freedom in deliberations, ``prevent subornation of perjury or
tampering with the witnesses who may testify,'' and ``encourage
free and untrammeled disclosures by persons who have [relevant]
information.''\71\
---------------------------------------------------------------------------
\69\Impeachment Inquiry: Hearings Before the H. Comm. on the
Judiciary, 93d Cong. 497 (1974) (hereinafter ``Nixon Impeachment
Hearings'').
\70\See Fed. R. Crim. P. 6(e).
\71\United States v. Procter & Gamble Co., 356 U.S. 677, 681 n.6
(1958).
---------------------------------------------------------------------------
Nonetheless, in light of the gravity of the decision to
impeach the President and the ramifications that such a
decision has for the Nation as a whole, the House has typically
provided a level of transparency in impeachment inquiries and
has afforded the President certain procedural privileges.
Although President Trump has at times invoked the notion of
``due process,'' ``an impeachment inquiry is not a criminal
trial and should not be confused with one.''\72\ Rather, the
task of the House--as part of the responsible exercise of its
``sole Power of Impeachment''--is to adopt procedures that
balance the need to protect the integrity of its
investigations, the public interest in a full and fair inquiry,
and the President's interest in telling his side of the story.
---------------------------------------------------------------------------
\72\Rules Committee Report at 8.
---------------------------------------------------------------------------
As discussed below, in past impeachment inquiries this has
typically meant that the principal evidence relied upon by the
Judiciary Committee is disclosed to the President and to the
public--though some evidence in past proceedings has remained
confidential. The President has also typically been afforded an
opportunity to participate in the proceedings at a stage when
evidence has been fully gathered and is presented to the
Judiciary Committee. In addition, the President has been
entitled to present his own evidence and to request that
witnesses be called. He has not, however, been entitled to have
counsel present during all interviews of witnesses. The
procedures employed by the House here were tailored to these
considerations and provided ample protections for President
Trump.
B. PROCESSES USED IN MODERN PRESIDENTIAL IMPEACHMENTS
The processes used in the House's impeachment inquiries
into Presidents Nixon and Clinton shared certain common
features that informed the House's consideration of how to
structure its proceedings with respect to President Trump. In
both the Nixon and Clinton impeachments, the House relied
substantially on factual evidence collected through prior
investigations. These prior investigations did not afford the
President any particular procedural rights, such as the
opportunity to cross-examine witnesses, and many portions were
conducted outside public view. At a later stage, when evidence
was formally presented to the Judiciary Committee, the
President's counsel was permitted to attend, present evidence
and call witnesses, and cross-examine witnesses before the
Committee.
1. President Nixon
Impeachment proceedings in the House against President
Nixon were conducted almost entirely behind closed doors, with
the President's counsel afforded certain procedural privileges
in later stages of the inquiry. As noted above, the Judiciary
Committee began considering impeachment resolutions against
President Nixon in October 1973, including by examining
evidence in the public domain obtained from other
investigations.\73\ On February 6, 1974, the House adopted H.
Res. 803, which authorized and directed the Committee to
investigate ``whether sufficient grounds exist for the House of
Representatives to exercise its constitutional power to impeach
Richard M. Nixon.''\74\ H. Res. 803 gave the Committee
authority to subpoena documents and witnesses, to take
depositions, and to issue interrogatories. This authority could
be exercised by the Chairman or the Ranking Member, with each
having the right to refer disagreements to the full
Committee.\75\ The Committee subsequently adopted procedures
imposing tight restrictions on access to materials gathered
during the course of its investigation, restricting access to
the Chairman, the Ranking Member, and authorized staff.\76\ In
February and March 1974, the Committee met three times in
closed executive sessions--without President Nixon's counsel in
attendance--to hear updates from Committee staff.\77\ In
addition to reviewing information produced in other
investigations, Committee staff conducted private interviews of
fact witnesses.\78\
---------------------------------------------------------------------------
\73\February 5, 1974 Progress Report at 2.
\74\H. Res. 803 Sec. 1, 93d Cong. (1974).
\75\Id. Sec. 2(b)(1).
\76\Procedures for Handling Impeachment Inquiry Material: H. Comm.
on the Judiciary, 93d Cong. (Comm. Print 1974); see Committee Report on
Nixon Articles of Impeachment (1974) at 8.
\77\Nixon Impeachment Hearings at 53-78 (Feb. 5, 1974 briefing by
staff); id. at 79-100 (Feb. 14, 1974 briefing by staff); id. at 131-59
(Mar. 5, 1974 briefing by staff).
\78\See id. at 96, 105, 206.
---------------------------------------------------------------------------
Much of the evidence relied upon by the Committee and
gathered by staff was obtained through other investigations,
including the investigation by the Senate Select Committee on
Presidential Campaign Activities. Indeed, the Senate Select
Committee's televised hearings are what typically come to mind
when one thinks of Congress's investigation of Watergate. The
Senate, of course, does not conduct impeachment inquiries; its
constitutional function is ``to try all Impeachments'' if an
officer of the United States is impeached by the House.\79\ The
Senate Select Committee was instead established pursuant to the
Senate's general oversight and legislative authorities.\80\ In
the spring of 1973--before those televised hearings occurred--
Select Committee staff interviewed hundreds of witnesses in
informal private settings or closed-door executive sessions of
the Committee.\81\ The Select Committee also met in numerous
executive sessions to receive progress updates from staff.\82\
Only later, beginning in May 1973 and lasting through the
summer, did the Select Committee call witnesses to testify in
public hearings.\83\ Those hearings were not impeachment
proceedings, President Nixon was not afforded any procedural
privileges, such as the right to have counsel present and to
question witnesses.
---------------------------------------------------------------------------
\79\U.S. Const. art. I, Sec. 3, cl. 6.
\80\See Final Report of the S. Select Comm. on Presidential
Campaign Activities, S. Rep. No. 93-981, xxiii-xxiv (1974) (hereinafter
``Senate Select Committee Report'').
\81\Id. at xxx.
\82\Id. at xviii.
\83\Id. at xxix.
---------------------------------------------------------------------------
On February 7, 1974--the day after the House adopted its
resolution directing an impeachment inquiry--the Senate Select
Committee voted to transmit all of its files, including
voluminous non-public files, to the House Judiciary
Committee.\84\ The Judiciary Committee relied on those non-
public materials as it gathered evidence. For example, a March
1, 1974 progress report by Judiciary Committee staff noted that
its ``basic sources'' included ``the closed files of the
[Senate Select Committee], including executive session
testimony.''\85\ In March 1974, the Judiciary Committee also
famously received the Watergate grand jury's ``roadmap''
describing evidence of potential offenses committed by
President Nixon.\86\ That report--which was not disclosed to
the public until nearly 45 years later--described and appended
evidence gathered through months of secret grand jury
proceedings, during which counsel for defendants were not
permitted to appear or question witnesses.
---------------------------------------------------------------------------
\84\Nixon Impeachment Hearings at 95; see also Senate Select
Committee Report at xxx.
\85\Work of the Impeachment Inquiry Staff as of March 1, 1974 at 4,
93d Cong. (Comm. Print 1974).
\86\See Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974).
---------------------------------------------------------------------------
In the course of the Judiciary Committee's investigation,
Committee staff also conducted interviews of witnesses in
private settings in which no counsel for President Nixon was
present. During a closed-door briefing in February 1974,
Special Counsel John A. Doar made clear to members that counsel
for the Minority would not necessarily be present for all
interviews either, depending upon the circumstances.\87\ In an
effort to develop appropriate procedures governing the inquiry,
Committee staff reviewed in detail the proceedings used in
prior impeachment inquiries dating back to the eighteenth
century. In a memorandum describing their findings, Committee
staff noted they had found ``[n]o record . . . of any
impeachment inquiry in which the official under investigation
participated in the investigation stage preceding commencement
of Committee hearings.''\88\ Nor had Committee staff found any
instance in which ``the official underinvestigation . . . was
granted access to the Committee's evidence before it was
offered at a hearing.''\89\
---------------------------------------------------------------------------
\87\Nixon Impeachment Hearings at 96.
\88\Impeachment Inquiry Staff, H. Comm. on the Judiciary,
Memorandum: Presentation Procedures for the Impeachment Inquiry at 11,
93d Cong. (Apr. 3, 1974).
\89\Id. at 18.
---------------------------------------------------------------------------
Later in the spring and early summer of 1974, the Committee
held a series of closed-door meetings for formal presentations
of evidence by Committee counsel. As relevant here, the
procedures it adopted for those presentations allowed the
President's counsel to attend strictly as an observer, to be
provided with evidence as it was presented, and to present
evidence orally or in writing afterward.\90\ It was only in the
final stages of the Judiciary Committee's inquiry--in late June
and July 1974--that President Nixon's counsel was permitted to
present evidence and to call and question witnesses.\91\ These
proceedings also occurred in closed executive sessions of the
Committee, as did the questioning of additional witnesses
called by the Committee.\92\ In total, the Committee heard
testimony from nine witnesses in these closed-door hearings,
with the transcripts made available to the public
afterward.\93\ The sole public portions of the Committee's
proceedings in which it considered the evidence were several
days of debate between members about whether to recommend
articles of impeachment.\94\ The Committee ultimately voted on
July 27, July 29, and July 30, 1974 to adopt three articles of
impeachment,\95\ and President Nixon resigned from office
shortly afterward.
---------------------------------------------------------------------------
\90\See Nixon Impeachment Hearings App. VI, ``Impeachment Inquiry
Procedures''; e.g., id. at 1189 (Chairman prohibited President Nixon's
counsel from introducing a response to Committee's presentations at
this stage).
\91\Committee Report on Nixon Articles of Impeachment (1974) at 9.
\92\See Nixon Impeachment Hearings at 1719-1866 (presentations by
President Nixon's counsel); id. at 1867-79 (voting to conduct witness
testimony in executive session).
\93\See generally Testimony of Witnesses: Hearings Before the H.
Comm. on the Judiciary, 93d Cong. (1974).
\94\Committee Report on Nixon Articles of Impeachment (1974) at 9-
10.
\95\Id. at 10.
---------------------------------------------------------------------------
2. President Clinton
The Judiciary Committee's impeachment inquiry concerning
President Clinton occurred over a relatively brief period in
late 1998 and relied almost entirely upon evidence collected by
Independent Counsel Kenneth W. Starr. On September 9, 1998,
Independent Counsel Starr notified the Speaker and Minority
Leader of the House that his office had transmitted an
impeachment referral and 36 sealed boxes of evidence to the
Sergeant-at-Arms.\96\ Two days later, the House approved H.
Res. 525, requiring the Committee to review these materials and
determine whether to recommend that the House proceed with an
impeachment inquiry.\97\ H. Res. 525 further directed that
Independent Counsel Starr's report be published as a House
document and called for all supporting documents and evidence
to be released in the coming weeks, unless determined otherwise
by the Committee.\98\ Many of those materials, including grand
jury materials, were released publicly on September 18 and 28,
1998; some, however, were withheld from the public and the
President.\99\
---------------------------------------------------------------------------
\96\See Impeachment of William J. Clinton, President of the United
States: Report of the H. Comm. on the Judiciary, H. Rep. No. 105-830,
at 123 (hereinafter ``Committee Report on Clinton Articles of
Impeachment (1998)''). Independent Counsel Starr submitted this
referral pursuant to 28 U.S.C. Sec. 595(c), a provision of the now-
expired Independent Counsel Act that required independent counsels to
``advise the House of Representatives of any substantial and credible
information . . . that may constitute grounds for an impeachment.'' See
id. at 123-24.
\97\Committee Report on Clinton Articles of Impeachment (1998) at
125; see H. Res. 525, 105th Cong. (1998).
\98\H. Res. 525 Sec. 2, 105th Cong. (1998).
\99\Committee Report on Clinton Articles of Impeachment (1998) at
125-26.
---------------------------------------------------------------------------
On October 8, 1998, the House adopted H. Res. 581, which
authorized and directed the Judiciary Committee to investigate
``whether sufficient grounds exist for the House of
Representatives to exercise its constitutional power to impeach
William Jefferson Clinton.''\100\ H. Res. 581 contained express
authorization for the Committee to subpoena documents and
witnesses and to issue interrogatories. As with the resolution
governing the Nixon impeachment inquiry, H. Res. 581 specified
that this authority could be exercised by the Chairman or
Ranking Member, with each having the right to refer
disagreements to the full Committee.\101\
---------------------------------------------------------------------------
\100\H. Res. 581, 105th Cong. (1974).
\101\Id. Sec. Sec. 2(b).
---------------------------------------------------------------------------
The Committee's proceedings unfolded rapidly afterward. As
in the Nixon impeachment proceedings, the Committee relied
substantially during its investigation of President Clinton on
evidence gathered from a prior investigation--that conducted by
Independent Counsel Starr. Committee staff also conducted a
limited number of depositions during which counsel for
President Clinton was not present; additionally, Committee
Majority staff conducted interviews which neither Minority
staff nor counsel for the President attended. On two occasions
in October and November 1998, White House attorneys wrote to
Chairman Hyde and Committee Majority counsel expressing concern
about their lack of an opportunity to participate in these
depositions and interviews.\102\ Majority counsel for the
Committee responded by pointing to the Nixon-era staff
memorandum as proof that counsel for the President has no right
to attend depositions or interviews of witnesses. The
President's contrary view, Committee counsel stated, was ``on
the wrong side of history.''\103\
---------------------------------------------------------------------------
\102\Letter from Charles F.C. Ruff, Counsel to the President,
Gregory B. Craig, Special Counsel to the President, and David E.
Kendall, Special Counsel to the President, to Henry Hyde, Chairman, H.
Comm. on the Judiciary (Oct. 23, 1998); Letter from Charles F.C. Ruff,
Counsel to the President, to Thomas E. Mooney, Chief of Staff--General
Counsel, H. Comm. on the Judiciary, and David P. Schippers, Chief
Investigative Counsel, H. Comm. on the Judiciary (Nov. 20, 1998).
\103\Letter from Thomas E. Mooney, Chief of Staff--General Counsel,
H. Comm. on the Judiciary, and David P. Schippers, Chief Investigative
Counsel, H. Comm. on the Judiciary, to Charles F.C. Ruff, Counsel to
the President, Gregory B. Craig, Special Counsel to the President, and
David E. Kendall, Special Counsel to the President, at 2-3 (Nov. 9,
1998) (hereinafter ``Mooney Letter'').
---------------------------------------------------------------------------
On November 19, 1998, Independent Counsel Starr testified
in a public hearing before the Committee. He was the sole
witness who presented factual evidence before the Committee,
and his testimony consisted primarily of descriptions of
evidence his office had gathered in the course of its
investigation.\104\ That evidence included tens of thousands of
pages of grand jury testimony,\105\ which by definition was
taken in secret and without the opportunity for adversarial
questioning. In addition, in November and December 1998, the
Subcommittee on the Constitution and the full Committee,
respectively, held open hearings on the background and history
of impeachment and on the offense of perjury.\106\ Finally, on
December 8 and 9, 1998, President Clinton's legal counsel
called multiple panels of outside legal experts and elicited
testimony primarily on whether the President's alleged conduct
rose to the level of impeachable offenses.\107\
---------------------------------------------------------------------------
\104\See generally Impeachment Inquiry: William Jefferson Clinton,
President of the United States: Hearing Before the H. Comm. on the
Judiciary, 105th Cong. (Nov. 19, 1998) (hereinafter ``Starr Hearing'').
President Clinton's counsel was permitted to question Independent
Counsel Starr following questioning by Committee counsel and Members.
Id. at 170-89.
\105\See Committee Report on Clinton Articles of Impeachment (1998)
at 200 (Minority Views); see also Starr Hearing at 170.
\106\See Background and History of Impeachment: Hearing Before the
H. Comm. on the Judiciary, Subcomm. on the Constitution, 105th Cong.
(Nov. 9, 1998); The Consequences of Perjury and Related Crimes: Hearing
Before the H. Comm. on the Judiciary, 105th Cong. (Dec. 1, 1998).
\107\Impeachment Inquiry: William Jefferson Clinton, President of
the United States: Presentation on Behalf of the President: Hearing
Before the H. Comm. on the Judiciary, 105th Cong. (1998). President
Clinton's counsel also called White House Counsel Charles F.C. Ruff to
testify. Id. at 405-58.
---------------------------------------------------------------------------
Between December 10 to 12, 1998, the Committee debated and
voted to adopt four articles of impeachment.\108\ The following
week, the articles were debated on the floor of the House over
the course of two days. On December 19, 1998, the House voted
to approve two of the articles and voted against two
others.\109\ Shortly after that vote, Ranking Member Conyers
wrote to Chairman Hyde expressing concerns that Majority staff
had conducted witness interviews without informing the Minority
and provided summaries of those interviews to certain members
while withholding them from the Minority. Chairman Conyers also
raised concerns that members of the Majority had encouraged
Members whose votes were still undecided to review certain
evidence that had been withheld from the President and the
public in an effort to sway those Members' decision-
making.\110\
---------------------------------------------------------------------------
\108\Committee Report on Clinton Articles of Impeachment (1998) at
128.
\109\144 Cong. Rec. 28, 110-12 (1998).
\110\Letter from John Conyers, Jr., Ranking Member, H. Comm. on the
Judiciary, to Henry J. Hyde, Chairman, H. Comm. on the Judiciary (Dec.
22, 1998).
---------------------------------------------------------------------------
C. THE PROCEDURAL PROTECTIONS AFFORDED TO PRESIDENT TRUMP MET OR
EXCEEDED THOSE AFFORDED IN PAST PRESIDENTIAL IMPEACHMENT INQUIRIES
The House's impeachment inquiry provided President Trump
procedural protections that were consistent with or in some
instances exceeded those afforded to Presidents Nixon and
Clinton. The House's inquiry was conducted with maximal
transparency: transcripts of all interviews and depositions
were made public, and HPSCI and the Judiciary Committee held
seven days of public hearings. All documentary evidence relied
on in HPSCI's report has been made available to President
Trump, and much of it has been made public. Furthermore, during
proceedings before the Judiciary Committee, President Trump was
offered numerous opportunities to have his counsel participate,
including by cross-examining witnesses and presenting evidence.
The President's decision to reject these opportunities to
participate affirms that his principal objective was to
obstruct the House's inquiry rather than assist in its full
consideration of all relevant evidence.
1. The House's Inquiry Was Conducted With Maximal Transparency
The House's impeachment inquiry against President Trump was
unique in its lack of reliance on the work of another
investigative body. Instead, the Investigating Committees
performed their own extensive investigative work--and they did
so with abundant transparency. Twelve key witnesses critical to
the Committees' investigation testified in publicly televised
hearings. All transcripts for each of the seventeen witnesses
interviewed or deposed have been made public and posted on
HPSCI's website, subject to minimal redactions to protect
classified or sensitive information. All documentary evidence
relied on in HPSCI's report has been made available to the
President and to the Judiciary Committee, and significant
portions have been released to the public as well.
Those facts alone render this inquiry more transparent than
those against Presidents Nixon and Clinton. As noted
previously, during the House's impeachment inquiry into
President Nixon, not a single evidentiary hearing took place in
public. And although transcripts of closed-door witness
hearings were subsequently released, notes or transcripts from
private witness interviews were not. In addition, the Judiciary
Committee relied on voluminous evidence that was obtained
through other investigations, including investigations by
prosecutors, a grand jury, and the Senate Select Committee. The
Judiciary Committee amassed a collection of files from those
investigations and maintained them under strict confidentiality
procedures. With respect to President Clinton, the Judiciary
Committee's impeachment inquiry was based almost solely upon
evidence transmitted by Independent Counsel Starr. That
evidence was collected in secret grand jury proceedings or
through other law enforcement mechanisms. Even after the
evidence was transmitted to the Judiciary Committee, not all of
it was disclosed publicly. Furthermore, Committee staff
conducted non-public depositions and interviews.
As the Majority counsel for HPSCI explained in his
presentation to the Judiciary Committee, conducting witness
interviews in a manner that does not allow witnesses to ``line
up their stories''' is a ``[b]est investigative
practice.''\111\ Closed-door depositions in the present inquiry
were necessary during earlier stages of the investigation to
prevent witnesses from reviewing one another's testimony and
tailoring their statements accordingly.\112\ Indeed, the
Judiciary Committee is unaware of any factfinding process--
whether in criminal investigations or administrative
proceedings--in which all witnesses are interviewed in full
view of each other and of the person under investigation.
Nevertheless, HPSCI released transcripts of the depositions it
conducted on a rolling basis within weeks of their occurrence.
In addition, the Judiciary Committee's proceedings were
conducted in full public view.
---------------------------------------------------------------------------
\111\The Impeachment Inquiry into President Donald J. Trump:
Presentations from the House Permanent Select Committee on Intelligence
and House Judiciary Committee: Hearing Before the H. Comm. on the
Judiciary, 116th Cong. (2019) (testimony by Daniel Goldman).
\112\Id.
---------------------------------------------------------------------------
2. The President Was Afforded Meaningful Opportunities to Participate
At the investigative stage before HPSCI and the Committees
on Oversight and Reform and Foreign Affairs, President Trump
made concerted efforts to ensure that his closest advisors
would not be heard from, including by ordering an across-the-
board blockade of the House's inquiry and by directing multiple
White House and other Executive Branch officials not to appear.
Nonetheless, President Trump was offered--but declined--
numerous opportunities to participate in the House's
proceedings when they reached the Judiciary Committee.
Pursuant to the ``Impeachment Inquiry Procedures in the
Committee on the Judiciary'' described above, the President was
given the opportunity to: have counsel attend any presentations
of evidence before the Committee; have counsel ask questions
during those presentations; respond orally or in writing to any
evidence presented; request that additional witnesses be
called; have counsel attend all other hearings in which
witnesses were called; have counsel raise objections during
those hearings; have counsel question any such witnesses; and
have counsel provide a concluding presentation. For example,
President Trump's counsel could have questioned counsel for
HPSCI during his detailed presentation of evidence at the
Committee's December 9 hearing. The President's counsel could
also have questioned any of the four legal scholars who
appeared during the Committee's December 4 hearing. The
President could have submitted a statement in writing
explaining his account of events--or he could have had his
counsel make a presentation of evidence or request that other
witnesses be called. President Trump did none of those things.
These privileges were equivalent to or exceeded those
afforded to Presidents Nixon and Clinton. As noted previously,
the Judiciary Committee conducted numerous closed-door
briefings and took substantial investigative steps before
affording any opportunities for President Nixon's counsel to
participate, including conducting private interviews of
witnesses. In addition, when President Nixon's counsel was
later granted permission to attend closed-door presentations of
evidence by Committee counsel, he could do so only as a passive
observer. President Trump, by contrast, could have had his
attorney cross-examine HPSCI's counsel during his presentation
of evidence. That opportunity was also equivalent to the
opportunity afforded to President Clinton to have his counsel
cross-examine Independent Counsel Starr--which he did, at
length.\113\
---------------------------------------------------------------------------
\113\Starr Hearing at 170-89.
---------------------------------------------------------------------------
Furthermore, although President Trump has complained that
his counsel was not afforded the opportunity to participate
during HPSCI's proceedings, the proceedings against Presidents
Nixon and Clinton demonstrate that in neither case was the
President permitted to have counsel participate in the initial
fact-gathering stages of the impeachment inquiry. As Committee
staff explained during the Nixon impeachment inquiry--and then
reiterated during the Clinton impeachment inquiry--there were
no records from any prior impeachment inquiry of an ``official
under investigation participat[ing] in the investigation stage
preceding commencement of committee hearings''' or being
offered access to Committee evidence ``before it was offered at
a hearing.''\114\ That is doubly true for the investigative
proceedings that took place before the House began its
impeachment inquiries against Presidents Nixon and Clinton.
President Nixon certainly had no attorney present when
prosecutors and grand juries began collecting evidence about
Watergate and related matters, nor did he have an attorney
present when the Senate Select Committee began interviewing
witnesses and holding public hearings. Nor did President
Clinton have an attorney present when prosecutors from the
Office of Independent Counsel Kenneth Starr deposed witnesses
and elicited their testimony before a grand jury.
---------------------------------------------------------------------------
\114\Mooney Letter at 3 (quoting Memorandum from Impeachment
Inquiry Staff at 11, H. Comm. on the Judiciary (Apr. 3, 1974));
Memorandum from Impeachment Inquiry Staff, H. Comm. on the Judiciary at
18 (Apr. 3, 1974).
---------------------------------------------------------------------------
Indeed, the proceedings before the Investigating Committees
can be most closely analogized to the Senate Select Committee
proceedings during Watergate. In both instances, Congressional
bodies other than the House Judiciary Committee engaged in
fact-finding investigations of grave Presidential misconduct.
Those investigations included private interviews and
depositions followed by public hearings--after which all
investigative files were provided to the House Judiciary
Committee. The only difference is that in this case,
transcripts of all interviews and depositions have been made
public; all documentary evidence relied on by HPSCI in its
report has been made available to the President; and the
President's counsel could have participated and raised
questions during presentations of evidence but chose not to.
3. The President Was Not Entitled to Additional Procedural Rights
White House Counsel Pat A. Cipollone suggested in his
October 8 letter on behalf of President Trump that the
President was entitled to a host of additional due process
rights during the House's impeachment inquiry, including ``the
right to see all evidence, to present evidence, to call
witnesses, to have counsel present at all hearings, to cross-
examine all witnesses, to make objections . . . , and to
respond to evidence and testimony.''\115\ He also indicated
that the President was entitled to review all favorable
evidence and all evidence bearing on the credibility of
witnesses.\116\
---------------------------------------------------------------------------
\115\Oct. 8 Cipollone Letter.
\116\Id.
---------------------------------------------------------------------------
These are the types of procedural protections, however,
typically afforded in criminal trials--not during preliminary
investigative stages.\117\ As HPSCI explained in its report,
``there is no requirement that the House provide these
procedures during an impeachment inquiry.''\118\ Rather, as
Chairman Rodino stated during the Nixon impeachment inquiry,
the President's participation ``is not a right but a privilege
or a courtesy.''\119\
---------------------------------------------------------------------------
\117\Cf., e.g., United States v. Calandra, 414 U.S. 338, 350 (1974)
(rejecting procedural protections that would ``saddle a grand jury with
minitrials and . . . assuredly impede its investigation'').
\118\Ukraine Report at 212.
\119\Nixon Impeachment Hearings at 497.
---------------------------------------------------------------------------
In any event, the core privileges described in Mr.
Cipollone's letter were in fact offered to President Trump as
courtesies during the Judiciary Committee's proceedings. The
President was able to review ``all evidence'' relied on by the
Investigating Committees, including evidence that the
Minority's public report identified as favorable to him. During
the Judiciary Committee's proceedings, the President had
opportunities to present evidence, call witnesses, have counsel
present to raise objections and cross-examine witnesses, and
respond to the evidence raised against him. As the Rules
Committee report accompanying H. Res. 660 noted, these
privileges are ``commensurate with the inquiry process followed
in the cases of President Nixon and President Clinton.''\120\
President Trump simply chose not to avail himself of the
procedural opportunities afforded to him.
---------------------------------------------------------------------------
\120\Rules Committee Report at 7.
---------------------------------------------------------------------------
D. THE MINORITY WAS AFFORDED FULL AND ADEQUATE PROCEDURAL RIGHTS
Members of the Minority have also contended that they were
not afforded the full procedural rights provided to the
Minority in prior impeachment inquiries and have raised a host
of related objections to the proceedings. These claims lack
merit.
First, the Minority has contended that it was deprived of
the ability to subpoena witnesses and documentary evidence.
However, the rules governing both the Nixon and Clinton
impeachment inquiries rendered the Minority's subpoena
authority equally contingent on the Majority. Under H. Res. 803
(governing the Nixon proceedings) and H. Res. 581 (governing
the Clinton proceedings), the Chairman could refer a subpoena
request by the Ranking Member for a vote by the full Committee
if the Chairman disagreed with such a request.\121\ So too
here, H. Res. 660 authorized the Ranking Member to issue
subpoenas with the Chairman's concurrence, or to refer such
requests for a vote by the full Committee if the Chairman
declined to concur.\122\
---------------------------------------------------------------------------
\121\H. Res. 803 Sec. 2(b), 93d Cong. (1974); H. Res. 581
Sec. 2(b), 105th Cong. (1998).
\122\H. Res. 660 Sec. 4(c). The only distinction is that H. Res.
660 did not reciprocally allow the Ranking Member to refer subpoena
requests by the Chairman for a full Committee vote. But that is because
contemporary House Rules already permit the Judiciary Committee and
other committees to delegate their subpoena authority to their chairs.
House Rule XI.2(m)(3)(A)(i). It makes little sense to suggest that the
subpoena authority of the Chairman of the Judiciary Committee should be
reduced during an impeachment inquiry.
---------------------------------------------------------------------------
Second, the Minority has contended that the Committee
should have heard testimony from additional witnesses they
requested, including the whistleblower, various individuals
with whom the whistleblower spoke, and even Chairman
Schiff.\123\ As an initial matter, during HPSCI's proceedings,
the Minority called three witnesses of its choosing--Ambassador
Volker, Undersecretary Hale, and Mr. Morrison. Ambassador
Volker and Mr. Morrison testified on their own panel at length;
and their testimony only served to corroborate other witnesses'
accounts of the President's misconduct.\124\ As to proceedings
before the Judiciary Committee, the Minority called a witness
of its choosing to present views during the Committee's
December 4 hearing on Constitutional Grounds for Presidential
Impeachment. Furthermore, Minority counsel had equal time to
present arguments and evidence during the Committee's December
9 hearing. However, as Chairman Schiff stated and as Chairman
Nadler reiterated, Congress has an imperative interest in
protecting whistleblowers. And in this particular instance,
Congress has an especially critical need to prevent the House's
impeachment inquiry from being used to ``facilitate the
President's effort to threaten, intimidate, and retaliate
against the whistleblower,'' which placed his or her personal
safety at grave risk.\125\ Furthermore, the whistleblower's
allegations were not relied upon by HPSCI or the Judiciary
Committee in reaching their conclusions, making his or her
testimony ``redundant and unnecessary.''\126\ Rather, HPSCI
adduced independent and more direct evidence.\127\
---------------------------------------------------------------------------
\123\See Letter from Doug Collins, Ranking Member, H. Comm. on the
Judiciary, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Dec.
6, 2019).
\124\Impeachment Inquiry: Ambassador Kurt Volker and Timothy
Morrison: Hearing Before the H. Perm. Select Comm. on Intelligence,
116th Cong. (2019); see, e.g., Ukraine Report at 123 (Ambassador Volker
testified that Department of Justice did not make an official request
for Ukraine's assistance in law enforcement investigations).
\125\Letter from Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, to Doug Collins, Ranking Member, H. Comm. on the Judiciary
(Dec. 9, 2019).
\126\Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, to Devin Nunes, Ranking Member, H. Perm. Select Comm. on
Intelligence (Nov. 9, 2019).
\127\Id.
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In addition, the Ranking Member and all other Committee
Members had the full opportunity to question HPSCI's lead
investigative counsel during the Committee's December 9
hearing. Presentation of evidence by Committee counsel is
consistent with the procedures followed during the Nixon
impeachment inquiry--and in no impeachment inquiry has the
House relied upon evidentiary presentations from another
Member. Finally, the Ranking Member's request to hear testimony
from other witnesses such as Hunter Biden was well outside the
scope of the impeachment inquiry and would have allowed the
President and his allies in Congress to propagate exactly the
same kinds of misinformation that President Trump corruptly
pressured Ukraine to propagate for his own political benefit.
Such witnesses were entirely irrelevant to the question of
whether President Trump abused his power for his personal gain.
Third, the Minority requested that it be entitled to a day
of hearings pursuant to House Rule XI.2(j)(1), which entitles
the Minority, upon request, to call witnesses to testify
regarding any ``measure or matter'' considered in a committee
hearing ``during at least one day of hearing thereon.'' The
Minority requested a hearing day on the subject of
constitutional grounds for impeachment, as discussed at the
Committee's December 4 hearing. However, as Chairman Nadler
explained in ruling against the Ranking Member's point of
order, this Rule does not require the Chairman ``to schedule a
hearing on a particular day,'' nor is the Chairman required
``to schedule the hearing as a condition precedent to taking
any specific legislative action.''\128\ Indeed, a report
accompanying this provision when it was first promulgated
stated that its purpose was not ``an authorization for delaying
tactics.''\129\ Chairman Nadler further explained that the
Minority had been afforded the opportunity to have its views
represented through its witness during the December 4 hearing,
who testified at length. Additionally, the Chairman said he was
willing to work with the Minority to schedule a Minority day
for a hearing at an appropriate time.\130\
---------------------------------------------------------------------------
\128\H. Res. 755, Articles of Impeachment Against President Donald
J. Trump: Markup Before H. Comm. on the Judiciary, 116th Cong. (Dec.
11, 2019) (ruling on point of order by Chairman Nadler) (hereinafter
``H. Res. 755 Markup'').
\129\Legislative Reorganization Act of 1970, H. Rep. No. 91-1215,
at 6 (1970).
\130\H. Res. 755 Markup (ruling on point of order by Chairman
Nadler).
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Fourth, the Minority has contended that the proceedings
before the Judiciary Committee were inadequate because the
Committee did not hear from ``fact witnesses.'' The evidence in
the House's impeachment inquiry consists of more than one
hundred hours of deposition or interview testimony by seventeen
witnesses, followed by five days of live televised hearings
with twelve fact witnesses.\131\ At bottom, the Minority's
objection instead amounts to a claim that fact hearings do not
count unless they occur before this Committee. That notion is
inconsistent with both the Nixon and Clinton impeachment
inquiries, in which the Judiciary Committee relied on, inter
alia, public and private testimony before the Senate Select
Committee in the case of President Nixon, and transcripts of
grand jury proceedings in the case of President Clinton. In
this instance, HPSCI and the Committees on Oversight and Reform
and Foreign Affairs conducted their witness examinations ably
and transparently, working within their subject matter areas of
expertise. Furthermore, to the extent Judiciary Committee
members wished to probe the evidentiary record, they had
opportunities to do so when HPSCI's Majority and Minority
counsels presented evidence before the Committee.
---------------------------------------------------------------------------
\131\Ukraine Report at 7.
---------------------------------------------------------------------------
Finally, the Minority has repeatedly suggested that the
House's impeachment inquiry has been rushed. The House's
investigation of the President's conduct regarding Ukraine
began in early September and has proceeded for more than three
months. In addition, that investigation followed extensive
investigations into the President's having welcomed foreign
assistance from Russia during the 2016 United States
Presidential election and then obstructing the law enforcement
investigation that ensued. President Trump's efforts to enlist
the assistance of another foreign government for the 2020
United States Presidential election therefore raised immediate
alarm and required prompt action. As HPSCI's report states,
``[w]ith this backdrop, the solicitation of new foreign
intervention was the act of a president unbound.''\132\
---------------------------------------------------------------------------
\132\Id. at 10.
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The House's investigation of President Trump's misconduct--
which occupied a time frame commensurate with that for the
impeachment inquiry against President Clinton--was fair and
thorough. The Investigating Committees assembled a
comprehensive record that was more than sufficient to provide
them with a thorough picture of the facts. To the extent gaps
remained, they resulted from President Trump's obstruction of
Congress. The urgency posed by the President's abuse of his
office, his invitation of foreign interference in the 2020
United States Presidential election, and his disregard for any
mechanisms of accountability required concerted action by the
House, not further delay.
V. Conclusion
The House conducted a thorough and fair inquiry regarding
President Trump's misconduct, notwithstanding the unique and
extraordinary challenges posed by the President's obstruction.
The Investigating Committees amassed thorough and irrefutable
evidence that the President abused his office by pressuring a
foreign government to interfere in the next election. When
committees of the House--rather than a grand jury, a Senate
committee, or an Independent Counsel--must serve as primary
investigators in an impeachment inquiry, they have an
obligation to balance investigative needs and best practices
for collecting evidence with the President's interest in
telling his story and the public interest in transparency. But
that does not entitle the President to inject himself at each
and every stage of the proceedings, thus confounding the
House's inquiry.
Here, consistent with historical practice, the House
divided its impeachment inquiry into two phases, first
collecting evidence and then bringing that evidence before the
Judiciary Committee for its consideration of articles of
impeachment. The Judiciary Committee then evaluated the
evidence in a process that afforded President Trump the same or
more privileges of his predecessors who have faced impeachment
inquiries. The President's refusal to comply with or
participate in these proceedings only confirmed his intent to
obstruct Congress in the performance of its essential
constitutional functions.
Constitutional Grounds for Presidential Impeachment
I. Introduction
Our President holds the ultimate public trust. He is vested
with powers so great that they frightened the Framers of our
Constitution; in exchange, he swears an oath to faithfully
execute the laws that hold those powers in check. This oath is
no formality. The Framers foresaw that a faithless President
could destroy their experiment in democracy. As George Mason
warned at the Constitutional Convention, held in Philadelphia
in 1787, ``if we do not provide against corruption, our
government will soon be at an end.''\133\ Mason evoked a well-
known historical truth: when corrupt motives take root, they
drive an endless thirst for power and contempt for checks and
balances. It is then only the smallest of steps toward acts of
oppression and assaults on free and fair elections. A President
faithful only to himself--who will sell out democracy and
national security for his own personal advantage--is a danger
to every American. Indeed, he threatens America itself.
---------------------------------------------------------------------------
\133\1 Max Farrand, ed., The Records of the Federal Convention of
1787, 392 (1911) (hereinafter, ``Records of the Federal Convention'').
---------------------------------------------------------------------------
Impeachment is the Constitution's final answer to a
President who mistakes himself for a monarch. Aware that power
corrupts, our Framers built other guardrails against that
error. The Constitution thus separates governmental powers,
imposes an oath of faithful execution, prohibits profiting from
office, and guarantees accountability through regular
elections. But the Framers were not naa ve. They knew, and
feared, that someday a corrupt executive might claim he could
do anything he wanted as President. Determined to protect our
democracy, the Framers built a safety valve into the
Constitution: A President can be removed from office if the
House of Representatives approves articles of impeachment
charging him with ``Treason, Bribery, or other high Crimes and
Misdemeanors,'' and if two-thirds of the Senate votes to find
the President guilty of such misconduct after a trial.\134\
---------------------------------------------------------------------------
\134\U.S. Const. art. II, Sec. 4; id. art. I, Sec. 5, cl. 5; id.
art. I, Sec. 3, cl. 6.
---------------------------------------------------------------------------
As Justice Joseph Story recognized, ``the power of
impeachment is not one expected in any government to be in
constant or frequent exercise.''\135\ When faced with credible
evidence of extraordinary wrongdoing, however, it is incumbent
on the House to investigate and determine whether impeachment
is warranted. On October 31, 2019, the House approved H. Res.
660, which, among other things, confirmed the preexisting
inquiry ``into whether sufficient grounds exist for the House
of Representatives to exercise its Constitutional power to
impeach Donald John Trump, President of the United States of
America.''\136\
---------------------------------------------------------------------------
\135\2 Joseph Story, Commentaries on the Constitution of the United
States, 221 (1833).
\136\H. Res. 660, 116th Cong. (2019).
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The Judiciary Committee now faces questions of
extraordinary importance. In prior impeachment inquiries
addressing allegations of Presidential misconduct, the staff of
the Judiciary Committee has prepared reports addressing
relevant principles of constitutional law.\137\ Consistent with
that practice, and to assist the Committee and the House in
working toward a resolution of the questions before them, the
majority staff prepared the following report to explore the
meaning of the words in the Constitution's Impeachment Clause:
``Treason, Bribery, or other high Crimes and Misdemeanors.''
The report also describes the impeachment process and addresses
several mistaken claims about impeachment that have recently
drawn public notice.
---------------------------------------------------------------------------
\137\Staff of H. Comm. on the Judiciary, Constitutional Grounds for
Presidential Impeachment 93d Cong.,4 (Comm. Print 1974) (hereinafter
``Staff Report on Constitutional Grounds for Presidential Impeachment
(1974)''); Staff of H. Comm. on the Judiciary, Constitutional Grounds
for Presidential Impeachment: Modern Precedents, 105th Cong. (Comm.
Print 1998) (hereinafter ``Staff Report on Constitutional Grounds for
Presidential Impeachment: Modern Precedents (1998)'').
---------------------------------------------------------------------------
II. Summary of Principal Conclusions
Our principal conclusions are as follows.
The purpose of impeachment. As the Framers deliberated in
Philadelphia, Mason posed a profound question: ``Shall any man
be above justice?''\138\ By authorizing Congress to remove
Presidents for egregious misconduct, the Framers offered a
resounding answer. As Mason elaborated, ``some mode of
displacing an unfit magistrate is rendered indispensable by the
fallibility of those who choose, as well as by the
corruptibility of the man chosen.''\139\ Unlike Britain's
monarch, the President would answer personally--to Congress and
thus to the Nation--if he engaged in serious wrongdoing.
Alexander Hamilton explained that the President would have no
more resemblance to the British king than to ``the Grand
Seignior, to the khan of Tartary, [or] to the Man of the Seven
Mountains.''\140\ Whereas ``the person of the king of Great
Britain is sacred and inviolable,'' the President of the United
States could be ``impeached, tried, and upon conviction . . .
removed from office.''\141\ Critically, though, impeachment
goes no further. It results only in loss of political power.
This speaks to the nature of impeachment: it exists not to
inflict punishment for past wrongdoing, but rather to save the
Nation from misconduct that endangers democracy and the rule of
law. Thus, the ultimate question in an impeachment is whether
leaving the President in our highest office imperils the
Constitution.\142\
---------------------------------------------------------------------------
\138\2 Farrand, Records of the Federal Convention at 65.
\139\1 Farrand, Records of the Federal Convention at 86.
\140\Alexander Hamilton, Federalist No. 69, 444 (Benjamin Fletcher
Wright ed., 2004).
\141\Id.
\142\See Laurence H. Tribe, American Constitutional Law 155 (3d ed.
2000).
---------------------------------------------------------------------------
Impeachable offenses. The Framers were careful students of
history and knew that threats to democracy can take many forms.
They feared would-be monarchs, but also warned against fake
populists, charismatic demagogues, and corrupt kleptocrats. The
Framers thus intended impeachment to reach the full spectrum of
Presidential misconduct that menaced the Constitution. Because
they could not anticipate and prohibit every threat a President
might someday pose, the Framers adopted a standard sufficiently
general and flexible to meet unknown future circumstances:
``Treason, Bribery, or other high Crimes and Misdemeanors.''
This standard was proposed by Mason and was meant, in his
words, to capture all manner of ``great and dangerous
offenses'' against the Constitution.\143\
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\143\2 Farrand, Records of the Federal Convention at 550.
---------------------------------------------------------------------------
Treason and bribery. Applying traditional tools of
interpretation puts a sharper point on this definition of
``high Crimes and Misdemeanors.'' For starters, it is useful to
consider the two impeachable offenses that the Framers
identified for us. ``Treason'' is an unforgiveable betrayal of
the Nation and its security. A President who levies war against
the government, or lends aid and comfort to our enemies, cannot
persist in office; a President who betrays the Nation once will
most certainly do so again. ``Bribery,'' in turn, sounds in
abuse of power. Impeachable bribery occurs when the President
offers, solicits, or accepts something of personal value to
influence his own official actions. By rendering such bribery
impeachable, the Framers sought to ensure that the Nation could
expel a leader who would sell out the interests of ``We the
People'' for his own personal gain.
In identifying ``other high Crimes and Misdemeanors,'' we
are guided by the text and structure of the Constitution, the
records of the Constitutional Convention and state ratifying
debates, and the history of impeachment practice. These sources
demonstrate that the Framers principally intended impeachment
for three overlapping forms of Presidential wrongdoing: (1)
abuse of power, (2) betrayal of the nation through foreign
entanglements, and (3) corruption of office and elections. Any
one of these violations of the public trust justifies
impeachment; when combined in a single course of conduct, they
state the strongest possible case for impeachment and removal
from office.
Abuse of power. There are at least as many ways to abuse
power as there are powers vested in the President. It would
thus be an exercise in futility to attempt a list of every
abuse of power constituting ``high Crimes and Misdemeanors.''
That said, impeachable abuse of power can be roughly divided
into two categories: engaging in official acts forbidden by law
and engaging in official action with motives forbidden by law.
As James Iredell explained, ``the president would be liable to
impeachments [if] he . . . had acted from some corrupt motive
or other.''\144\ This warning echoed Edmund Randolph's teaching
that impeachment must be allowed because ``the Executive will
have great opportunitys of abusing his power.''\145\ President
Richard Nixon's conduct has come to exemplify impeachable abuse
of power: he acted with corrupt motives in obstructing justice
and using official power to target his political opponents, and
his decision to unlawfully defy subpoenas issued by the House
impeachment inquiry was unconstitutional on its face.
---------------------------------------------------------------------------
\144\Quoted in Background and History of Impeachment: Hearing
before the Subcomm. On the Constitution of the H. Comm on the
Judiciary, 105th Cong. 49 (1999) (hereinafter ``1998 Background and
History of Impeachment Hearing'').
\145\2 Farrand, Records of the Federal Convention at 67.
---------------------------------------------------------------------------
Betrayal involving foreign powers. As much as the Framers
feared abuse, they feared betrayal still more. That anxiety is
shot through their discussion of impeachment--and explains why
``Treason'' heads the Constitution's list of impeachable
offenses. James Madison put it simply: the President ``might
betray his trust to foreign powers.''\146\ Although the Framers
did not intend impeachment for good faith disagreements on
matters of diplomacy, they were explicit that betrayal of the
Nation through schemes with foreign powers justified that
remedy. Indeed, foreign interference in the American political
system was among the gravest dangers feared by the Founders of
our Nation and the Framers of our Constitution. In his farewell
address, George Washington thus warned Americans ``to be
constantly awake, since history and experience prove that
foreign influence is one of the most baneful foes of republican
government.''\147\ And in a letter to Thomas Jefferson, John
Adams wrote: ``You are apprehensive of foreign Interference,
Intrigue, Influence. So am I.--But, as often as Elections
happen, the danger of foreign Influence recurs.''\148\
---------------------------------------------------------------------------
\146\Id. at 65-66.
\147\George Washington Farewell Address (1796), George Washington
Papers, Series 2, Letterbooks 1754-1799: Letterbook 24, April 3, 1793--
March 3, 1797, Library of Congress.
\148\To Thomas Jefferson from John Adams, 6 December 1787, Founders
Online, National Archives.
---------------------------------------------------------------------------
Corruption. Lurking beneath the Framers' discussion of
impeachment was the most ancient and implacable foe of
democracy: corruption. The Framers saw no shortage of threats
to the Republic, and sought to guard against them, ``but the
big fear underlying all the small fears was whether they'd be
able to control corruption.''\149\ As Madison put it,
corruption ``might be fatal to the Republic.''\150\ This was
not just a matter of thwarting bribes; it was a far more
expansive challenge. The Framers celebrated civic virtue and
love of country; they wrote rules to ensure officials would not
use public power for private gain.
---------------------------------------------------------------------------
\149\Zephyr Teachout, Corruption in America: From Benjamin
Franklin's Snuff Box to Citizens United 57 (2014).
\150\2 Farrand, Records of the Federal Convention at 66.
---------------------------------------------------------------------------
Impeachment was seen as especially necessary for
Presidential conduct corrupting our system of political self-
government. That concern arose in multiple contexts as the
Framers debated the Constitution. The most important was the
risk that Presidents would place their personal interest in re-
election above our bedrock national commitment to democracy.
The Framers knew that corrupt leaders concentrate power by
manipulating elections and undercutting adversaries. They
despised King George III, who ``resorted to influencing the
electoral process and the representatives in Parliament in
order to gain [his] treacherous ends.''\151\ That is why the
Framers deemed electoral treachery a central ground for
impeachment. The very premise of the Constitution is that the
American people govern themselves, and choose their leaders,
through free and fair elections. When the President concludes
that elections might threaten his grasp on power and abuses his
office to sabotage opponents or invite inference, he rejects
democracy itself and must be removed.
---------------------------------------------------------------------------
\151\Gordon S. Wood, The Creation of the American Republic, 1776-
1787 33 (1998).
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Conclusions regarding the nature of impeachable offenses.
In sum, history teaches that ``high Crimes and Misdemeanors'''
referred mainly to acts committed by public officials, using
their power or privileges, that inflicted grave harm on our
political order. Such great and dangerous offenses included
treason, bribery, serious abuse of power, betrayal of the
national interest through foreign entanglements, and corruption
of office and elections. They were unified by a clear theme:
officials who abused, abandoned, or sought personal benefit
from their public trust--and who threatened the rule of law if
left in power--faced impeachment. Each of these acts, moreover,
should be plainly wrong to reasonable officials and persons of
honor. When a political official uses political power in ways
that substantially harm our political system, Congress can
strip them of that power.
Within these parameters, and guided by fidelity to the
Constitution, the House must judge whether the President's
misconduct is grave enough to require impeachment. That step
must never be taken lightly. It is a momentous act, justified
only when the President's full course of conduct, assessed
without favor or prejudice, is ``seriously incompatible with
either the constitutional form and principles of our government
or the proper performance of constitutional duties of the
presidential office.''\152\ But when that high standard is met,
the Constitution calls the House to action--and the House, in
turn, must rise to the occasion. In such cases, a decision not
to impeach can harm democracy and set an ominous precedent.
---------------------------------------------------------------------------
\152\Report of the Committee on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, H.. Rep. No. 93-1305
8 (1974) (hereinafter ``Committee Report on Nixon Articles of
Impeachment (1974)'').
---------------------------------------------------------------------------
The criminality issue. It is occasionally suggested that
Presidents can be impeached only if they have committed crimes.
That position was rejected in President Nixon's case, and then
rejected again in President Clinton's, and should be rejected
once more. Offenses against the Constitution are different than
offenses against the criminal code. Some crimes, like
jaywalking, are not impeachable. And some forms of misconduct
may offend both the Constitution and the criminal law.
Impeachment and criminality must therefore be assessed
separately--even though the President's commission of
indictable crimes may further support a case for impeachment
and removal. Ultimately, the House must judge whether a
President's conduct offends and endangers the Constitution
itself.
Fallacies about impeachment. In the final section, we
briefly address six falsehoods about impeachment that have
recently drawn public notice.
First, contrary to mistaken claims otherwise, we
demonstrate that the current impeachment inquiry has complied
in every respect with the Constitution, the Rules of the House,
and historic practice and precedent of the House.
Second, we address several evidentiary matters. The House
impeachment inquiry has compiled substantial direct and
circumstantial evidence bearing on the issues at hand.
Nonetheless, President Trump has objected that some of the
evidence gathered by the House comes from witnesses lacking
first-hand knowledge of his conduct. But in the same breath, he
has unlawfully ordered many witnesses with first-hand knowledge
to defy House subpoenas. As we show, President Trump's
assertions regarding the evidence before the House are
misplaced as a matter of constitutional law and common sense.
Third, we consider President Trump's claim that his actions
are protected because of his right under Article II of the
Constitution ``to do whatever I want as president.''\153\ This
claim is wrong, and profoundly so, because our Constitution
rejects pretensions to monarchy and binds Presidents with law.
That is true even of powers vested exclusively in the chief
executive. If those powers are invoked for corrupt reasons, or
wielded in an abusive manner harming the constitutional system,
the President is subject to impeachment for ``high Crimes and
Misdemeanors.'' This is a core premise of the impeachment
power.
---------------------------------------------------------------------------
\153\Remarks by President Trump at Turning Point USA's Teen Student
Action Summit 2019, July 23, 2019, The White House.
---------------------------------------------------------------------------
Fourth, we address whether the House must accept at face
value President Trump's claim that his motives were not
corrupt. In short, no. When the House probes a President's
state of mind, its mandate is to find the facts. That means
evaluating the President's account of his motives to see if it
rings true. The question is not whether the President's conduct
could have resulted from permissible motives. It is whether the
President's real reasons, the ones in his mind at the time,
were legitimate. Where the House discovers persuasive evidence
of corrupt wrongdoing, it is entitled to rely upon that
evidence to impeach.
Fifth, we explain that attempted Presidential wrongdoing is
impeachable. Mason himself said so at the Constitutional
Convention, where he described ``attempts to subvert the
Constitution'' as a core example of ``great and dangerous
offenses.''\154\ Moreover, the Judiciary Committee reached the
same conclusion in President Nixon's case. Historical precedent
thus confirms that ineptitude and insubordination do not afford
the President a defense to impeachment. A President cannot
escape impeachment just because his scheme to abuse power,
betray the nation, or corrupt elections was discovered and
abandoned.
---------------------------------------------------------------------------
\154\Cass R. Sunstein, Impeachment: A Citizen's Guide 47 (2017).
---------------------------------------------------------------------------
Finally, we consider whether impeachment ``nullifies'' the
last election or denies voters their voice in the next one. The
Framers themselves weighed this question. They considered
relying solely on elections--rather than impeachment--to remove
wayward Presidents. That position was firmly rejected. No
President is entitled to persist in office after committing
``high Crimes and Misdemeanors,'' and no one who voted for him
in the last election is entitled to expect he will do so. Where
the President's misconduct is aimed at corrupting elections,
relying on elections to solve the problem is no safeguard at
all.
III. The Purpose of Impeachment
Freedom must not be taken for granted. It demands constant
protection from leaders whose taste of power sparks a voracious
need for more. Time and again, republics have fallen to
officials who care little for the law and use the public trust
for private gain.
The Framers of the Constitution knew this well. They saw
corruption erode the British constitution from within. They
heard kings boast of their own excellence while conspiring with
foreign powers and consorting with shady figures. As talk of
revolution spread, they objected as King George III used favors
and party politics to control Parliament, aided by men who sold
their souls and welcomed oppression.
The Framers risked their freedom, and their lives, to
escape that monarchy. So did their families and many of their
friends. Together, they resolved to build a nation committed to
democracy and the rule of law--a beacon to the world in an age
of aristocracy. In the United States of America, ``We the
People'' would be sovereign. We would choose our own leaders
and hold them accountable for how they exercised power.
As they designed our government at the Constitutional
Convention, however, the Framers faced a dilemma. On the one
hand, many of them embraced the need for a powerful chief
executive. This had been cast into stark relief by the failure
of the Nation's very first constitution, the Articles of
Confederation, which put Congress in charge at the federal
level. The ensuing discord led James Madison to warn, ``it is
not possible that a government can last long under these
circumstances.''\155\ The Framers therefore created the
Presidency. A single official could lead the Nation with
integrity, energy, and dispatch--and would be held personally
responsible for honoring that immense public trust.
---------------------------------------------------------------------------
\155\Quoted in id. at 27.
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Power, though, is a double-edged sword. ``The power to do
good meant also the power to do harm, the power to serve the
republic also meant the power to demean and defile it.''\156\
The President would be vested with breathtaking authority. If
corrupt motives took root in his mind, displacing civic virtue
and love of country, he could sabotage the Constitution. That
was clear to the Framers, who saw corruption as ``the great
force that had undermined republics throughout history.''\157\
Obsessed with the fall of Rome, they knew that corruption
marked a leader's path to abuse and betrayal. Mason thus
emphasized, ``if we do not provide against corruption, our
government will soon be at an end.'' This warning against
corruption--echoed no fewer than 54 times by 15 delegates at
the Convention--extended far beyond bribes and presents. To the
Framers, corruption was fundamentally about the misuse of a
position of public trust for any improper private benefit. It
thus went to the heart of their conception of public service.
As a leading historian recounts, ``a corrupt political actor
would either purposely ignore or forget the public good as he
used the reins of power.''\158\ Because men and women are not
angels, corruption could not be fully eradicated, even in
virtuous officials, but ``its power can be subdued with the
right combination of culture and political rules.''\159\
---------------------------------------------------------------------------
\156\Arthur M. Schlesinger, Jr., The Imperial Presidency 415
(1973).
\157\Elizabeth B. Wydra & Brianne J. Gorod, The First Magistrate in
Foreign Pay, The New Republic, Nov. 11, 2019.
\158\Teachout, Corruption in America at 48.
\159\Id. at 47.
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The Framers therefore erected safeguards against
Presidential abuse. Most famously, they divided power among
three branches of government that had the means and motive to
balance each other. ``Ambition,'' Madison reasoned, ``must be
made to counteract ambition.''\160\ In addition, the Framers
subjected the President to election every four years and
established the Electoral College (which, they hoped, would
select virtuous, capable leaders and refuse to re-elect corrupt
or unpopular ones). Finally, the Framers imposed on the
President a duty to faithfully execute the laws--and required
him to accept that duty in a solemn oath.\161\ To the Framers,
the concept of faithful execution was profoundly important. It
prohibited the President from taking official acts in bad faith
or with corrupt intent, as well as acts beyond what the law
authorized.\162\
---------------------------------------------------------------------------
\160\James Madison, Federalist No. 51 at 356.
\161\U.S. Const. art. II, Sec. 1, cl. 8.
\162\See Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman,
Faithful Execution and Article II, 132 Harv. L. Rev. 2111-2121 (2019).
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A few Framers would have stopped there. This minority
feared vesting any branch of government with the power to end a
Presidency; as they saw it, even extreme Presidential
wrongdoing could be managed in the normal course (mainly by
periodic elections).
That view was decisively rejected. As Professor Raoul
Berger writes, ``the Framers were steeped in English history;
the shades of despotic kings and conniving ministers marched
before them.''\163\ Haunted by those lessons, and convening in
the shadow of revolution, the Framers would not deny the Nation
an escape from Presidents who deemed themselves above the law.
So they turned to a mighty constitutional power, one that
offered a peaceful and politically accountable method for
ending an oppressive Presidency.
---------------------------------------------------------------------------
\163\Raoul Berger, Impeachment: The Constitutional Problems 4
(1974).
---------------------------------------------------------------------------
This was impeachment, a legal relic from the British past
that over the preceding century had found a new lease on life
in the North American colonies. First deployed in 1376--and
wielded in fits and starts over the following 400 years--
impeachment allowed Parliament to charge royal ministers with
abuse, remove them from office, and imprison them. Over time,
impeachment helped Parliament shift power away from royal
absolutism and encouraged more politically accountable
administration. In 1679, it was thus proclaimed in the House of
Commons that impeachment was ``the chief institution for the
preservation of government.''\164\ That sentiment was echoed in
the New World. Even as Parliamentary impeachment fell into
disuse by the early 1700s, colonists in Maryland, Pennsylvania,
and Massachusetts laid claim to this prerogative as part of
their English birthright. During the revolution, ten states
ratified constitutions allowing the impeachment of executive
officials--and put that power to use in cases of corruption and
abuse of power.\165\ Unlike in Britain, though, American
impeachment did not result in fines or jailtime. It simply
removed officials from political power when their conduct
required it.
---------------------------------------------------------------------------
\164\Id. at 1 n.2.
\165\Frank O. Bowman, III, High Crimes and Misdemeanors: A History
of Impeachment for the Age of Trump 72 (2019).
---------------------------------------------------------------------------
Familiar with the use of impeachment to address lawless
officials, the Framers offered a clear answer to Mason's
question at the Constitutional Convention, ``Shall any man be
above justice''?\166\ As Mason himself explained, ``some mode
of displacing an unfit magistrate is rendered indispensable by
the fallibility of those who choose, as well as by the
corruptibility of the man chosen.''\167\ Future Vice President
Elbridge Gerry agreed, adding that impeachment repudiates the
fallacy that our ``chief magistrate could do no wrong.''\168\
Benjamin Franklin, in turn, made the case that impeachment is
``the best way'' to assess claims of serious wrongdoing by a
President; without it, those accusations would fester
unresolved and invite enduring conflict over Presidential
malfeasance.\169\
---------------------------------------------------------------------------
\166\2 Farrand, Records of the Federal Convention at 65-67.
\167\1 Farrand, Records of the Federal Convention at 66.
\168\2 Farrand, Records of the Federal Convention at 66.
\169\James Madison, Notes on Debates in the Federal Convention of
1787 332 (1987).
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Unlike in Britain, the President would answer personally--
to Congress and thus to the Nation--for any serious wrongdoing.
For that reason, as Hamilton later explained, the President
would have no more resemblance to the British king than to
``the Grand Seignior, to the khan of Tartary, [or] to the Man
of the Seven Mountains.''\170\ Whereas ``the person of the king
of Great Britain is sacred and inviolable,'' the President
could be ``impeached, tried, and upon conviction . . . removed
from office.''\171\
---------------------------------------------------------------------------
\170\Alexander Hamilton, Federalist No. 69 at 444.
\171\Id.
---------------------------------------------------------------------------
Of course, the decision to subject the President to
impeachment was not the end of the story. The Framers also had
to specify how this would work in practice. After long and
searching debate they made three crucial decisions, each of
which sheds light on their understanding of impeachment's
proper role in our constitutional system.
First, they limited the consequences of impeachment to
``removal from Office'' and ``disqualification'' from future
officeholding.\172\ To the extent the President's wrongful
conduct also breaks the law, the Constitution expressly
reserves criminal punishment for the ordinary processes of
criminal law. In that respect, ``the consequences of
impeachment and conviction go just far enough, and no further
than, to remove the threat posed to the Republic by an unfit
official.''\173\ This speaks to the very nature of impeachment:
it exists not to inflict personal punishment for past
wrongdoing, but rather to protect against future Presidential
misconduct that would endanger democracy and the rule of
law.\174\
---------------------------------------------------------------------------
\172\U.S. Const. art. I, Sec. 43, cl. 7.
\173\John O. McGinnis, Impeachment: The Structural Understanding,
67 Geo. Wash. L. Rev. 650, 650 (1999).
\174\See Tribe, American Constitutional Law at 155.
---------------------------------------------------------------------------
Second, the Framers vested the House with ``the sole Power
of Impeachment.''\175\ The House thus serves in a role
analogous to a grand jury and prosecutor: it investigates the
President's misconduct and decides whether to formally accuse
him of impeachable acts. As James Iredell explained during
debates over whether to ratify the Constitution, ``this power
is lodged in those who represent the great body of the people,
because the occasion for its exercise will arise from acts of
great injury to the community.''\176\ The Senate, in turn,
holds ``the sole Power to try all Impeachments.''\177\ When the
Senate sits as a court of impeachment for the President, each
Senator must swear a special oath, the Chief Justice of the
United States presides, and conviction requires ``the
concurrence of two thirds of the Members present.''\178\ By
designating Congress to accuse the President and conduct his
trial, the Framers confirmed--in Hamilton's words--that
impeachment concerns an ``abuse or violation of some public
trust'' with ``injuries done immediately to the society
itself.''\179\ Impeachment is reserved for offenses against our
political system. It is therefore prosecuted and judged by
Congress, speaking for the Nation.
---------------------------------------------------------------------------
\175\U.S. Const. tart. I, Sec. 2, cl. 5.
\176\4 Jonathan Elliot, ed., The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 113 (1861)
(hereinafter ``Debates in the Several State Conventions'').
\177\U.S. Const. art. I, Sec. 3, cl. 6.
\178\Id.
\179\Alexander Hamilton, Federalist No. 65 at 426.
---------------------------------------------------------------------------
Last, but not least, the Framers imposed a rule of
wrongdoing. The President cannot be removed based on poor
management, general incompetence, or unpopular policies.
Instead, the question in any impeachment inquiry is whether the
President has engaged in misconduct justifying an early end to
his term in office: ``Treason, Bribery, or other high Crimes
and Misdemeanors.''\180\ This phrase had a particular legal
meaning to the Framers. It is to that understanding, and to its
application in prior Presidential impeachments, that we now
turn.
---------------------------------------------------------------------------
\180\U.S. Const. art. II, Sec. 4.
---------------------------------------------------------------------------
IV. Impeachable Offenses
As careful students of history, the Framers knew that
threats to democracy can take many forms. They feared would-be
monarchs, but also warned against fake populists, charismatic
demagogues, and corrupt kleptocrats. In describing the kind of
leader who might menace the Nation, Hamilton offered an
especially striking portrait:
When a man unprincipled in private life[,] desperate in his
fortune, bold in his temper . . . known to have scoffed in
private at the principles of liberty--when such a man is seen
to mount the hobby horse of popularity--to join in the cry of
danger to liberty--to take every opportunity of embarrassing
the General Government & bringing it under suspicion--to
flatter and fall in with all the non sense [sic] of the zealots
of the day--It may justly be suspected that his object is to
throw things into confusion that he may ride the storm and
direct the whirlwind.\181\
---------------------------------------------------------------------------
\181\Alexander Hamilton, ``Objections and Answers respecting the
Administration of the Government,'' Founders Online, National Archives.
This prophesy echoed Hamilton's warning, in Federalist No.
1, that ``of those men who have overturned the liberties of
republics, the greatest number have begun their career by
paying an obsequious court to the people; commencing
demagogues, and ending tyrants.''\182\
---------------------------------------------------------------------------
\182\Alexander Hamilton, Federalist No. 1 at 91.
---------------------------------------------------------------------------
The Framers thus intended impeachment to reach the full
spectrum of Presidential misconduct that threatened the
Constitution. They also intended our Constitution to endure for
the ages. Because they could not anticipate and specifically
prohibit every threat a President might someday pose, the
Framers adopted a standard sufficiently general and flexible to
meet unknown future circumstances. This standard was meant--as
Mason put it--to capture all manner of ``great and dangerous
offenses'' incompatible with the Constitution. When the
President uses the powers of his high office to benefit
himself, while injuring or ignoring the American people he is
oath-bound to serve, he has committed an impeachable offense.
Applying the tools of legal interpretation, as we do below,
puts a sharper point on this definition of ``high Crimes and
Misdemeanors.'' It also confirms that the Framers principally
aimed the impeachment power at a few core evils, each grounded
in a unifying fear that a President might abandon his duty to
faithfully execute the laws. Where the President engages in
serious abuse of power, betrays the national interest through
foreign entanglements, or corrupts his office or elections, he
has undoubtedly committed ``high Crimes and Misdemeanors'' as
understood by the Framers. Any one of these violations of the
public trust is impeachable. When combined in a scheme to
advance the President's personal interests while ignoring or
injuring the Constitution, they state the strongest possible
case for impeachment and removal from office.
A. LESSONS FROM BRITISH AND EARLY AMERICAN HISTORY
As Hamilton recounted, Britain afforded ``[t]he model from
which the idea of [impeachment] has been borrowed.''\183\ That
was manifestly true of the phrase ``high Crimes and
Misdemeanors.'' The Framers could have authorized impeachment
for ``crimes'' or ``serious crimes.'' Or they could have
followed the practice of many American state constitutions and
permitted impeachment for ``maladministration'' or
``malpractice.''\184\ But they instead selected a ``unique
phrase used for centuries in English parliamentary
impeachments.''\185\ To understand their choice requires a
quick tour through history.
---------------------------------------------------------------------------
\183\Alexander Hamilton, Federalist No. 65 at 427.
\184\Bowman, High Crimes and Misdemeanors at 65-72.
\185\Constitutional Grounds for Presidential Impeachment (1974) at
4.
---------------------------------------------------------------------------
That tour offers two lessons. The first is that the phrase
``high Crimes and Misdemeanors'' was used only for
parliamentary impeachments; it was never used in the ordinary
criminal law.\186\ Moreover, in the 400-year history of British
impeachments, the House of Commons impeached many officials on
grounds that did not involve any discernibly criminal conduct.
Indeed, the House of Commons did so yet again just as the
Framers gathered in Philadelphia. That same month, Edmund
Burke--the celebrated champion of American liberty--brought
twenty-two articles of impeachment against Warren Hastings, the
Governor General of India. Burke charged Hastings with offenses
including abuse of power, corruption, disregarding treaty
obligations, and misconduct of local wars. Historians have
confirmed that ``none of the charges could fairly be classed as
criminal conduct in any technical sense.''\187\ Aware of that
fact, Burke accused Hastings of ``[c]rimes, not against forms,
but against those eternal laws of justice, which are our rule
and our birthright: his offenses are not in formal, technical
language, but in reality, in substance and effect, High Crimes
and High Misdemeanors.''\188\
---------------------------------------------------------------------------
\186\See id.
\187\Bowman, High Crimes and Misdemeanors at 41.
\188\Id.
---------------------------------------------------------------------------
Burke's denunciation of Hastings points to the second
lesson from British history: ``high Crimes and Misdemeanors''
were understood as offenses against the constitutional system
itself. This is confirmed by use of the word ``high,'' as well
as Parliamentary practice. From 1376 to 1787, the House of
Commons impeached officials on seven general grounds: (1) abuse
of power; (2) betrayal of the nation's security and foreign
policy; (3) corruption; (4) armed rebellion [a.k.a. treason];
(5) bribery; (6) neglect of duty; and (7) violating
Parliament's constitutional prerogatives.\189\ To the Framers
and their contemporaries learned in the law, the phrase ``high
Crimes and Misdemeanors'' would have called to mind these
offenses against the body politic.
---------------------------------------------------------------------------
\189\Id. at 46; Berger, Impeachment at 70.
---------------------------------------------------------------------------
The same understanding prevailed on this side of the
Atlantic. In the colonial period and under newly-ratified state
constitutions, most impeachments targeted abuse of power,
betrayal of the revolutionary cause, corruption, treason, and
bribery.\190\ Many Framers at the Constitutional Convention had
participated in drafting their state constitutions, or in
colonial and state removal proceedings, and were steeped in
this outlook on impeachment. Further, the Framers knew well the
Declaration of Independence, ``whose bill of particulars
against King George III modeled what [we would] now view as
articles of impeachment.''\191\ That bill of particulars did
not dwell on technicalities of criminal law, but rather charged
the king with a ``long train of abuses and usurpations,''
including misuse of power, efforts to obstruct and undermine
elections, and violating individual rights.\192\
---------------------------------------------------------------------------
\190\See Peter Charles Hoffer & N. E. H. Hull, Impeachment in
America, 1635-1805 1-106 (1984).
\191\Laurence H. Tribe & Joshua Matz, To End a Presidency: The
Power of Impeachment 7 (2018).
\192\The Declaration of Independence, Thomas Jefferson, et al, July
4, 1776, Copy of Declaration of Independence, Library of Congress.
---------------------------------------------------------------------------
History thus teaches that ``high Crimes and Misdemeanors''
referred mainly to acts committed by public officials, using
their power or privileges, that inflicted grave harm on society
itself. Such great and dangerous offenses included treason,
bribery, abuse of power, betrayal of the nation, and corruption
of office. They were unified by a clear theme: officials who
abused, abandoned, or sought personal benefit from their public
trust--and who threatened the rule of law if left in power--
faced impeachment and removal.
B. TREASON AND BRIBERY
For the briefest of moments at the Constitutional
Convention, it appeared as though Presidential impeachment
might be restricted to ``treason, or bribery.''\193\ But when
this suggestion reached the floor, Mason revolted. With
undisguised alarm, he warned that such limited grounds for
impeachment would miss ``attempts to subvert the
Constitution,'' as well as ``many great and dangerous
offenses.''\194\ Here he invoked the charges pending in
Parliament against Hastings as a case warranting impeachment
for reasons other than treason. To ``extend the power of
impeachments,'' Mason initially suggested adding ``or
maladministration'' after ``treason, or bribery.''\195\
Madison, however, objected that ``so vague a term will be
equivalent to a tenure during the pleasure of the
Senate.''\196\ In response, Mason substituted ``other high
Crimes and Misdemeanors.''\197\ Apparently pleased with Mason's
compromise, the Convention accepted his proposal and moved on.
---------------------------------------------------------------------------
\193\2 Farrand, Records of the Federal Convention at 550.
\194\Id.
\195\Id.
\196\Id.
\197\Id.
---------------------------------------------------------------------------
This discussion confirms that Presidential impeachment is
warranted for all manner of great and dangerous offenses that
subvert the Constitution. It also sheds helpful light on the
nature of impeachable offenses: in identifying ``other high
Crimes and Misdemeanors,'' we can start with two that the
Framers identified for us, ``Treason'' and ``Bribery.''
1. Impeachable Treason
Under Article III of the Constitution, ``treason against
the United States, shall consist only in levying War against
them, or in adhering to their Enemies, giving them Aid and
Comfort.''\198\ In other words, a person commits treason if he
uses armed force in an attempt to overthrow the government, or
if he knowingly gives aid and comfort to nations (or
organizations) with which the United States is in a state of
declared or open war. At the very heart of ``Treason'' is
deliberate betrayal of the nation and its security. Such
betrayal would not only be unforgivable, but would also confirm
that the President remains a threat if allowed to remain in
office. A President who has knowingly betrayed national
security is a President who will do so again. He endangers our
lives and those of our allies.
---------------------------------------------------------------------------
\198\U.S. Const. art. III, Sec. 3, cl. 1.
---------------------------------------------------------------------------
2. Impeachable Bribery
The essence of impeachable bribery is a government
official's exploitation of his or her public duties for
personal gain. To the Framers, it was received wisdom that
nothing can be ``a greater Temptation to Officers [than] to
abuse their Power by Bribery and Extortion.''\199\ To guard
against that risk, the Framers authorized the impeachment of a
President who offers, solicits, or accepts something of
personal value to influence his own official actions. By
rendering such ``Bribery'' impeachable, the Framers sought to
ensure that the Nation could expel a leader who would sell out
the interests of ``We the People'' to achieve his own personal
gain.
---------------------------------------------------------------------------
\199\William Hawkins, A Treatise of Pleas to the Crown, ch. 67,
Sec. 3 (1716).
---------------------------------------------------------------------------
Unlike ``Treason,'' which is defined in Article III,
``Bribery'' is not given an express definition in the
Constitution. But as Justice Joseph Story explained, a ``proper
exposition of the nature and limits of this offense'' can be
found in the Anglo-American common law tradition known well to
our Framers.\200\ That understanding, in turn, can be refined
by reference to the Constitution's text and the records of the
Constitutional Convention.\201\
---------------------------------------------------------------------------
\200\2 Story, Commentaries at 263; see also H. Rep. No. 946 at 19
(1912).
\201\For example, while the English common law tradition
principally addressed itself to judicial bribery, the Framers
repeatedly made clear at the Constitutional Convention that they
intended to subject the President to impeachment for bribery. They
confirmed this intention in the Impeachment Clause, which authorizes
the impeachment of ``[t]he President, Vice President and all civil
Officers of the United States'' for ``Treason, Bribery, or other high
Crimes and Misdemeanors.'' U.S. Const., art. 2, Sec. 4. It is therefore
proper to draw upon common law principles and to apply them to the
office of the Presidency.
---------------------------------------------------------------------------
To start with common law: At the time of the Constitutional
Convention, bribery was well understood in Anglo-American law
to encompass offering, soliciting, or accepting bribes. In
1716, for example, William Hawkins defined bribery in an
influential treatise as ``the receiving or offering of any
undue reward, by or to any person whatsoever . . . in order to
incline him to do a thing against the known rules of honesty
and integrity.''\202\ This description of the offense was
echoed many times over the following decades. In a renowned
bribery case involving the alleged solicitation of bribes, Lord
Mansfield agreed that ``[w]herever it is a crime to take, it is
a crime to give: they are reciprocal.''\203\ Two years later,
William Blackstone confirmed that ``taking bribes is
punished,'' just as bribery is punishable for ``those who offer
a bribe, though not taken.''\204\ Soliciting a bribe--even if
it is not accepted--thus qualified as bribery at common law.
Indeed, it was clear under the common law that ``the attempt is
a crime; it is complete on his side who offers it.''\205\
---------------------------------------------------------------------------
\202\Hawkins, A Treatise of Pleas to the Crown, ch. 67, Sec. 2
(1716).
\203\Rex v. Vaughan, 98 Eng. Rep. 308, 311 (K.B. 1769).
\204\William Blackstone, Commentaries on the Laws of England, Vol.
2, Book 4, Ch. 10, Sec. 17 (1771).
\205\Rex v. Vaughan, 98 Eng. Rep. 308, 311 (K.B. 1769). American
courts have subsequently repeated this precise formulation. See, e.g.,
State v. Ellis, 33 N.J.L. 102, 104 (N.J. Sup. Ct. 1868) (``The offence
is complete when an offer or reward is made to influence the vote or
action of the official.''); see also William O. Russell, A Treatise on
Crimes and Misdemeanors 239-240 (1st American Ed) (1824) (``The law
abhors the least tendency to corruption; and up on the principle which
has been already mentioned, of an attempt to commit even a misdemeanor,
being itself a misdemeanor, (f) attempts to bribe, though unsuccessful,
have in several cases been held to be criminal.'').
---------------------------------------------------------------------------
The Framers adopted that principle into the Constitution.
As Judge John Noonan explains, the drafting history of the
Impeachment Clause demonstrates that ```Bribery' was read both
actively and passively, including the chief magistrate bribing
someone and being bribed.''\206\ Many scholars of Presidential
impeachment have reached the same conclusion.\207\ Impeachable
``Bribery'' thus covers--inter alia--the offer, solicitation,
or acceptance of something of personal value by the President
to influence his own official actions.
---------------------------------------------------------------------------
\206\John T. Noonan, Jr., Bribes: The Intellectual History of a
Moral Idea 430 (1984).
\207\As Professor Bowman writes, bribery was ``a common law crime
that developed from a narrow beginning'' to reach ``giving, and
offering to give, [any] improper rewards.'' Bowman, High Crimes &
Misdemeanors at 243; see also, e.g., Tribe & Matz, To End A Presidency
at 33 (``The corrupt exercise of power in exchange for a personal
benefit defines impeachable bribery. That's self-evidently true
whenever the president receives bribes to act a certain way. But it's
also true when the president offers bribes to other officials--for
example, to a federal judge, a legislator, or a member of the Electoral
College . . . In either case, the president is fully complicit in a
grave degradation of power, and he can never again be trusted to act as
a faithful public servant.'').
---------------------------------------------------------------------------
This conclusion draws still more support from a closely
related part of the common law. In the late-17th century,
``bribery'' was a relatively new offense, and was understood as
overlapping with the more ancient common law crime of
``extortion.''\208\ ``Extortion,'' in turn, was defined as the
``abuse of public justice, which consists in any officer's
unlawfully taking, by colour of his office, from any man, any
money or thing of value, that is not due to him, or more than
is due, or before it is due.''\209\ Under this definition, both
bribery and extortion occurred when an official used his public
position to obtain private benefits to which he was not
entitled. Conduct which qualified as bribery was therefore
``routinely punished as common law extortion.''\210\ To the
Framers, who would have seen bribery and extortion as virtually
coextensive, when a President acted in his official capacity to
offer, solicit, or accept an improper personal benefit, he
committed ``Bribery.''\211\
---------------------------------------------------------------------------
\208\See James Lindgren, The Elusive Distinction Between Bribery
and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev.
815, 839 (1988).
\209\Blackstone, Commentaries, Vol. 2, Book 4, Ch. 10, Sec. 22
(1771) (citing 1 Hawk. P. C. 170); accord Giles Jacob, A New Law-
Dictionary 102 (1782) (defining ``Extortion'' as ``an unlawful taking
by an officer, &c. by colour of his office, of any money, or valuable
thing, from a person where none at all is due, or not so much is due,
or before it is due'').
\210\Lindgren, The Elusive Distinction, 35 UCLA L. Rev. at 839.
\211\For all the reasons given below in our discussion of the
criminality issue, impeachable ``Bribery'' does not refer to the
meaning of bribery under modern federal criminal statutes. See also
Bowman, High Crimes & Misdemeanors at 243-44; Tribe & Matz, To End A
Presidency at 31-33.
---------------------------------------------------------------------------
Turning to the nature of the improper personal benefit:
because officials can be corrupted in many ways, the benefit at
issue in a bribe can be anything of subjective personal value
to the President. This is not limited to money. Indeed, given
their purposes, it would have made no sense for the Framers to
confine ``Bribery'' to the offer, solicitation, or acceptance
of money, and they expressed no desire to impose that
restriction. To the contrary, in guarding against foreign
efforts to subvert American officials, they confirmed their
broad view of benefits that might cause corruption: a person
who holds ``any Office of Profit or Trust,'' such as the
President, is forbidden from accepting ``any present, Office or
Tile, of any kind whatever, from . . . a foreign State.''\212\
An equally pragmatic (and capacious) view applies to the
impeachable offense of ``Bribery.'' This view is further
anchored in the very same 17th and 18th century common law
treatises that were well known to the Framers. Those
authorities used broad language in defining what qualifies as a
``thing of value'' in the context of bribery: ``any undue
reward'' or any ``valuable consideration.''\213\
---------------------------------------------------------------------------
\212\U.S. Const, art. I, Sec. 9, cl.8.
\213\Hawkins, A Treatise of Pleas to the Crown, ch. 67, Sec. 2
(1716).
---------------------------------------------------------------------------
To summarize, impeachable ``Bribery'' occurs when a
President offers, solicits, or accepts something of personal
value to influence his own official actions. Bribery is thus an
especially egregious and specific example of a President
abusing his power for private gain. As Blackstone explained,
bribery is ``the genius of despotic countries where the true
principles of government are never understood''--and where ``it
is imagined that there is no obligation from the superior to
the inferior, no relative duty owing from the governor to the
governed.''\214\ In our democracy, the Framers understood that
there is no place for Presidents who would abuse their power
and betray the public trust through bribery.
---------------------------------------------------------------------------
\214\Blackstone, Commentaries on the Laws of England, Book 4, ch.
10 ``Of Offenses Against Public Justice'' (1765-1770).
---------------------------------------------------------------------------
Like ``Treason,'' the offense of ``Bribery'' is thus aimed
at a President who is a continuing threat to the Constitution.
Someone who would willingly assist our enemies, or trade public
power for personal favors, is the kind of person likely to
break the rules again if they remain in office. But there is
more: both ``Treason'' and ``Bribery'' are serious offenses
with the capacity to corrupt constitutional governance and harm
the Nation itself; both involve wrongdoing that reveals the
President as a continuing threat if left in power; and both
offenses are ``plainly wrong in themselves to a person of
honor, or to a good citizen, regardless of words on the statute
books.''\215\ Looking to the Constitution's text and history--
including the British, colonial, and early American traditions
discussed earlier--these characteristics also define ``other
high Crimes and Misdemeanors.''
---------------------------------------------------------------------------
\215\Charles L. Black Jr. & Philip Bobbitt, Impeachment: A
Handbook, New Edition 34 (2018).
---------------------------------------------------------------------------
C. ABUSE, BETRAYAL & CORRUPTION
With that understanding in place, the records of the
Constitutional Convention offer even greater clarity. They
demonstrate that the Framers principally intended impeachment
for three forms of Presidential wrongdoing: serious abuse of
power, betrayal of the national interest through foreign
entanglements, and corruption of office and elections. When the
President engages in such misconduct, and does so in ways that
are recognizably wrong and injurious to our political system,
impeachment is warranted. That is proven not only by debates
surrounding adoption of the Constitution, but also by the
historical practice of the House in exercising the impeachment
power.
1. Abuse of Power
As Justice Robert Jackson wisely observed, ``the purpose of
the Constitution was not only to grant power, but to keep it
from getting out of hand.''\216\ Nowhere is that truer than in
the Presidency. As the Framers created a formidable chief
executive, they made clear that impeachment is justified for
serious abuse of power. Edmund Randolph was explicit on this
point. In explaining why the Constitution must authorize
Presidential impeachment, he warned that ``the Executive will
have great opportunitys of abusing his power.''\217\ Madison,
too, stated that impeachment is necessary because the President
``might pervert his administration into a scheme of . . .
oppression.''\218\ This theme echoed through the state
ratifying conventions. Advocating that New York ratify the
Constitution, Hamilton set the standard for impeachment at an
``abuse or violation of some public trust.''\219\ In South
Carolina, Charles Pinckney agreed that Presidents must be
removed who ``behave amiss or betray their public trust.''\220\
In Massachusetts, Reverend Samuel Stillman asked, ``With such a
prospect [of impeachment], who will dare to abuse the powers
vested in him by the people.''\221\ Time and again, Americans
who wrote and ratified the Constitution confirmed that
Presidents may be impeached for abusing the power entrusted to
them.
---------------------------------------------------------------------------
\216\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640
(Jackson, J., concurring).
\217\2 Farrand, Records of the Federal Convention at 67.
\218\Id. at 65-66.
\219\Alexander Hamilton, Federalist No. 65 at 426.
\220\Berger, Impeachment at 94.
\221\2 Elliot, Debates in the Several State Conventions at 169.
---------------------------------------------------------------------------
There are at least as many ways to abuse power as there are
powers vested in the President. It would thus be an exercise in
futility to attempt a list of every conceivable abuse
constituting ``high Crimes and Misdemeanors.'' That said, abuse
of power was no vague notion to the Framers and their
contemporaries. It had a very particular meaning to them.
Impeachable abuse of power can take two basic forms: (1) the
exercise of official power in a way that, on its very face,
grossly exceeds the President's constitutional authority or
violates legal limits on that authority; and (2) the exercise
of official power to obtain an improper personal benefit, while
ignoring or injuring the national interest. In other words, the
President may commit an impeachable abuse of power in two
different ways: by engaging in forbidden acts, or by engaging
in potentially permissible acts but for forbidden reasons
(e.g., with the corrupt motive of obtaining a personal
political benefit).
The first category involves conduct that is inherently and
sharply inconsistent with the law--and that amounts to claims
of monarchical prerogative. The generation that rebelled
against King George III knew what absolute power looked like.
The Framers had other ideas when they organized our government,
and so they placed the chief executive within the bounds of
law. That means the President may exercise only the powers
expressly or impliedly vested in him by the Constitution, and
he must also respect legal limits on the exercise of those
powers (including the rights of Americans citizens). A
President who refuses to abide these restrictions, thereby
causing injury to society itself and engaging in recognizably
wrongful conduct, may be subjected to impeachment for abuse of
power.
That principle also covers conduct grossly inconsistent
with and subversive of the separation of powers. The Framers
knew that ``[t]he accumulation of all powers, legislative,
executive, and judiciary, in the same hands, . . . may justly
be pronounced the very definition of tyranny.''\222\ To protect
liberty, they wrote a Constitution that creates a system of
checks and balances within the federal government. Some of
those rules are expressly enumerated in our founding charter;
others are implied from its structure or from the history of
inter-branch relations.\223\ When a President wields executive
power in ways that usurp and destroy the prerogatives of
Congress or the Judiciary, he exceeds the scope of his
constitutional authority and violates limits on permissible
conduct. Such abuses of power are therefore impeachable. That
conclusion is further supported by the British origins of the
phrase ``high Crimes and Misdemeanors'': Parliament repeatedly
impeached ministers for ``subvert[ing] its conception of proper
constitutional order in favor of the `arbitrary and tyrannical'
government of ambitious monarchs and their grasping
minions.''\224\
---------------------------------------------------------------------------
\222\James Madison, Federalist No. 47 at 336.
\223\See generally National Labor Relations Board v. Noel Canning,
et al., 573 U.S. 513 (2014).
\224\Bowman, High Crimes and Misdemeanors at 109.
---------------------------------------------------------------------------
The Supreme Court advanced similar logic in Ex Parte
Grossman, which held the President can pardon officials who
defy judicial orders and are held in criminal contempt of
court.\225\ This holding raised an obvious concern: what if the
President used ``successive pardons''' to ``deprive a court of
power to enforce its orders''?\226\ That could fatally weaken
the Judiciary's role under Article III of the Constitution. On
behalf of a unanimous Court, Chief Justice William Howard
Taft--who had previously served as President--explained that
``exceptional cases like this would suggest a resort to
impeachment.''\227\
---------------------------------------------------------------------------
\225\Ex Parte Grossman, 267 U.S. 87 (1925).
\226\Id. at 121.
\227\Id.
---------------------------------------------------------------------------
Two impeachment inquiries have involved claims that a
President grossly violated the Constitution's separation of
powers. The first was in 1868, when the House impeached
President Andrew Johnson, who had succeeded President Abraham
Lincoln following his assassination at Ford's Theatre. There,
the articles approved by the House charged President Johnson
with conduct forbidden by law: in firing the Secretary of War,
he had allegedly violated the Tenure of Office Act, which
restricted the President's power to remove cabinet members
during the term of the President who had appointed them.\228\
President Johnson was thus accused of a facial abuse of power.
In the Senate, though, he was acquitted by a single vote--
largely because the Tenure of Office Act was viewed by many
Senators as likely unconstitutional (a conclusion later adopted
by the Supreme Court in an opinion by Chief Justice Taft, who
described the Act as ``invalid''\229\).
---------------------------------------------------------------------------
\228\Articles of Impeachment Exhibited By The House Of
Representatives Against Andrew Johnson, President of the United States,
40th Cong. (1868).
\229\Myers v. United States, 272 U.S. 52, 108 (1926).
---------------------------------------------------------------------------
Just over 100 years later, this Committee accused a second
chief executive of abusing his power. In a departure from prior
Presidential practice--and in contravention of Article I of the
Constitution--President Nixon had invoked specious claims of
executive privilege to defy Congressional subpoenas served as
part of an impeachment inquiry. His obstruction centered on
tape recordings, papers, and memoranda relating to the
Watergate break-in and its aftermath. As the House Judiciary
Committee found, he had interposed ``the powers of the
presidency against the lawful subpoenas of the House of
Representatives, thereby assuming to himself functions and
judgments necessary to exercise the sole power of impeachment
vested by the Constitution in the House of
Representatives.''\230\ Put simply, President Nixon purported
to control the exercise of powers that belonged solely to the
House and not to him--including the power of inquiry that is
vital to any Congressional judgments about impeachment. In so
doing, President Nixon injured the constitutional plan:
``Unless the defiance of the Committee's subpoenas under these
circumstances is considered grounds for impeachment, it is
difficult to conceive of any President acknowledging that he
obligated to supply the relevant evidence necessary for
Congress to exercise its constitutional responsibility in an
impeachment proceeding.''\231\ The House Judiciary Committee
therefore approved an article of impeachment against President
Nixon for abuse of power in obstructing the House impeachment
inquiry.
---------------------------------------------------------------------------
\230\Committee Report on Nixon Articles of Impeachment (1974) at
188.
\231\Id. at 213.
---------------------------------------------------------------------------
But that was only part of President Nixon's impeachable
wrongdoing. The House Judiciary Committee also approved two
additional articles of impeachment against him for abuse of
power, one for obstruction of justice and the other for using
Presidential power to target, harass, and surveil his political
opponents. These articles demonstrate the second way in which a
President can abuse power: by acting with improper motives.
This understanding of impeachable abuse of power is rooted
in the Constitution's text, which commands the President to
``faithfully execute'' the law. At minimum, that duty requires
Presidents ``to exercise their power only when it is motivated
in the public interest rather than in their private self-
interest.''\232\ A President can thus be removed for exercising
power with a corrupt purpose, even if his action would
otherwise be permissible. As Iredell explained at the North
Carolina ratifying convention, ``the president would be liable
to impeachments [if] he had . . . acted from some corrupt
motive or other,'' or if he was ``willfully abusing his
trust.''\233\ Madison made a similar point at Virginia's
ratifying convention. There, he observed that the President
could be impeached for abuse of the pardon power if there are
``grounds to believe'' he has used it to ``shelter'' persons
with whom he is connected ``in any suspicious manner.''\234\
Such a pardon would technically be within the President's
authority under Article II of the Constitution, but it would
rank as an impeachable abuse of power because it arose from the
forbidden purpose of obstructing justice. To the Framers, it
was dangerous for officials to exceed their constitutional
power, or to transgress legal limits, but it was equally
dangerous (perhaps more so) for officials to conceal corrupt or
illegitimate objectives behind superficially valid acts.
---------------------------------------------------------------------------
\232\Kent et al., Faithful Execution at 2120, 2179.
\233\1998 Background and History of Impeachment Hearing at 49.
\234\3 Elliott, Debates in the Several State Conventions at 497-98.
---------------------------------------------------------------------------
Again, President Nixon's case is instructive. After
individuals associated with his campaign committee committed
crimes to promote his reelection, he used the full powers of
his office as part of a scheme to obstruct justice. Among many
other wrongful acts, President Nixon dangled pardons to
influence key witnesses, told a senior aide to have the CIA
stop an FBI investigation into Watergate, meddled with Justice
Department immunity decisions, and conveyed secret law
enforcement information to suspects. Even if some of this
conduct was formally within the scope of President Nixon's
authority as head of the Executive Branch, it was undertaken
with illegitimate motives. The House Judiciary Committee
therefore included it within an article of impeachment charging
him with obstruction of justice. Indeed, following President
Nixon's resignation and the discovery of additional evidence
concerning obstruction, all eleven members of the Committee who
had originally voted against that article joined a statement
affirming that ``we were prepared to vote for his impeachment
on proposed Article I had he not resigned his office.''\235\ Of
course, several decades later, obstruction of justice was also
the basis for an article of impeachment against President
Clinton, though his conduct did not involve official acts.\236\
---------------------------------------------------------------------------
\235\ Committee Report on Nixon Articles of Impeachment (1974) at
361.
\236\ In President Clinton's case, the House approved the article
of impeachment for obstruction of justice. There was virtually no
disagreement in those proceedings over whether obstructing justice can
be impeachable; scholars, lawyers, and legislators on all sides of the
dispute recognized that it can be. See Daniel J. Hemel & Eric A.
Posner, Presidential Obstruction of Justice, 106 Cal. L. Rev 1277,
1305-1307 (2018). Publicly available evidence does not suggest that the
Senate's acquittal of President Clinton was based on the view that
obstruction of justice is not impeachable. Rather, Senators who voted
for acquittal appear to have concluded that some of the factual charges
were not supported and that, even if Presidential perjury and
obstruction of justice might in some cases justify removal, the nature
and circumstances of the conduct at issue (including its predominantly
private character) rendered it insufficiently grave to warrant that
remedy.
---------------------------------------------------------------------------
Yet obstruction of justice did not exhaust President
Nixon's corrupt abuse of power. He was also accused of
manipulating federal agencies to injure his opponents, aid his
friends, gain personal political benefits, and violate the
constitutional rights of American citizens. For instance,
President Nixon improperly attempted to cause income tax audits
of his perceived political adversaries; directed the FBI and
Secret Service to engage in targeted (and unlawful)
surveillance; and formed a secret investigative unit within the
White House--financed with campaign contributions--that
utilized CIA resources in its illegal covert activities. In
explaining this additional article of impeachment, the House
Judiciary Committee stated that President Nixon's conduct was
``undertaken for his personal political advantage and not in
furtherance of any valid national policy objective.''\237\ His
abuses of executive power were thus ``seriously incompatible
with our system of constitutional government'' and warranted
removal from office.\238\
---------------------------------------------------------------------------
\237\Committee Report on Nixon Articles of Impeachment (1974) at
139.
\238\Id.
---------------------------------------------------------------------------
With the benefit of hindsight, the House's decision to
impeach President Johnson is best understood in a similar
frame. Scholars now largely agree that President Johnson's
impeachment was motivated not by violations of the Tenure of
Office Act, but on his illegitimate use of power to undermine
Reconstruction and subordinate African-Americans following the
Civil War.\239\ In that period, fundamental questions about the
nature and future of the Union stood unanswered. Congress
therefore passed a series of laws to ``reconstruct the former
Confederate states into political entities in which black
Americans enjoyed constitutional protections.''\240\ This
program, however, faced an unyielding enemy in President
Johnson, who declared that ``white men alone must manage the
south.''\241\ Convinced that political control by African-
Americans would cause a ``relapse into barbarism,'' President
Johnson vetoed civil rights laws; when Congress overrode him,
he refused to enforce those laws.\242\ The results were
disastrous. As Annette Gordon-Reed writes, ``it would be
impossible to exaggerate how devastating it was to have a man
who affirmatively hated black people in charge of the program
that was designed to settle the terms of their existence in
post-Civil War America.''\243\ Congress tried to compromise
with the President, but to no avail. A majority of the House
finally determined that President Johnson posed a clear and
present danger to the Nation if allowed to remain in office.
---------------------------------------------------------------------------
\239\See generally Michael Les Benedict, The Impeachment and Trial
of Andrew Johnson (1999).
\240\Jeffrey A. Engel, Jon Meacham, Timothy Naftali, & Peter Baker,
Impeachment: An American History 48 (2018).
\241\Id. at 49.
\242\Id.
\243\See Annette Gordon-Reed, Andrew Johnson: The American
Presidents Series: the 17th President, 1865-1869 12 (2011).
---------------------------------------------------------------------------
Rather than directly target President Johnson's faithless
execution of the laws, and his illegitimate motives in wielding
power, the House resorted to charges based on the Tenure of
Office Act. But in reality, ``the shaky claims prosecuted by
[the House] obscured a far more compelling basis for removal:
that Johnson's virulent use of executive power to sabotage
Reconstruction posed a mortal threat to the nation--and to
civil and political rights--as reconstituted after the Civil
War . . . [T]he country was in the throes of a second founding.
Yet Johnson abused the powers of his office and violated the
Constitution to preserve institutions and practices that had
nearly killed the Union. He could not be allowed to salt the
earth as the Republic made itself anew.''\244\ Viewed from that
perspective, the case for impeaching President Johnson rested
on his use of power with illegitimate motives.
---------------------------------------------------------------------------
\244\Tribe & Matzo, To End a Presidency at 55.
---------------------------------------------------------------------------
Pulling this all together, the Framers repeatedly confirmed
that Presidents can be impeached for grave abuse of power.
Where the President engages in acts forbidden by law, or acts
with an improper motive, he has committed an abuse of power
under the Constitution. Where those abuses inflict substantial
harm on our political system and are recognizably wrong, they
warrant his impeachment and removal.\245\
---------------------------------------------------------------------------
\245\In President Clinton's case, it was debated whether Presidents
can be impeached for acts that do not involve their official powers.
See Staff Report on Constitutional Grounds for Presidential
Impeachment: Modern Precedents (1998) at 6-7; Minority Staff of H.
Comm. on the Judiciary, 105th Cong., Constitutional Grounds for
Presidential Impeachment: Modern Precedents Minority Views 3-4, 8-9,
13-16 (Comm. Print 1998). Many scholars have taken the view that such
private conduct may be impeachable in extraordinary circumstances, such
as where it renders the President unviable as the leader of a
democratic nation committed to the rule of law. See, e.g., Tribe &
Matzo, To End A Presidency at 10, 51; Black & Babbitt, Impeachment at
35. It also bears mention that some authority supports the view that
Presidents might be subject to impeachment not for abusing their
official powers, but by failing to use them and thus engaging in gross
dereliction of official duty. See, e.g., Tribe & Matzo, To End A
Presidency at 50; Akhil Reed Amar, America's Constitution: A Biography
200 (2006); Black & Babbitt, Impeachment at 34.
---------------------------------------------------------------------------
2. Betrayal of the National Interest Through Foreign Entanglements
It is not a coincidence that the Framers started with
``Treason'' in defining impeachable offenses. Betrayal was no
abstraction to them. They had recently waged a war for
independence in which some of their fellow citizens remained
loyal to the enemy. The infamous traitor, Benedict Arnold, had
defected to Britain less than a decade earlier. As they looked
outward, the Framers saw kings scheming for power, promising
fabulous wealth to spies and deserters. The United States could
be enmeshed in such conspiracies: ``Foreign powers,'' warned
Elbridge Gerry, ``will intermeddle in our affairs, and spare no
expense to influence them.''\246\ The young Republic might not
survive a President who schemed with other nations, entangling
himself in secret deals that harmed our democracy.
---------------------------------------------------------------------------
\246\Wydra & Gorod, The First Magistrate in Foreign Pay.
---------------------------------------------------------------------------
That reality loomed over the impeachment debate in
Philadelphia. Explaining why the Constitution required an
impeachment option, Madison argued that a President ``might
betray his trust to foreign powers.''\247\Gouverneur Morris,
who had initially opposed allowing impeachment, was convinced:
``no one would say that we ought to expose ourselves to the
danger of seeing the first Magistrate in foreign pay, without
being able to guard against it by displacing him.''\248\ In the
same vein, Franklin noted ``the case of the Prince of Orange
during the late war,'' in which a Dutch prince reneged on a
military treaty with France.\249\ Because there was no
impeachment power or other method of inquiry, the prince's
motives were secret and untested, drastically destabilizing
Dutch politics and giving ``birth to the most violent
animosities and contentions.''\250\
---------------------------------------------------------------------------
\247\2 Farrand, Records of the Federal Convention at 65.
\248\Id. at 68.
\249\Id. at 67-68.
\250\Id.
---------------------------------------------------------------------------
Impeachment for betrayal of the Nation's interest--and
especially for betrayal of national security and foreign
policy--was hardly exotic to the Framers. ``The history of
impeachment over the centuries shows an abiding awareness of
how vulnerable the practice of foreign policy is to the
misconduct of its makers.''\251\ Indeed, ``impeachments on this
ground were a constant of parliamentary practice,'' and ``a
string of British ministers and royal advisors were impeached
for using their official powers contrary to the country's vital
foreign interests.''\252\ Although the Framers did not intend
impeachment for genuine, good faith disagreements between the
President and Congress over matters of diplomacy, they were
explicit that betrayal of the Nation through plots with foreign
powers justified removal.
---------------------------------------------------------------------------
\251\Frank O. Bowman, III, Foreign Policy Has Always Been at the
Heart of Impeachment, Foreign Affairs (Nov. 2019).
\252\Bowman, High Crimes & Misdemeanors at 48, 106.
---------------------------------------------------------------------------
In particular, foreign interference in the American
political system was among the gravest dangers feared by the
Founders of our Nation and the Framers of our Constitution. For
example, in a letter to Thomas Jefferson, John Adams wrote:
``You are apprehensive of foreign Interference, Intrigue,
Influence. So am I.--But, as often as Elections happen, the
danger of foreign Influence recurs.''\253\ And in Federalist
No. 68, Hamilton cautioned that the ``most deadly adversaries
of republican government'' may come ``chiefly from the desire
in foreign powers to gain an improper ascendant in our
councils.\254\
---------------------------------------------------------------------------
\253\To Thomas Jefferson from John Adams, 6 December 1787, Founders
Online, National Archives.
\254\Alexander Hamilton, Federalist No. 68 at 441.
---------------------------------------------------------------------------
The President's important role in foreign affairs does not
disable the House from evaluating whether he committed
impeachable offenses in that field. This conclusion follows
from the Impeachment Clause itself but is also supported by the
Constitution's many grants of power to Congress addressing
foreign affairs. Congress is empowered to ``declare War,''
``regulate Commerce with foreign Nations,'' ``establish an
uniform Rule of Naturalization,'' ``define and punish Piracies
and Felonies committed on the high Seas, and Offences against
the Law of Nations,'' ``grant Letters of Marque and Reprisal,''
and ``make Rules for the Government and Regulation of the land
and naval Forces.''\255\ Congress also has the power to set
policy, define law, undertake oversight and investigations,
create executive departments, and authorize government funding
for a slew of national security matters.\256\ In addition, the
President cannot make a treaty or appoint an ambassador without
the approval of the Senate.\257\ In those respects and many
others, constitutional authority over the ``conduct of the
foreign relations of our Government'' is shared between ``the
Executive and Legislative [branches].''\258\ Stated simply,
``the Executive is not free from the ordinary controls and
checks of Congress merely because foreign affairs are at
issue.''\259\ In these realms, as in many others, the
Constitution ``enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.''\260\
---------------------------------------------------------------------------
\255\U.S. Const., art. I, Sec. 8.
\256\See Lawrence Friedman & Victor Hansen, There Is No
Constitutional Impediment to an Impeachment Inquiry that Concerns
National Security, Just Security, Oct. 1, 2019.
\257\U.S. Const., art. II, Sec. 2, cl. 2.
\258\Medellin v. Texas, 552 U.S. 491, 511 (2008).
\259\Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015).
\260\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635
(1952) (Jackson, J., concurring).
---------------------------------------------------------------------------
Accordingly, where the President uses his foreign affairs
power in ways that betray the national interest for his own
benefit, or harm national security for equally corrupt reasons,
he is subject to impeachment by the House. Any claims to the
contrary would horrify the Framers. A President who perverts
his role as chief diplomat to serve private rather than public
ends has unquestionably engaged in ``high Crimes and
Misdemeanors''--especially if he invited, rather than opposed,
foreign interference in our politics.
3. Corruption of Office or Elections
As should now be clear, the Framers feared corruption most
of all, in its many and shifting manifestations. It was
corruption that led to abuse of power and betrayal of the
Nation. It was corruption that ruined empires, debased Britain,
and menaced American freedom. The Framers saw no shortage of
threats to the Republic, and fought valiantly to guard against
them, ``but the big fear underlying all the small fears was
whether they'd be able to control corruption.''\261\ This was
not just a matter of thwarting bribes and extortion; it was a
far greater challenge. The Framers aimed to build a country in
which officials would not use public power for personal
benefits, disregarding the public good in pursuit of their own
advancement. This virtuous principle applied with special force
to the Presidency. As Madison emphasized, because the
Presidency ``was to be administered by a single man,'' his
corruption ``might be fatal to the Republic.''\262\
---------------------------------------------------------------------------
\261\Teachout, Corruption in America at 57.
\262\Jonathan Elliot ed., Debates on the Adoption of the Federal
Constitution in the Convention Held at Philadelphia, in 1787 341 (1861)
(hereinafter ``Debates on the Adoption of the Federal Constitution'').
---------------------------------------------------------------------------
The Framers therefore sought to ensure that ``corruption
was more effectually guarded against, in the manner this
government was constituted, than in any other that had ever
been formed.''\263\ Impeachment was central to that plan. At
one point the Convention even provisionally adopted ``treason,
bribery, or corruption'' as the standard for impeaching a
President. And no fewer than four delegates--Morris, Madison,
Mason, and Randolph--listed corruption as a reason why
Presidents must be subject to removal. That understanding
followed from history: ``One invariable theme in [centuries] of
Anglo-American impeachment practice has been corruption.''\264\
Treason posed a threat of swift national extinction, but the
steady rot of corruption could destroy us from within.
Presidents who succumbed to that instinct, serving themselves
at the Nation's expense, forfeited the public trust.
---------------------------------------------------------------------------
\263\4 Elliot, Debates in the Several State Conventions at 302.
\264\Bowman, High Crimes & Misdemeanors at 277.
---------------------------------------------------------------------------
Impeachment was seen as especially necessary for
Presidential conduct corrupting our system of political self-
government. That concern arose in two contexts: the risk that
Presidents would be swayed to prioritize foreign over domestic
interests, and the risk that they would place their personal
interest in re-election above our abiding commitment to
democracy. The need for impeachment peaks where both threats
converge at once.
First was the risk that foreign royals would use wealth,
power, and titles to seduce American officials. This was not a
hypothetical problem. Just a few years earlier, and consistent
with European custom, King Louis XVI of France had bestowed on
Benjamin Franklin (in his capacity as American emissary) a
snuff box decorated with 408 diamonds ``of a beautiful
water.''\265\ Magnificent gifts like this one could
unconsciously shape how American officials carried out their
duties. To guard against that peril, the Framers adopted the
Foreign Emoluments Clause, which prohibits Presidents--among
other federal officials--from accepting ``any present,
Emolument, Office, or Title, of any kind whatever, from any
King, Prince, or foreign State'' unless Congress affirmatively
consents.\266\
---------------------------------------------------------------------------
\265\Teachout, Corruption in America at 1.
\266\U.S. Const., art. I, Sec. 9, cl. 8.
---------------------------------------------------------------------------
The theory of the Foreign Emoluments Clause, based in
history and the Framers' lived experience, ``is that a federal
officeholder who receives something of value from a foreign
power can be imperceptibly induced to compromise what the
Constitution insists be his exclusive loyalty: the best
interest of the United States of America.''\267\ Rather than
scrutinize every exchange for potential bribery, the Framers
simply banned officials from receiving anything of value from
foreign powers. Although this rule sweeps broadly, the Framers
deemed it central to American self-governance. Speaking in
Philadelphia, Charles Pinckney ``urged the necessity of
preserving foreign ministers, and other officers of the United
States, independent of external influence.''\268\ At Virginia's
convention, Randolph elaborated that ``[i]t was thought proper,
in order to exclude corruption and foreign influence, to
prohibit any one in office from receiving or holding any
emoluments from foreign states.''\269\ Randolph added that if
the President violated the Clause, ``he may be
impeached.''\270\
---------------------------------------------------------------------------
\267\Norman L. Eisen, Richard Painter & Laurence H. Tribe, The
Emoluments Clause: Its Text, Meaning, And Application To Donald J.
Trump, Brookings, Dec. 16, 2016.
\268\Elliot, Debates on the Adoption of the Federal Constitution at
467.
\269\3 Elliot, Debates in the Several State Conventions at 465.
\270\Id. at 201.
---------------------------------------------------------------------------
The Framers also anticipated impeachment if a President
placed his own interest in retaining power above the national
interest in free and fair elections. Several delegates were
explicit on this point when the topic arose at the
Constitutional Convention. By then, the Framers had created the
Electoral College. They were ``satisfied with it as a tool for
picking presidents but feared that individual electors might be
intimidated or corrupted.''\271\ Impeachment was their answer.
William Davie led off the discussion, warning that a President
who abused his office might seek to escape accountability by
interfering with elections, sparing ``no efforts or means
whatever to get himself re-elected.''\272\ Rendering the
President ``impeachable whilst in office'' was thus ``an
essential security for the good behaviour of the
Executive.''\273\ The Constitution thereby ensured that corrupt
Presidents could not avoid justice by subverting elections and
remaining in office.
---------------------------------------------------------------------------
\271\Tribe & Matz, To End A Presidency at 4.
\272\2 Farrand, Records of the Federal Convention at 64.
\273\Id.
---------------------------------------------------------------------------
George Mason built on Davie's position, directing attention
to the Electoral College: ``One objection agst. Electors was
the danger of their being corrupted by the Candidates; & this
furnished a peculiar reason in favor of impeachments whilst in
office. Shall the man who has practised corruption & by that
means procured his appointment in the first instance, be
suffered to escape punishment, by repeating his guilt?''\274\
Mason's concern was straightforward. He feared that Presidents
would win election by improperly influencing members of the
Electoral College (e.g., by offering them bribes). If evidence
of such wrongdoing came to light, it would be unthinkable to
leave the President in office--especially given that he might
seek to avoid punishment by corrupting the next election. In
that circumstance, Mason concluded, the President should face
impeachment and removal under the Constitution. Notably, Mason
was not alone in this view. Speaking just a short while later,
Gouverneur Morris emphatically agreed that ``the Executive
ought therefore to be impeachable for . . . Corrupting his
electors.''\275\ Although not articulated expressly, it is
reasonable to infer that the concerns raised by Davie, Mason,
and Morris were especially salient because the Constitution--
until ratification of the Twenty-Second Amendment in 1951--did
not limit the number of terms a President could serve in
office.\276\ A President who twisted or sabotaged the electoral
process could rule for life, much like a king.
---------------------------------------------------------------------------
\274\Id. at 65.
\275\Id. at 69.
\276\U.S. Const. Amend. XXII.
---------------------------------------------------------------------------
This commitment to impeaching Presidents who corruptly
interfered with elections was anchored in lessons from British
rule. As historian Gordon Wood writes, ``[t]hroughout the
eighteenth century the Crown had slyly avoided the blunt and
clumsy instrument of prerogative, and instead had resorted to
influencing the electoral process and the representatives in
Parliament in order to gain its treacherous ends.''\277\ In his
influential Second Treatise on Civil Government, John Locke
blasted such manipulation, warning that it serves to ``cut up
the government by the roots, and poison the very fountain of
public security.''\278\ Channeling Locke, American
revolutionaries vehemently objected to King George III's
electoral shenanigans; ultimately, they listed several
election-related charges in the Declaration of Independence.
Those who wrote our Constitution knew, and feared, that the
chief executive could threaten their plan of government by
corrupting elections.
---------------------------------------------------------------------------
\277\Wood, The Creation of the American Republic at 33.
\278\John Locke, Second Treatise of Government 112 (C.B. Macpherson
ed. 1980).
---------------------------------------------------------------------------
The true nature of this threat is its rejection of
government by ``We the People,'' who would ``ordain and
establish'' the Constitution.\279\ The beating heart of the
Framers' project was a commitment to popular sovereignty. At a
time when ``democratic self-government existed almost nowhere
on earth,''\280\ the Framers imagined a society ``where the
true principles of representation are understood and practised,
and where all authority flows from, and returns at stated
periods to, the people.''\281\ That would be possible only if
``those entrusted with [power] should be kept in dependence on
the people.''\282\ This is why the President, and Members of
Congress, must stand before the public for re-election on fixed
terms. It is through free and fair elections that the American
people protect their right to self-government, a right
unforgivably denied to many as the Constitution was ratified in
1788 but now extended to all American citizens over the age of
18. When the President concludes that elections threaten his
continued grasp on power, and therefore seeks to corrupt or
interfere with them, he denies the very premise of our
constitutional system. The American people choose their
leaders; a President who wields power to destroy opponents or
manipulate elections is a President who rejects democracy
itself.
---------------------------------------------------------------------------
\279\U.S. Const. Pmbl.
\280\Amar, America's Constitution at 8.
\281\4 Elliot, Debates in the Several State Conventions at 331; see
also James Madison, Federalist No. 14.
\282\James Madison, Federalist No. 37 at 268.
---------------------------------------------------------------------------
In sum, the Framers discussed the risk that Presidents
would improperly conspire with foreign nations; they also
discussed the risk that Presidents would place their interest
in retaining power above the integrity of our elections. Both
offenses, in their view, called for impeachment. That is doubly
true where a President conspires with a foreign power to
manipulate elections to his benefit--conduct that betrays
American self-governance and joins the Framers' worst
nightmares into a single impeachable offense.\283\
---------------------------------------------------------------------------
\283\In fact, the Framers were so concerned about improper foreign
influence in the Presidency that they restricted that position to
natural born citizens. U.S. Const. art. II, Sec. 1. As one commentator
observed, ``Considering the greatness of the trust, and that this
department is the ultimately efficient power in government, these
restrictions will not appear altogether useless or unimportant. As the
President is required to be a native citizen of the United States,
ambitious foreigners cannot intrigue for the office, and the
qualification of birth cuts off all those inducements from abroad to
corruption, negotiation, and war, which have frequently and fatally
harassed the elective monarchies of Germany and Poland, as well as the
pontificate at Rome.'' 1 James Kent, Commentaries on American Law 255
(1826).
---------------------------------------------------------------------------
D. CONCLUSION
Writing in 1833, Justice Joseph Story remarked that
impeachable offenses ``are of so various and complex a
character'' that it would be ``almost absurd'' to attempt a
comprehensive list.\284\ Consistent with Justice Story's
wisdom, ``the House has never, in any impeachment inquiry or
proceeding, adopted either a comprehensive definition of `high
Crimes and Misdemeanors' or a catalog of offenses that are
impeachable.''\285\ Rather than engage in abstract, advisory or
hypothetical debates about the precise nature of conduct that
calls for the exercise of its constitutional powers, the House
has awaited a ``full development of the facts.''\286\ Only then
has it weighed articles of impeachment.
---------------------------------------------------------------------------
\284\2 Story, Commentaries at 264.
\285\1998 Background and History of Impeachment Hearing at 2.
\286\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 2.
---------------------------------------------------------------------------
In making such judgments, however, each Member of the House
has sworn an oath to follow the Constitution, which sets forth
a legal standard governing when Presidential conduct warrants
impeachment. That standard has three main parts.
First, as Mason explained just before proposing ``high
Crimes and Misdemeanors'' as the basis for impeachment, the
President's conduct must constitute a ``great and dangerous
offense'' against the Nation. The Constitution itself offers us
two examples: ``Treason'' and ``Bribery.'' In identifying
``other'' offenses of the same kind, we are guided by
Parliamentary and early American practice, records from the
Constitutional Convention and state ratifying conventions, and
insights from the Constitution's text and structure. These
sources prove that ``high Crimes and Misdemeanors'' involve
misconduct that subverts and injures constitutional governance.
Core instances of such misconduct by the President are serious
abuse of power, betrayal of the national interest through
foreign entanglements, and corruption of office and elections.
The Framers included an impeachment power in the Constitution
specifically to protect the Nation against these forms of
wrongdoing.
Past practice of the House further illuminates the idea of
a ``great and dangerous offense.'' President Nixon's case is
most helpful. There, as explained above, the House Judiciary
Committee approved articles of impeachment on three grounds:
(1) obstruction of an ongoing law enforcement investigation
into unlawful acts by his presidential re-election campaign;
(2) abuse of power in targeting his perceived political
opponents; and (3) improper obstruction of a Congressional
impeachment inquiry into his obstruction of justice and abuse
of power. These articles of impeachment, moreover, were not
confined to discrete acts. Each of them accused President Nixon
of undertaking a course of conduct or scheme, and each of them
supported that accusation with a list of discrete acts alleged
to comprise and demonstrate the overarching impeachable
offense.\287\ Thus, where a President engages in a course of
conduct involving serious abuse of power, betrayal of the
national interest through foreign entanglements, or corruption
of office and elections, impeachment is justified.
---------------------------------------------------------------------------
\287\Consistent with that understanding, one scholar remarks that
it is the ``repetition, pattern, [and] coherence'' of official
misconduct that ``tend to establish the requisite degree of seriousness
warranting the removal of a president from office.'' John Labovitz,
Presidential Impeachment 129-130 (1978); see also, e.g., McGinnis,
Impeachment at 659 (``[I]t has been well understood that the official's
course of conduct as a whole should be the subject of judgment.'');
Debate On Articles Of Impeachment: Hearing before the H. Comm. On the
Judiciary, 93rd Cong. (1974) (hereinafter ``Debate on Nixon Articles of
Impeachment (1974)'') (addressing the issue repeatedly from July 24,
1974 to July 30, 1974).
---------------------------------------------------------------------------
Second, impeachable offenses involve wrongdoing that reveal
the President as a continuing threat to the constitutional
system if he is allowed to remain in a position of political
power. As Iredell remarked, impeachment does not exist for a
``mistake.''\288\ That is why the Framers rejected
``maladministration'' as a basis for impeachment, and it is why
``high Crimes and Misdemeanors'' are not simply unwise,
unpopular, or unconsidered acts. Like ``Treason'' and
``Bribery,'' they reflect decisions by the President to embark
on a course of conduct--or to act with motives--inconsistent
with our plan of government. Where the President makes such a
decision, Congress may remove him to protect the Constitution,
especially if there is reason to think that he will commit
additional offenses if left in office (e.g., statements by the
President that he did nothing wrong and would do it all again).
This forward-looking perspective follows from the limited
consequences of impeachment. The question is not whether to
punish the President; that decision is left to the criminal
justice system. Instead, the ultimate question is whether to
bring an early end to his four-year electoral term. In his
analysis of the Constitution, Alexis de Tocqueville thus saw
impeachment as ``a preventive measure'' which exists ``to
deprive the ill-disposed citizen of an authority which he has
used amiss, and to prevent him from ever acquiring it
again.''\289\ That is particularly true when the President
injures the Nation's interests as part of a scheme to obtain
personal benefits; someone so corrupt will again act corruptly.
---------------------------------------------------------------------------
\288\Sunstein, Impeachment at 59.
\289\Alexis de Tocqueville, Democracy in America and Two Essays on
America 124-30 (2003).
---------------------------------------------------------------------------
Finally, ``high Crimes and Misdemeanors'' involve conduct
that is recognizably wrong to a reasonable person. This
principle resolves a potential tension in the Constitution. On
the one hand, the Framers adopted a standard for impeachment
that could stand the test of time. On the other hand, the
structure of the Constitution--including its prohibition on
bills of attainder and the Ex Post Facto Clause--implies that
impeachable offenses should not come as a surprise.\290\
Impeachment is aimed at Presidents who believe they are above
the law, and who believe their own interests transcend those of
the country and Constitution. Of course, as President Nixon
proved, Presidents who have committed impeachable offenses may
seek to confuse the public through manufactured ambiguity and
crafty pretexts. That does not shield their misconduct from
impeachment. The principle of a plainly wrong act is not about
academic technicalities; it simply focuses impeachment on
conduct that any person of honor would recognize as wrong under
the Constitution.
---------------------------------------------------------------------------
\290\See Black & Bobbitt, Impeachment at 29-30.
---------------------------------------------------------------------------
To summarize: Like ``Treason'' and ``Bribery,'' and
consistent with the offenses historically considered by
Parliament to warrant impeachment, ``high Crimes and
Misdemeanors'' are great and dangerous offenses that injure the
constitutional system. Such offenses are defined mainly by
abuse of power, betrayal of the national interest through
foreign entanglements, and corruption of office and elections.
In addition, impeachable offenses arise from wrongdoing that
reveals the President as a continuing threat to the
constitutional system if allowed to remain in a position of
power. Finally, they involve conduct that reasonable officials
would consider to be wrong in our democracy.
Within these parameters, and guided by fidelity to the
Constitution, the House must judge whether the President's
misconduct is grave enough to require impeachment. That step
must never be taken lightly. It is a momentous act, justified
only when the President's full course of conduct, assessed
without favor or prejudice, is ``seriously incompatible with
either the constitutional form and principles of our government
or the proper performance of constitutional duties of the
presidential office.''\291\ When that standard is met, however,
the Constitution calls the House to action. In such cases, a
decision not to impeach has grave consequences and sets an
ominous precedent. As Representative William Cohen remarked in
President Nixon's case, ``It also has been said to me that even
if Mr. Nixon did commit these offenses, every other President .
. . has engaged in some of the same conduct, at least to some
degree, but the answer I think is that democracy, that solid
rock of our system, may be eroded away by degree and its
survival will be determined by the degree to which we will
tolerate those silent and subtle subversions that absorb it
slowly into the rule of a few.''\292\
---------------------------------------------------------------------------
\291\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 27.
\292\Debate on Nixon Articles of Impeachment (1974) at 79.
---------------------------------------------------------------------------
V. The Criminality Issue
It is occasionally suggested that Presidents can be
impeached only if they have committed crimes. That position was
rejected in President Nixon's case, and then rejected again in
President Clinton's, and should be rejected once more.\293\
---------------------------------------------------------------------------
\293\Impeachment of William J. Clinton, President of the United
States: Report of the H. Comm. on the Judiciary, H. Rep. No. 105-830 at
64 (1998) (hereinafter ``Committee Report on Clinton Articles of
Impeachment (1998)'') Committee Report on Clinton Articles of
Impeachment (1998) at 64 (``Although, the actions of President Clinton
do not have to rise to the level of violating the federal statute
regarding obstruction of justice in order to justify impeachment.'');
Staff Report on Constitutional Grounds for Presidential Impeachment
(1974) at 22-26.
---------------------------------------------------------------------------
Offenses against the Constitution are different in kind
than offenses against the criminal code. Some crimes, like
jaywalking, are not impeachable. Some impeachable offenses,
like abuse of power, are not crimes. Some misconduct may offend
both the Constitution and the criminal law. Impeachment and
criminality must therefore be assessed separately--even though
the commission of crimes may strengthen a case for removal.
A ``great preponderance of authority'' confirms that
impeachable offenses are ``not confined to criminal
conduct.''\294\ This authority includes nearly every legal
scholar to have studied the issue, as well as multiple Supreme
Court justices who addressed it in public remarks.\295\ More
important, the House itself has long treated ``high Crimes and
Misdemeanors'' as distinct from crimes subject to indictment.
That understanding follows from the Constitution's history,
text, and structure, and reflects the absurdities and practical
difficulties that would result were the impeachment power
confined to indictable crimes.
---------------------------------------------------------------------------
\294\Berger, Impeachment at 58.
\295\See, e.g., Black & Bobbitt, Impeachment at 33-37, 559-565;
Bowman, High Crimes and Misdemeanors at 244-252; Tribe & Matz, To End A
Presidency at 43-53; Sunstein, Impeachment at 117-134; Amar, America's
Constitution at 200-20; Charles J. Cooper, A Perjurer in the White
House?: The Constitutional Case for Perjury and Obstruction of Justice
as High Crimes and Misdemeanors, 22 Harv. J. L. & Pub. Pol'y 619, 620
(1998-1999); Michael J. Gerhardt, The Federal Impeachment Process: A
Constitutional and Historical Analysis 105-113 (2019); Berger,
Impeachment at 58 (collecting sources); Merrill Otis, A Proposed
Tribunal: Is It Constitutional?, 7 Kan. City. L. Rev. 3, 22 (1938)
(quoting Chief Justice Taft); Charles E. Hughes, The Supreme Court of
the United States 19 (1928); 2 Henry Adams, History of the United
States of America 223 (1962).
---------------------------------------------------------------------------
A. HISTORY
``If there is one point established by . . . Anglo-American
impeachment practice, it is that the phrase `high Crimes and
Misdemeanors'' is not limited to indictable crimes.''\296\ As
recounted above, impeachment was conceived in Parliament as a
method for controlling abusive royal ministers. Consistent with
that purpose, it was not confined to accusations of criminal
wrongdoing. Instead, it was applied to ``many offenses, not
easily definable by law,'' such as abuse of power, betrayal of
national security, corruption, neglect of duty, and violating
Parliament's constitutional prerogatives.\297\ Many officials
were impeached for non-criminal wrongs against the British
system of government; notable examples include the Duke of
Buckingham (1626), the Earl of Strafford (1640), the Lord Mayor
of London (1642), the Earl of Orford and others (1701), and
Governor General Warren Hastings (1787).\298\ Across centuries
of use, the phrase ``high Crimes and Misdemeanors'' thus
assumed a ``special historical meaning different from the
ordinary meaning of the terms `crimes' and
`misdemeanors.'''\299\ It became a term of art confined to
impeachments, without ``relation to whether an indictment would
lie in the particular circumstances.''\300\
---------------------------------------------------------------------------
\296\Bowman, High Crimes and Misdemeanors at 44.
\297\2 Story, Commentaries at 268.
\298\See Bowman, High Crimes and Misdemeanors at 44-47.
\299\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 22.
\300\Berger, Impeachment at 62.
---------------------------------------------------------------------------
That understanding extended to North America. Here, the
impeachment process was used to address diverse misconduct by
public officials, ranging from abuse of power and corruption to
bribery and betrayal of the revolutionary cause.\301\ As one
scholar reports, ``American colonists before the Revolution,
and American states after the Revolution but before 1787, all
impeached officials for non-criminal conduct.''\302\
---------------------------------------------------------------------------
\301\Hoffer & Hull, Impeachment in America at 1-95.
\302\Bowman, High Crimes and Misdemeanors at 244.
---------------------------------------------------------------------------
At the Constitutional Convention itself, no delegate linked
impeachment to the technicalities of criminal law. On the
contrary, the Framers invoked an array of broad, adaptable
terms as grounds for removal--and when the standard was
temporarily narrowed to ``treason, or bribery,'' Mason objected
that it must reach ``great and dangerous'' offenses against the
Constitution. Here he cited Burke's call to impeach Hastings,
whose acts were not crimes, but instead violated ``those
eternal laws of justice, which are our rule and our
birthright.''\303\ To the Framers, impeachment was about abuse
of power, betrayal of nation, and corruption of office and
elections. It was meant to guard against these threats in every
manifestation--known and unknown--that might someday afflict
the Republic.
---------------------------------------------------------------------------
\303\Edmund Burke, Reflections on the Revolution in France and
Other Writings 409 (2015).
---------------------------------------------------------------------------
That view appeared repeatedly in the state ratifying
debates. Delegates opined that the President could be impeached
if he ``deviates from his duty'' or ``dare[s] to abuse the
power vested in him by the people.''\304\ In North Carolina,
Iredell noted that ``the person convicted [in an impeachment
proceeding] is further liable to a trial at common law, and may
receive such common-law punishment . . . if it be punishable by
that law'' (emphasis added).\305\ Similarly, in Virginia,
George Nicholas declared that the President ``will be
absolutely disqualified [by impeachment] to hold any place of
profit, honor, or trust, and liable to further punishment if he
has committed such high crimes as are punishable at common
law'' (emphasis added).\306\ The premise underlying this
statement--and Iredell's--is that some Presidential ``high
Crimes and Misdemeanors'' were not punishable by common law.
---------------------------------------------------------------------------
\304\Quoted in Michael J. Gerhardt, Impeachment: What Everyone
Needs to Know 60 (2018).
\305\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 23.
\306\Id.
---------------------------------------------------------------------------
Leading minds echoed that position through the Nation's
early years. In Federalist No. 65, Hamilton argued that
impeachable offenses are defined by ``the abuse or violation of
some public trust.''\307\ In that sense, he reasoned, ``they
are of a nature which may with peculiar propriety be
denominated POLITICAL, as they relate chiefly to injuries done
immediately to the society itself.''\308\ A few years later,
Constitutional Convention delegate James Wilson reiterated
Hamilton's point: ``Impeachments, and offences and offenders
impeachable, come not . . . within the sphere of ordinary
jurisprudence. They are founded on different principles, are
governed by different maxims, and are directed to different
objects.''\309\ Writing in 1829, William Rawle described
impeachment as reserved for ``men whose treachery to their
country might be productive of the most serious
disasters.''\310\ Four years later, Justice Story emphasized
that impeachable offenses ordinarily ``must be examined upon
very broad and comprehensive principles of public policy and
duty.''\311\
---------------------------------------------------------------------------
\307\Alexander Hamilton, Federalist No. 65 at 426.
\308\Id.
\309\James Wilson, Collected Works of James Wilson 736 (Kermit L.
Hall and Mark David Hall ed. 2007).
\310\William Rawle, A View of the Constitution of the United States
of America 218 (1829).
\311\2 Story, Commentaries at 234.
---------------------------------------------------------------------------
The American experience with impeachment confirms that
lesson. A strong majority of the impeachments voted by the
House since 1789 have included ``one or more allegations that
did not charge a violation of criminal law.''\312\ Several
officials, moreover, have subsequently been convicted on non-
criminal articles of impeachment. For example, Judge Robert
Archbald was removed in 1912 for non-criminal speculation in
coal properties, and Judge Halsted Ritter was removed in 1936
for the non-criminal offense of bringing his court ``into
scandal and disrepute.''\313\ As House Judiciary Committee
Chairman Hatton Sumners stated explicitly during Judge Ritter's
case, ``We do not assume the responsibility . . . of proving
that the respondent is guilty of a crime as that term is known
to criminal jurisprudence.''\314\ The House has also applied
that principle in Presidential impeachments. Although President
Nixon resigned before the House could consider the articles of
impeachment against him, the Judiciary Committee's allegations
encompassed many non-criminal acts.\315\ And in President
Clinton's case, the Judiciary Committee report accompanying
articles of impeachment to the House floor stated that ``the
actions of President Clinton do not have to rise to the level
of violating the federal statute regarding obstruction of
justice in order to justify impeachment.''\316\
---------------------------------------------------------------------------
\312\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 24.
\313\Report of the Committee on the Judiciary, Robert W. Archbald,
Judge of the United States Commerce Court, H. Rep. No. 62-946 (1912);
H. Res. 422, 74th Cong. (1936).
\314\Berger, Impeachment at 60.
\315\See generally Committee Report on Nixon Articles of
Impeachment (1974).
\316\Committee Report on Clinton Articles of Impeachment (1998) at
66.
---------------------------------------------------------------------------
History thus affords exceptionally clear and consistent
evidence that impeachable ``high Crimes and Misdemeanors'' are
not limited to violations of the criminal code.
B. CONSTITUTIONAL TEXT AND STRUCTURE
That historical conclusion is bolstered by the text and
structure of the Constitution. Starting with the text, we must
assign weight to use of the word ``high.'' That is true not
only because ``high Crimes and Misdemeanors'' was a term of art
with its own history, but also because ``high'' connotes an
offense against the State itself. Thus, ``high'' treason in
Britain was an offense against the Crown, whereas ``petit''
treason was the betrayal of a superior by a subordinate. The
Framers were aware of this when they incorporated ``high'' as a
limitation on impeachable offenses, signifying only
constitutional wrongs.
That choice is particularly noteworthy because the Framers
elsewhere referred to ``crimes,'' ``offenses,'' and
``punishment'' without using this modifier--and so we know
``the Framers knew how to denote ordinary crimes when they
wanted to do so.''\317\ For example, the Fifth Amendment
requires a grand jury indictment in cases of a ``capital, or
otherwise infamous crime.''\318\ The Currency Clause, in turn,
empowers Congress to ``provide for the Punishment of
counterfeiting the Securities and current Coin of the United
States.''\319\ The Law of Nations Clause authorizes Congress to
``define and punish Piracies and Felonies committed on the high
Seas, and Offenses against the Law of Nations.''\320\ And the
Interstate Extradition Clause provides that ``[a] Person
charged in any State with Treason, Felony, or other Crime'' who
flees from one state to another shall be returned upon
request.\321\ Only in the Impeachment Clause did the Framers
refer to ``high'' crimes. By adding ``high'' in this one
provision, while excluding it everywhere else, the Framers
plainly sought to capture a distinct category of offenses
against the state.\322\
---------------------------------------------------------------------------
\317\Tribe & Matz, To End a Presidency at 40.
\318\U.S. Const. amend. V, Sec. 1.
\319\U.S. Const. art. I, Sec. 8, cl. 6.
\320\U.S. Const. art. I, Sec. 8, cl. 10.
\321\U.S. Const. art. IV, Sec. 2, cl. 2.
\322\One might object that since ``Treason'' and ``Bribery'' are
indictable crimes, the same must be true of ``other high Crimes and
Misdemeanors.'' But this argument would fail. Although it is true that
``other high Crimes and Misdemeanors'' share certain characteristics
with ``Treason'' and ``Bribery,'' the key question is which
characteristics unify them. And for all the reasons given here, it is
wrong to conclude that criminality is the unifying principle of
impeachable offenses. Moreover, if the Framers' goal was to limit
impeachment to violations of the criminal law, it is passing strange
that the Impeachment Clause uses a term of art--``high Crimes and
Misdemeanors''--that appears neither in the criminal law itself nor
anywhere else in the Constitution (which does elsewhere refer both to
``crimes'' and ``offenses''). It would have been easy to write a
provision limiting the impeachment power to serious crimes, and yet the
Framers pointedly did not do so.
---------------------------------------------------------------------------
That interpretation is also most consistent with the
structure of the Constitution. This is true in three respects.
First, as explained above, the Impeachment Clause restricts
the consequences of impeachment to removal from office and
disqualification from future federal officeholding. That speaks
to the fundamental character of impeachment. In Justice Story's
words, it is ``a proceeding purely of a political nature. It is
not so much designed to punish an offender, as to secure the
state against gross official misdemeanors. It touches neither
his person, nor his property; but simply divests him of his
political capacity.''\323\ Given that impeachment exists to
address threats to the political system, applies only to
political officials, and responds only by stripping political
power, it makes sense to infer that ``high Crimes and
Misdemeanors'' are offenses against the political system rather
than indictable crimes.
---------------------------------------------------------------------------
\323\2 Story, Commentaries at 272.
---------------------------------------------------------------------------
Second, if impeachment were restricted to crimes,
impeachment proceedings would be restricted to deciding whether
the President had committed a specific crime. Such a view would
create tension between the Impeachment Clause and other
provisions of the Constitution. For example, the Double
Jeopardy Clause protects against being tried twice for the same
crime. Yet the Impeachment Clause contemplates that an
official, once removed, can still face ``Indictment, Trial,
Judgment and Punishment, according to Law.'' It would be
strange if the Framers forbade double jeopardy, yet allowed the
President to be tried in court for crimes after Congress
convicted him in a proceeding that necessarily (and
exclusively) decided whether he was guilty of those very same
crimes.\324\ That oddity is avoided only if impeachment
proceedings are seen ``in noncriminal terms,'' which occurs if
impeachable offenses are understood as distinct from indictable
crimes.\325\
---------------------------------------------------------------------------
\324\See Berger, Impeachment at 80.
\325\Id.
---------------------------------------------------------------------------
Finally, the Constitution was originally understood as
limiting Congress's power to create a federal law of crimes. It
would therefore be strange if the Framers restricted
impeachment to criminal offenses, while denying Congress the
ability to criminalize many forms of Presidential wrongdoing
that they repeatedly described as requiring impeachment.
To set this point in context, the Constitution expressly
authorizes Congress to criminalize only a handful of wrongful
acts: ``counterfeiting, piracy, `offenses against the law of
nations,' and crimes that occur within the military.''\326\
Early Congresses did not tread far beyond that core category of
crimes, and the Supreme Court took a narrow view of federal
power to pass criminal statutes. It was not until much later--
in the twentieth century--that the Supreme Court came to
recognize that Congress could enact a broader criminal code. As
a result, early federal criminal statutes ``covered relatively
few categories of offenses.''\327\ Many federal offenses were
punishable only when committed ``in special places, and within
peculiar jurisdictions, as, for instance, on the high seas, or
in forts, navy-yards, and arsenals ceded to the United
States.''\328\
---------------------------------------------------------------------------
\326\William J. Stuntz, The Collapse of American Criminal Justice
99 (2011).
\327\Tribe & Matz, To End a Presidency at 48.
\328\2 Story, Commentaries at 264.
---------------------------------------------------------------------------
The Framers were not fools. They authorized impeachment for
a reason, and that reason would have been gutted if impeachment
were limited to crimes. It is possible, of course, that the
Framers thought the common law, rather than federal statutes,
would define criminal offenses. That is undeniably true of
``Bribery'': the Framers saw this impeachable offense as
defined by the common law of bribery as it was understood at
the time. But it is hard to believe that the Framers saw common
law as the sole measure of impeachment. For one thing, the
common law did not address itself to many wrongs that could be
committed uniquely by the President in our republican system.
The common law would thus have been an extremely ineffective
tool for achieving the Framers' stated purposes in authorizing
impeachment. Moreover, the Supreme Court held in 1812 that
there is no federal common law of crimes.\329\ If the Framers
thought only crimes could be impeachable offenses, and hoped
common law would describe the relevant crimes, then they made a
tragic mistake--and the Supreme Court's 1812 decision ruined
their plans for the impeachment power.\330\
---------------------------------------------------------------------------
\329\United States v. Hudson and Goodwin, 11 U.S. 32 (1812).
\330\In the alternative, one might say that ``high Crimes and
Misdemeanors'' occur when the president violates state criminal law.
But that turns federalism upside down: invoking state criminal codes to
supply the content of the federal Impeachment Clause would grant states
a bizarre and incongruous primacy in the constitutional system.
Especially given that impeachment is crucial to checks and balances
within the federal government, it would be nonsensical for states to
effectively control when this power may be wielded by Congress.
---------------------------------------------------------------------------
Rather than assume the Framers wrote a Constitution full of
empty words and internal contradictions, it makes far more
sense to agree with Hamilton that impeachment is not about
crimes. The better view, which the House itself has long
embraced, confirms that impeachment targets offenses against
the Constitution that threaten democracy.\331\
---------------------------------------------------------------------------
\331\Article III of the Constitution provides that ``the Trial of
all Crimes, except in Cases of Impeachment, shall be by Jury.'' Article
III, Sec. 2. This provision recognizes that impeachable conduct may
entail criminal conduct--and clarifies that in such cases, the trial of
an impeachment still occurs in the Senate, not by jury.
---------------------------------------------------------------------------
C. THE PURPOSE OF IMPEACHMENT
The distinction between impeachable offenses and crimes
also follows from the fundamentally different purposes that
impeachment and the criminal law serve. At bottom, the
impeachment power is ``the first step in a remedial process--
removal from office and possible disqualification from holding
future office.''\332\ It exists ``primarily to maintain
constitutional government'' and is addressed exclusively to
abuses perpetrated by federal officeholders.\333\ It is through
impeachment proceedings that ``a President is called to account
for abusing powers that only a President possesses.''\334\ The
criminal law, in contrast, ``sets a general standard of conduct
that all must follow.''\335\ It applies to all persons within
its compass and ordinarily defines acts forbidden to everyone;
in our legal tradition, the criminal code ``does not address
itself [expressly] to the abuses of presidential power.''\336\
---------------------------------------------------------------------------
\332\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 24.
\333\Id.
\334\Id.
\335\Id.
\336\Id.
---------------------------------------------------------------------------
Indeed, ``the early Congresses--filled with Framers--didn't
even try to create a body of criminal law addressing many of
the specific abuses that motivated adoption of the Impeachment
Clause in the first place.''\337\ This partly reflects ``a
tacit judgment that it [did] not deem such a code
necessary.''\338\ But that is not the only explanation. The
Constitution vests ``the sole Power of Impeachment'' in the
House; it is therefore doubtful that a statute enacted by one
Congress (and signed by the President) could bind the House at
a later date.\339\ Moreover, any such effort to define and
criminalize all impeachable offenses would quickly run aground.
As Justice Story cautioned, impeachable offenses ``are of so
various and complex a character, so utterly incapable of being
defined, or classified, that the task of positive legislation
would be impracticable, if it were not almost absurd to attempt
it.''\340\
---------------------------------------------------------------------------
\337\Tribe & Matz, To End a Presidency at 48-49.
\338\Berger, Impeachment at 78.
\339\Committee Report on Nixon Articles of Impeachment (1974) at
25.
\340\2 Story, Commentaries at 264.
---------------------------------------------------------------------------
There are also general characteristics of the criminal law
that make criminality inappropriate as an essential element of
impeachable conduct. For example, criminal law traditionally
forbids acts, rather than failures to act, yet impeachable
conduct ``may include the serious failure to discharge the
affirmative duties imposed on the President by the
Constitution.''\341\ In addition, unlike a criminal case
focused on very specific conduct and nothing else, a
Congressional impeachment proceeding may properly consider a
broader course of conduct or scheme that tends to subvert
constitutional government.\342\ Finally, the application of
general criminal statutes to the President may raise
constitutional issues that have no bearing on an impeachment
proceeding, the whole point of which is to assess whether the
President has abused power in ways requiring his removal from
office.\343\
---------------------------------------------------------------------------
\341\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974) at 24.
\342\Id. at 24-25.
\343\Special Counsel Robert S. Mueller, III, Report On The
Investigation Into Russian Interference In The 2016 Presidential
Election, Vol. II at 170-181 (March 2019).
---------------------------------------------------------------------------
For all these reasons, ``[a] requirement of criminality
would be incompatible with the intent of the framers to provide
a mechanism broad enough to maintain the integrity of
constitutional government. Impeachment is a constitutional
safety valve; to fulfill this function, it must be flexible
enough to cope with exigencies not now foreseeable.''\344\
---------------------------------------------------------------------------
\344\Staff Report on Constitutional Grounds for Presidential
Impeachment (1974), at 25.
---------------------------------------------------------------------------
D. THE LIMITED RELEVANCE OF CRIMINALITY
As demonstrated, the President can commit ``high Crimes and
Misdemeanors'' without violating federal criminal law. ``To
conclude otherwise would be to ignore the original meaning,
purpose and history of the impeachment power; to subvert the
constitutional design of a system of checks and balances; and
to leave the nation unnecessarily vulnerable to abusive
government officials.''\345\ Yet the criminal law is not
irrelevant. ``Our criminal codes identify many terrible acts
that would surely warrant removal if committed by the chief
executive.''\346\ Moreover, the President is sworn to uphold
the law. If he violates it while grossly abusing power,
betraying the national interest through foreign entanglements,
or corrupting his office or elections, that weighs in favor of
impeaching him.
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\345\Keith E. Whittington, Must Impeachable Offenses Be Violations
of the Criminal Code?, Lawfare, Nov. 19, 2019.
\346\Tribe & Matz, To End a Presidency at 51.
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VI. Addressing Fallacies About Impeachment
Since the House began its impeachment inquiry, a number of
inaccurate claims have circulated about how impeachment works
under the Constitution. To assist the Committee in its
deliberations, we address six issues of potential relevance:
(1) the law that governs House procedures for impeachment; (2)
the law that governs the evaluation of evidence, including
where the President orders defiance of House subpoenas; (3)
whether the President can be impeached for the abuse of his
executive powers; (4) whether the President's claims regarding
his motives must be accepted at face value; (5) whether the
President is immune from impeachment if he attempts an
impeachable offense but is caught before he completes it; and
(6) whether it is preferable to await the next election when a
President has sought to corrupt that very same election.
A. THE IMPEACHMENT PROCESS
It has been argued that the House has not followed proper
procedure in its ongoing impeachment inquiry. We have
considered those arguments and find that they lack merit.
To start with first principles, the Constitution vests the
House with the ``sole Power of Impeachment.''\347\ It also
vests the House with the sole power to ``determine the Rules of
its Proceedings.''\348\ These provisions authorize the House to
investigate potential ``high Crimes and Misdemeanors,'' to
draft and debate articles of impeachment, and to establish
whatever rules and procedures it deems proper for those
proceedings.\349\
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\347\U.S. Const. art. I, Sec. 2, cl. 5.
\348\U.S. Const. art. I, Sec. 5, cl. 2.
\349\See David Pozen, Risk-Risk Tradeoffs in Presidential
Impeachment, Take Care, Jun. 6, 2018 (``Both chambers of Congress enjoy
vast discretion in how they run impeachment proceedings.'').
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When the House wields its constitutional impeachment power,
it functions like a grand jury or prosecutor: its job is to
figure out what the President did and why he did it, and then
to decide whether the President should be charged with
impeachable offenses. If the House approves any articles of
impeachment, the President is entitled to present a full
defense at trial in the Senate. It is thus in the Senate, and
not in the House, where the President might properly raise
certain protections associated with trials.\350\
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\350\Contra Letter from Pat A. Cipollone, Counsel to the President,
to Nancy Pelosi, Speaker of the House, Adam B. Schiff, Chairman, H.
Perm. Select Comm. on Intelligence, Eliot L. Engel, Chairman, H. Comm.
on Foreign Affairs, and Elijah E. Cummings, Chairman, H. Comm. on
Oversight and Reform (Oct. 8, 2019); Leader McCarthy Speech Against the
Sham Impeachment Vote, Kevin McCarthy, Republican Leader, Oct. 31,
2019.
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Starting in May 2019, the Judiciary Committee undertook an
inquiry to determine whether to recommend articles of
impeachment against President Trump. The Committee subsequently
confirmed, many times, that it was engaged in an impeachment
investigation. On June 11, 2019, the full House approved a
resolution confirming that the Judiciary Committee possessed
``any and all necessary authority under Article I of the
Constitution'' to continue its investigation; an accompanying
Rules Committee Report emphasized that the ``purposes''' of the
inquiry included ``whether to approve `articles of impeachment
with respect to the President.'''\351\ As the Judiciary
Committee continued with its investigation, evidence came to
light that President Trump may have grossly abused the power of
his office in dealings with Ukraine. At that point, the House
Permanent Select Committee on Intelligence, and the House
Oversight and Foreign Affairs Committees, began investigating
potential offenses relating to Ukraine. On September 24, 2019,
House Speaker Nancy Pelosi directed these committees, as well
as the House Judiciary, Financial Services and Ways and Means
Committees, to ``proceed with their investigations under that
umbrella of [an] impeachment inquiry.''\352\ Finally, on
October 31, 2019, the full House approved H. Res. 660, which
directed the six committees ``to continue their ongoing
investigations as part of the existing House of Representatives
inquiry into whether sufficient grounds exist for the House of
Representatives to exercise its Constitutional power to impeach
Donald John Trump, President of the United States of
America.''\353\
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\351\H. Res. 430, 116th Cong. (2019); Authorizing the Committee on
the Judiciary to Initiate or Intervene in Judicial Proceedings to
Enforce Certain Subpoenas and for Other Purposes To Accompany H. Res.
430, H. Rep. 116-108 at 21 (2019).
\352\Nancy Pelosi, Speaker of the House, Pelosi Remarks Announcing
Impeachment Inquiry, Sep. 24 2019.
\353\H. Res. 660, 116th Cong. (2019).
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This approach to investigating potential impeachable
offenses adheres to the Constitution, the Rules of the House,
and historical practice.\354\ House Committees have frequently
initiated and made substantial progress in impeachment
inquiries before the full House considered a resolution
formalizing their efforts. That is what happened in the cases
of Presidents Johnson and Nixon, as well as in many judicial
impeachments (which are subject to the same constitutional
provisions).\355\ Indeed, numerous judges have been impeached
without any prior vote of the full House authorizing a formal
inquiry.\356\ It is both customary and sensible for
committees--particularly the Judiciary Committee--to
investigate evidence of serious wrongdoing before decisions are
made by the full House.
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\354\See generally H. Rep. No. 116-108.
\355\See 3 Hinds Ch. 75 Sec. 2400 (President Johnson); 3 Deschler
Ch. 14, Sec. 15 (President Nixon); H. Rep. No. 101-36, at 13-16 (1988)
(Judge Walter Nixon); H. Res. 320, 100th Cong. (Judge Alcee Hastings);
H. Rep. No. 99-688, at 3-7 (1986) (Judge Harry Claiborne); 3 Deschler
Ch. 14 Sec. 5 (Justice William O. Douglas).
\356\See H. Res. 87, 101st Cong. (1989) (impeaching Judge Nixon);
H. Res. 499, 100th Cong. (1988) (impeaching Judge Hastings); H. Res.
461, 99th Cong. (1986) (impeaching Judge Claiborne).
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In such investigations, the House's initial task is to
gather evidence. As is true of virtually any competent
investigation, whether governmental or private, the House has
historically conducted substantial parts of the initial fact-
finding process out of public view to ensure more accurate and
complete testimony.\357\ In President Nixon's case, for
instance, only the Judiciary Committee Chairman, Ranking
Member, and Committee staff had access to material gathered by
the impeachment inquiry in its first several months.\358\ There
was no need for similar secrecy in President Clinton's case,
but only because the House did not engage in a substantial
investigation of its own; it largely adopted the facts set
forth in a report by Independent Counsel Kenneth Starr, who had
spent years investigating behind closed doors.\359\
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\357\See Tribe & Matz, To End A Presidency at 92 (``Historically,
the House and Senate have investigated through their committees . . .
Critically, although they may involve occasional public hearings, most
investigatory activities must be kept secret until they have nearly
reached an end.'').
\358\Debate on Nixon Articles of Impeachment (1974) at 86.
\359\Committee Report on Clinton Articles of Impeachment (1998) at
300.
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When grand juries and prosecutors investigate wrongdoing by
private citizens and public officials, the person under
investigation has no right to participate in the examination of
witnesses and evidence that precedes a decision on whether to
file charges. That is black letter law under the Constitution,
even in serious criminal cases that threaten loss of life or
liberty. The same is true in impeachment proceedings, which
threaten only loss of public office. Accordingly, even if the
full panoply of rights held by criminal defendants
hypothetically were to apply in the non-criminal setting of
impeachment, the President has no ``due process right'' to
interfere with, or inject himself into, the House's fact-
finding efforts. If the House ultimately approves articles of
impeachment, any rights that the President might hold are
properly secured at trial in the Senate, where he may be
afforded an opportunity to present an evidentiary defense and
test the strength of the House's case.
Although under no constitutional or other legal obligation
to do so, but consistent with historical practice, the full
House approved a resolution--H. Res. 660--that ensures
transparency, allows effective public hearings, and provides
the President with opportunities to participate. The privileges
afforded under H. Res. 660 are even greater than those provided
to Presidents Nixon and Clinton. They allow the President or
his counsel to participate in House Judiciary Committee
proceedings by presenting their case, responding to evidence,
submitting requests for additional evidence, attending hearings
(including non-public hearings), objecting to testimony, and
cross-examining witnesses. In addition, H. Res. 660 gave the
minority the same rights to question witnesses that the
majority has, as has been true at every step of this
impeachment proceeding.
The impeachment inquiry concerning President Trump has thus
complied in every respect with the Constitution, the Rules of
the House, and historic practice of the House.
B. EVIDENTIARY CONSIDERATIONS AND PRESIDENTIAL OBSTRUCTION
The House impeachment inquiry has compiled substantial
direct and circumstantial evidence bearing on the question
whether President Trump may have committed impeachable
offenses. President Trump has objected that some of this
evidence comes from witnesses lacking first-hand knowledge of
his conduct. In the same breath, though, he has ordered
witnesses with first-hand knowledge to defy House subpoenas for
testimony and documents--and has done so in a categorical,
unqualified manner. President Trump's evidentiary challenges
are misplaced as a matter of constitutional law and common
sense.
The Constitution does not prescribe rules of evidence for
impeachment proceedings in the House or Senate. Consistent with
its sole powers to impeach and to determine the rules of its
proceedings, the House is constitutionally authorized to
consider any evidence that it believes may illuminate the
issues before it. At this fact-finding stage, ``no technical
`rules of evidence' apply,'' and ``[e]vidence may come from
investigations by committee staff, from grand jury matter made
available to the committee, or from any other source.''\360\
The House may thus ``subpoena documents, call witnesses, hold
hearings, make legal determinations, and undertake any other
activities necessary to fulfill [its] mandate.''\361\ When
deciding whether to bring charges against the President, the
House is not restricted by the Constitution in deciding which
evidence to consider or how much weight to afford it.
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\360\Black & Bobbitt, Impeachment at 9.
\361\Tribe & Matz, To End a Presidency at 129.
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Indeed, were rules of evidence to apply anywhere, it would
be in the Senate, where impeachments are tried. Yet the Senate
does not treat the law of evidence as controlling at such
trials.\362\ As one scholar explains, ``rules of evidence were
elaborated primarily to hold juries within narrow limits. They
have no place in the impeachment process. Both the House and
the Senate ought to hear and consider all evidence which seems
relevant, without regard to technical rules. Senators are in
any case continually exposed to `hearsay' evidence; they cannot
be sequestered and kept away from newspapers, like a
jury.''\363\
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\362\Gerhardt, The Federal Impeachment Process at 42 (``[E]ven if
the Senate could agree on such rules for impeachment trials, they would
not be enforceable against or binding on individual senators, each of
whom traditionally has had the discretion in an impeachment trial to
follow any evidentiary standards he or she sees fit.'').
\363\Black & Bobbitt, Impeachment at 18. see also Gerhardt, The
Federal Impeachment Process at 117 (``Both state and federal courts
require special rules of evidence to make trials more efficient and
fair or to keep certain evidence away from a jury, whose members might
not understand or appreciate its reliability, credibility, or
potentially prejudicial effect.'').
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Instead of adopting abstract or inflexible rules, the House
and Senate have long relied on their common sense and good
judgment to assess evidence in impeachments. When evidence is
relevant but there is reason to question its reliability, those
considerations affect how much weight the evidence is given,
not whether it can be considered at all.
Here, the factual record is formidable and includes many
forms of highly reliable evidence. It goes without saying,
however, that the record might be more expansive if the House
had full access to the documents and testimony it has lawfully
subpoenaed from government officials. The reason the House
lacks such access is an unprecedented decision by President
Trump to order a total blockade of the House impeachment
inquiry.
In contrast, the conduct of prior chief executives
illustrates the lengths to which they complied with impeachment
inquiries. As President James Polk conceded, the ``power of the
House'' in cases of impeachment ``would penetrate into the most
secret recesses of the Executive Departments,'' and ``could
command the attendance of any and every agent of the
Government, and compel them to produce all papers, public or
private, official or unofficial, and to testify on oath to all
facts within their knowledge.''\364\ Decades later, when the
House conducted an impeachment inquiry into President Johnson,
it interviewed cabinet officials and Presidential aides,
obtained extensive records, and heard testimony about
conversations with Presidential advisors.\365\ Presidents
Grover Cleveland, Ulysses S. Grant, and Theodore Roosevelt each
confirmed that Congress could obtain otherwise-shielded
executive branch documents in an impeachment inquiry.\366\ And
in President Nixon's case--where the President's refusal to
turn over tapes led to an article of impeachment--the House
Judiciary Committee still heard testimony from his chief of
staff (H.R. Haldeman), special counsel (Charles Colson),
personal attorney (Herbert Kalmbach), and deputy assistant
(Alexander Butterfield). Indeed, with respect to the Senate
Watergate investigation, President Nixon stated: ``All members
of the White House Staff will appear voluntarily when requested
by the committee. They will testify under oath, and they will
answer fully all proper questions.''\367\ President Trump's
categorical blockade of the House impeachment inquiry has no
analogue in the history of the Republic.\368\
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\364\H.R. Jour., 29th Cong., 1st Sess. 693 (1846); 4 James D.
Richardson ed., Messages and Papers of Presidents 434-35 (1896).
\365\See generally Reports of Committees, Impeachment
Investigation, 40th Cong., 1st Sess. 183-578 (1867).
\366\See Jonathan David Shaub, The Executive's Privilege:
Rethinking the President's Power to Withhold Information, Lawfare (Oct.
31, 2019).
\367\The White House, Remarks by President Nixon (Apr. 17, 1973)
President Nixon initially stated that members of his ``personal staff''
would ``decline a request for a formal appearance before a committee of
the Congress,'' but reversed course approximately one month later., The
White House, Statement by the President, Executive Privilege (Mar. 12,
1973).
\368\See Tribe & Matz, To End A Presidency at 129 (``Congress's
investigatory powers are at their zenith in the realm of impeachment.
They should ordinarily overcome almost any claim of executive privilege
asserted by the president.'').
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As a matter of constitutional law, the House may properly
conclude that a President's obstruction of Congress is relevant
to assessing the evidentiary record in an impeachment inquiry.
For centuries, courts have recognized that ``when a party has
relevant evidence within his control which he fails to produce,
that failure gives rise to an inference that the evidence is
unfavorable to him.''\369\ Moreover, it is routine for courts
to draw adverse inferences where a party acts in bad faith to
conceal or destroy evidence or preclude witnesses from
testifying.\370\ Although those judicial rules do not control
here, they are instructive in confirming that parties who
interfere with fact-finding processes can suffer an evidentiary
sanction. Consistent with that commonsense principle, the House
has informed the administration that defiance of subpoenas at
the direction or behest of the President or the White House
could justify an adverse inference against the President. In
light of President Trump's unlawful and unqualified direction
that governmental officials violate their legal
responsibilities to Congress, as well as his pattern of witness
intimidation, the House may reasonably infer that their
testimony would be harmful to the President--or at least not
exculpatory. If this evidence were helpful to the President, he
would not break the law to keep it hidden, nor would he engage
in public acts of harassment to scare other witnesses who might
consider coming forward.\371\
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\369\Int'l Union, United Auto., Aerospace & Agr. Implement Workers
of Am. (UAW) v. N. L. R. B., 459 F.2d 1329, 1336 (D.C. Cir. 1972); see
also Interstate Circuit v. United States, 306 U.S. 208, 225-26 (1939);
Rossi v. United States, 289 U.S. 89, 91-92 (1933); Mammoth Oil Co. v.
United States, 275 U.S. 13, 51-53 (1927); Burdine v. Johnson, 262 F.3d
336, 366 (5th Cir. 2001) (collecting cases); United States v. Pitts,
918 F.2d 197, 199 (D.C. Cir. 1990) (holding that, where a missing
witness has ``so much to offer that one would expect [him] to take the
stand,'' and where ``one of the parties had some special ability to
produce him,'' the law allows an inference ``that the missing witness
would have given testimony damaging to that party'').
\370\See, e.g., Bracey v. Grondin, 712 F.3d 1012, 1018 (7th Cir.
2013); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99,
107 (2d Cir. 2002); Nation-Wide Check Corp. v. Forest Hills
Distributors, Inc., 692 F.2d 214, 217 (1st Cir. 1982); see also 2 Jones
on Evidence Sec. 13:12 & Sec. 13:15 (7th ed. 2019 update).
\371\If the President could order all Executive Branch agencies and
officials to defy House impeachment inquiries, and if the House were
unable to draw any inferences from that order with respect to the
President's alleged misconduct, the impeachment power would be a
nullity in many cases where it plainly should apply.
---------------------------------------------------------------------------
One noteworthy result of President Trump's obstruction is
that the House has been improperly denied testimony by certain
government officials who could have offered first-hand accounts
of relevant events. That does not leave the House at sea: there
is still robust evidence, both documentary and testimonial,
bearing directly on his conduct and motives. But especially
given the President's obstruction of Congress, the House is
free under the Constitution to consider reliable testimony from
officials who overheard--or later learned about--statements by
the President to witnesses whose testimony he has blocked.\372\
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\372\Under the Federal Rules of Evidence--which, again, are not
applicable in Congressional impeachment proceedings--judges sometimes
limit witnesses from offering testimony about someone else's out-of-
court statements. They do so for reasons respecting reliability and
with an eye to the unique risks presented by unsophisticated juries
that may not properly evaluate evidence. But because hearsay evidence
can in fact be highly reliable, and because it is ``often relevant,''
Tome v. United States, 513 U.S. 150, 163 (1995), there are many
circumstances in which such testimony is admissible in federal judicial
proceedings. Those circumstances include, but are by no means limited
to, recorded recollections, records of regularly conducted activity,
records of a public office, excited utterances, and statements against
penal or other interest. Moreover, where hearsay evidence bears indicia
of reliability, it is regularly used in many other profoundly important
contexts, including federal sentencing and immigration proceedings.
See, e.g., Arrazabal v. Barr, 929 F.3d 451, 462 (7th Cir. 2019); United
States v. Mitrovic, 890 F.3d 1217, 1222 (11th Cir. 2018); United States
v. Woods, 596 F.3d 445, 448 (8th Cir. 2010). Ironically, although some
have complained that hearings related to the Ukraine affair initially
occurred out of public sight, one reason for that measure was to ensure
the integrity of witness testimony. Where multiple witnesses testified
to the same point in separate, confidential hearings, that factual
conclusion may be seen as corroborated and more highly reliable.
---------------------------------------------------------------------------
To summarize: just like grand jurors and prosecutors, the
House is not subject to rigid evidentiary rules in deciding
whether to approve articles. Members of the House are trusted
to fairly weigh evidence in an impeachment inquiry. Where the
President illegally seeks to obstruct such an inquiry, the
House is free to infer that evidence blocked from its view is
harmful to the President's position. It is also free to rely on
other relevant, reliable evidence that illuminates the ultimate
factual issues. The President has no right to defy an
impeachment inquiry and then demand that the House turn back
because it lacks the very evidence he unlawfully concealed. If
anything, such conduct confirms that the President sees himself
as above the law and may therefore bear on the question of
impeachment.\373\
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\373\The President has advanced numerous arguments to justify his
across-the-board defiance of the House impeachment inquiry. These
arguments lack merit. As this Committee recognized when it impeached
President Nixon for obstruction of Congress, the impeachment power
includes a corresponding power of inquiry that allows the House to
investigate the Executive Branch and compel compliance with its
subpoenas.
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C. ABUSE OF PRESIDENTIAL POWER IS IMPEACHABLE
The powers of the President are immense, but they are not
absolute. That principle applies to the current President just
as it applied to his predecessors. President Nixon erred in
asserting that ``when the President does it, that means it is
not illegal.''\374\ And President Trump was equally mistaken
when he declared he had ``the right to do whatever I want as
president.''\375\ The Constitution always matches power with
constraint. That is true even of powers vested exclusively in
the chief executive. If those powers are invoked for corrupt
reasons, or in an abusive manner that threatens harm to
constitutional governance, the President is subject to
impeachment for ``high Crimes and Misdemeanors.''
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\374\Document: Transcript of David Frost's Interview with Richard
Nixon, Teaching American History. (1977).
\375\ Michael Brice-Saddler, While Bemoaning Mueller Probe, Trump
Falsely Says the Constitution Gives Him `The Right To Do Whatever I
Want'', The Washington Post, July 23, 2019.
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This conclusion follows from the Constitution's history and
structure. As explained above, the Framers created a formidable
Presidency, which they entrusted with ``the executive Power''
and a host of additional authorities. For example, the
President alone can confer pardons, sign or veto legislation,
recognize foreign nations, serve as Commander in Chief of the
armed forces, and appoint or remove principal officers. The
President also plays a significant (though not exclusive) role
in conducting diplomacy, supervising law enforcement, and
protecting national security. These are daunting powers for any
one person to wield. If put to nefarious ends, they could wreak
havoc on our democracy.
The Framers knew this. Fearful of tyranny in all its forms,
they saw impeachment as a necessary guarantee that Presidents
could be held accountable for how they exercised executive
power. Many delegates at the Constitutional Convention and
state ratifying conventions made this point, including Madison,
Randolph, Pinckney, Stillman, and Iredell. Their view was
widely shared. As James Wilson observed in Pennsylvania, ``we
have a responsibility in the person of our President''--who is
``possessed of power''--since ``far from being above the
laws,'' he is ``amenable to them . . . by impeachment.''\376\
Hamilton struck the same note. In Federalist No. 70, he
remarked that the Constitution affords Americans the ``greatest
securities they can have for the faithful exercise of any
delegated power,'' including the power to discover ``with
facility and clearness''' any misconduct requiring ``removal
from office.''\377\ Impeachment and executive power were thus
closely intertwined in the Framers' constitutional plan: the
President could be vested with awesome power, but only because
he faced removal from office for grave abuses.
---------------------------------------------------------------------------
\376\2 Elliot, Debates in the Several State Conventions at 480.
\377\Alexander Hamilton, Federalist No. 70 at 456.
---------------------------------------------------------------------------
The architects of checks and balances meant no exceptions
to this rule. There is no power in the Constitution that a
President can exercise immune from legal consequence. The
existence of any such unchecked and uncheckable authority in
the federal government would offend the bedrock principle that
nobody is above the law. It would also upend the reasons why
our Framers wrote impeachment into the Constitution: the exact
forms of Presidential wrongdoing that they discussed in
Philadelphia could be committed through use of executive
powers, and it is unthinkable that the Framers left the Nation
defenseless in such cases. In fact, when questioned by Mason in
Virginia, Madison expressly stated that the President could be
impeached for abuse of his exclusive pardon power--a view that
the Supreme Court later echoed in Ex Parte Grossman.\378\ By
the same token, a President could surely be impeached for
treason if he fired the Attorney General to thwart the
unmasking of an enemy spy in wartime; he could impeached for
bribery if he offered to divulge state secrets to a foreign
nation, conditioned on regulatory exemptions for his family
business.\379\ Simply put, ``the fact that a power is exclusive
to the executive--that is, the president alone may exercise
it--does not mean the power cannot be exercised in clear bad
faith, and that Congress cannot look into or act upon knowledge
of that abuse.''\380\
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\378\3 Elliot, Debates in the Several State Conventions at 497-98;
Ex Parte Grossman, 267 U.S. at 121. Madison adhered to this
understanding after the Constitution was ratified. In 1789, he
explained to his colleagues in the House that the President would be
subject to impeachment for abuse of the removal power--which is held by
the President alone--``if he suffers [his appointees] to perpetrate
with impunity High crimes or misdemeanors against the United States, or
neglects to superintend their conduct, so as to check their excesses.''
1 Annals of Congress 387 (1789).
\379\Scholars have offered many examples and hypotheticals that
they see as illustrative of this point. See Bowman, High Crimes and
Misdemeanors at 258; Black & Bobbitt, Impeachment at 115; Hemel &
Posner, Presidential Obstruction of Justice at 1297; Tribe & Matz, To
End a Presidency at 61.
\380\Jane Chong, Impeachment-Proof? The President's
Unconstitutional Abuse of His Constitutional Powers, Lawfare, Jan. 2,
2018.
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The rule that abuse of power can lead to removal
encompasses all three branches. The Impeachment Clause applies
to ``The President, Vice President and all civil Officers of
the United States,'' including Article III judges.\381\ There
is no exception to impeachment for misconduct by federal judges
involving the exercise of their official powers. In fact, the
opposite is true: ``If in the exercise of the powers with which
they are clothed as ministers of justice, [judges] act with
partiality, or maliciously, or corruptly, or arbitrarily, or
oppressively, they may be called to an account by
impeachment.''\382\ Similarly, if Members of Congress exercise
legislative power abusively or with corrupt purposes, they may
be removed pursuant to the Expulsion Clause, which permits each
house of Congress to expel a member ``with the Concurrence of
two thirds.''\383\ Nobody is entitled to wield power under the
Constitution if they ignore or betray the Nation's interests to
advance their own.
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\381\U.S. Const. art. II, Sec. 4.
\382\Bradley v. Fisher 80 U.S. 335, 350 (1871).
\383\U.S. Const. art. I, Sec. 5, cl. 2.
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This is confirmed by past practice of the House. President
Nixon's case directly illustrates the point. As head of the
Executive Branch, he had the power to appoint and remove law
enforcement officials, to issue pardons, and to oversee the
White House, IRS, CIA, and FBI. But he did not have any warrant
to exercise these Presidential powers abusively or corruptly.
When he did so, the House Judiciary Committee properly approved
multiple articles of impeachment against him. Several decades
later, the House impeached President Clinton. There, the House
witnessed substantial disagreement over whether the President
could be impeached for obstruction of justice that did not
involve using the powers of his office. But it was universally
presumed--and never seriously questioned--that the President
could be impeached for obstruction of justice that did involve
abuse of those powers.\384\ That view rested firmly on a
correct understanding of the Constitution.
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\384\See generally 1998 Background and History of Impeachment
Hearing.
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Our Constitution rejects pretensions to monarchy and binds
Presidents with law. A President who sees no limit on his power
manifestly threatens the Republic.
D. PRESIDENTIAL PRETEXTS NEED NOT BE ACCEPTED AT FACE VALUE
Impeachable offenses are often defined by corrupt intent.
To repeat Iredell, ``the president would be liable to
impeachments [if] he had . . . acted from some corrupt motive
or other,'' or if he was ``willfully abusing his trust.''\385\
Consistent with that teaching, both ``Treason'' and ``Bribery''
require proof that the President acted with an improper state
of mind, as would many other offenses described as impeachable
at the Constitutional Convention. Contrary to occasional
suggestions that the House may not examine the President's
intent, an impeachment inquiry may therefore require the House
to determine why the President acted the way he did.
Understanding the President's motives may clarify whether he
used power in forbidden ways, whether he was faithless in
executing the laws, and whether he poses a continuing danger to
the Nation if allowed to remain in office.
---------------------------------------------------------------------------
\385\Id. at 49.
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When the House probes a President's state of mind, its
mandate is to find the facts. There is no room for legal
fictions or lawyerly tricks that distort a clear assessment of
the President's thinking. That means evaluating the President's
explanations to see if they ring true. The question is not
whether the President's conduct could have resulted from
innocent motives. It is whether the President's real reasons--
the ones actually in his mind as he exercised power--were
legitimate. The Framers designed impeachment to root out abuse
and corruption, even when a President masks improper intent
with cover stories.
Accordingly, where the President's explanation of his
motives defies common sense, or is otherwise unbelievable, the
House is free to reject the pretextual explanation and to
conclude that the President's false account of his thinking is
itself evidence that he acted with corrupt motives. The
President's honesty in an impeachment inquiry, or his lack
thereof, can thus shed light on the underlying issue.\386\
---------------------------------------------------------------------------
\386\See Tribe & Matz, To End A Presidency at 92 (``Does the
president admit error, apologize, and clean house? Does he prove his
innocence, or at least his reasonable good faith? Or does he lie and
obstruct until the bitter end? Maybe he fires investigators and
stonewalls prosecutors? . . . These data points are invaluable when
Congress asks whether leaving the president in office would pose a
continuing threat to the nation.'').
---------------------------------------------------------------------------
President Nixon's case highlights the point. In its
discussion of an article of impeachment for abuse of power, the
House Judiciary Committee concluded that he had ``falsely used
a national security pretext'' to direct executive agencies to
engage in unlawful electronic surveillance investigations, thus
violating ``the constitutional rights of citizens.''\387\ In
its discussion of the same article, the Committee also found
that President Nixon had interfered with the Justice Department
by ordering it to cease investigating a crime ``on the pretext
that it involved national security.''\388\ President Nixon's
repeated claim that he had acted to protect national security
could not be squared with the facts, and so the Committee
rejected it in approving articles of impeachment against him
for targeting political opponents.
---------------------------------------------------------------------------
\387\Committee Report on Nixon Articles of Impeachment (1974) at
146.
\388\Id. at 179.
---------------------------------------------------------------------------
Testing whether someone has falsely characterized their
motives requires careful attention to the facts. In rare cases,
``some implausible, fantastic, and silly explanations could be
found to be pretextual without any further evidence.''\389\
Sifting truth from fiction, though, usually demands a thorough
review of the record--and a healthy dose of common sense. The
question is whether ``the evidence tells a story that does not
match the explanation.''\390\
---------------------------------------------------------------------------
\389\Purkett v. Elem, 514 U.S. 765, 776-77 (1995) (Stevens, J.,
dissenting).
\390\Dep't of Commerce v. N.Y., No. 18-966, at 27 (U.S. Jun. 27,
2019).
---------------------------------------------------------------------------
Because courts assess motive all the time, they have
identified warning signs that an explanation may be
untrustworthy. Those red flags include the following:
First, lack of fit between conduct and explanation. This
exists when someone claims they were trying to achieve a
specific goal but then engaged in conduct poorly tailored to
achieving it.\391\ For instance, imagine the President claims
that he wants to solve a particular problem--but then he
ignores many clear examples of that problem, weakens rules
meant to stop it from occurring, acts in ways unlikely to
address it, and seeks to punish only two alleged violators
(both of whom happen to be his competitors). The lack of fit
between his punitive conduct and his explanation for it
strongly suggests that the explanation is false, and that he
invented it as a pretext for corruptly targeting his
competitors.
---------------------------------------------------------------------------
\391\See Romer v. Evans, 517 U.S. 620, 632 (1996); Albemarle Paper
Co. v. Moody, 422 U.S. 405, 425 (1975); Miller-El v. Dretke, 545 U.S.
231, 260 (2005).
---------------------------------------------------------------------------
Second, arbitrary discrimination. When someone claims they
were acting for a particular reason, look to see if they
treated similarly-situated individuals the same.\392\ For
example, if a President says that people doing business abroad
should not engage in specific practices, does he punish
everyone who breaks that rule, or does he pick and choose? If
he picks and chooses, is there a good reason why he targets
some people and not others, or does he appear to be targeting
people for reasons unrelated to his stated motive? Where
similarly-situated people are treated differently, the
President should be able to explain why; if no such explanation
exists, it follows that hidden motives are in play.
---------------------------------------------------------------------------
\392\Flowers v. Mississippi, 139 S. Ct. 2228, 2249 (2019); Miller-
El v. Cockrell, 537 U.S. 322, 345 (2003).
---------------------------------------------------------------------------
Third, shifting explanations. When someone repeatedly
changes their story, it makes sense to infer that they began
with a lie and may still be lying.\393\ That is true in daily
life and it is true in impeachments. The House may therefore
doubt the President's account of his motives when he first
denies that something occurred; then admits that it occurred
but denies key facts; then admits those facts and tries to
explain them away; and then changes his explanation as more
evidence comes to light. Simply stated, the House is ``not
required to exhibit a naivete from which ordinary citizens are
free.''\394\
---------------------------------------------------------------------------
\393\See Foster v. Chatman, 136 S. Ct. 1737, 1754 (2016); Evans v.
Sebelius, 716 F.3d 617, 620-21 (D.C. Cir. 2013); Geleta v. Gray, 645
F.3d 408, 413-14 (D.C. Cir. 2011); EEOC v. Sears Roebuck & Co., 243
F.3d 846, 853 (4th Cir.2001); Dominguez-Cruz v. Suttle Caribe, Inc.,
202 F.3d 424, 432 (1st Cir. 2000); Thurman v. Yellow Freight Sys.,
Inc., 90 F.3d 1160, 1167 (6th Cir. 1996).
\394\United States v. Stanchich, 550 F.2d 1294, 1300 (2nd Cir.
1977) (Friendly, J.) (making a similar point about federal judges).
---------------------------------------------------------------------------
Fourth, irregular decisionmaking. When someone breaks from
the normal method of making decisions, and instead acts
covertly or strangely, there is cause for suspicion. As the
Supreme Court has reasoned, ``[t]he specific sequence of events
leading up the challenged decision'' may ``shed some light on
the decisionmaker's purposes''--and ``[d]epartures from the
normal procedural sequence'' might ``afford evidence that
improper purposes are playing a role.''\395\ There are many
personnel and procedures in place to ensure sound
decisionmaking in the Executive Branch. When they are ignored,
or replaced by secretive irregular channels, the House must
closely scrutinize Presidential conduct.
---------------------------------------------------------------------------
\395\See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 267 (1977).
---------------------------------------------------------------------------
Finally, explanations based on falsehoods. Where someone
explains why they acted a certain way, but the explanation
depends on demonstrably false facts, then their explanation is
suspect.\396\ For example, if a President publicly states that
he withheld funds from a foreign nation due to its failure to
meet certain conditions, but the federal agencies responsible
for monitoring those conditions certify that they were
satisfied, the House may conclude that the President's
explanation is only a distraction from the truth.
---------------------------------------------------------------------------
\396\See, e.g., Reeves v. Sanderson Plumbing Products, 530 U.S.
133, 147 (2000); Geleta v. Gray, 645 F.3d 408, 414 (D.C. Cir. 2011);
Czekalski v. Peters, 475 F.3d 360, 366 (D.C. Cir. 2007); Murray v.
Gilmore, 406 F.3d 708, 716 (D.C. Cir. 2005); Salazar v. Wash. Metro.
Transit Auth., 401 F.3d 504, 511-12 (D.C. Cir. 2005); Anderson v.
Zubieta, 180 F.3d 329, 348 (D.C. Cir. 1999).
---------------------------------------------------------------------------
When one or more of these red flags is present, there is
reason to doubt that the President's account of his motives is
accurate. When they are all present simultaneously, that
conclusion is virtually unavoidable. Thus, in examining the
President's motives as part of an impeachment inquiry, the
House must test his story against the evidence to see if it
holds water. If it does not, the House may find that he acted
with corrupt motives--and that he has made false statements as
part of an effort to stymie the impeachment inquiry.
E. ATTEMPTED PRESIDENTIAL MISCONDUCT IS IMPEACHABLE
As a matter of settled constitutional law, and contrary to
recent suggestions otherwise, attempted Presidential wrongdoing
can be impeachable. This is clear from the records of the
Constitutional Convention. In the momentous exchange that led
to adoption of the ``high Crimes and Misdemeanors''' standard,
Mason championed impeaching Presidents for any ``great and
dangerous offenses.'' It was therefore necessary, he argued, to
avoid a narrow standard that would prevent impeachment for
``attempts to subvert the Constitution'' (emphasis added).
Then, only minutes later, it was Mason himself who suggested
``high Crimes and Misdemeanors'' as the test for Presidential
impeachment. The very author of the relevant constitutional
text thus made clear it must cover ``attempts.''
The House Judiciary Committee reached this conclusion in
President Nixon's case. Its analysis is compelling and
consistent with Mason's reasoning:
In some of the instances in which Richard M. Nixon
abused the powers of his office, his unlawful or
improper objective was not achieved. But this does not
make the abuse of power any less serious, nor diminish
the applicability of the impeachment remedy. The
principle was stated by Supreme Court Justice William
Johnson in 1808: ``If an officer attempt[s] an act
inconsistent with the duties of his station, it is
presumed that the failure of the attempt would not
exempt him from liability to impeachment. Should a
President head a conspiracy for the usurpation of
absolute power, it is hoped that no one will contend
that defeating his machinations would restore him to
innocence.'' Gilchrist v. Collector of Charleston, 10
F. Cas. 355, 365 (No. 5, 420) (C.C.D.S.C. 1808).
Adhering to this legal analysis, the Committee approved
articles of impeachment against President Nixon that
encompassed acts of attempted wrongdoing that went nowhere or
were thwarted. That includes President Nixon's attempt to block
an investigation by the Patman Committee into the Watergate
break-ins,\397\ his attempt to block testimony by former
aides,\398\ his attempt to ``narrow and divert'' the Senate
Select Committee's investigation,\399\ and his attempt to have
the IRS open tax audits of 575 members of George McGovern's
staff and contributors to his campaign, at a time when McGovern
was President Nixon's political opponent in the upcoming 1972
presidential election.\400\ Moreover, the article of
impeachment against President Nixon for abuse of power charged
that he ``attempted to prejudice the constitutional right of an
accused to a fair trial.''\401\
---------------------------------------------------------------------------
\397\Committee Report on Nixon Articles of Impeachment (1974) at
64.
\398\Id. at 120.
\399\Id.
\400\Id. at 143.
\401\Id. at 3.
---------------------------------------------------------------------------
History thus confirms that defiance by his own aides do not
afford the President a defense to impeachment. The Nation is
not required to cross its fingers and hope White House staff
will persist in ignoring or sidelining a President who orders
them to execute ``high Crimes and Misdemeanors.'' Nor can a
President escape impeachment just because his corrupt plan to
abuse power or manipulate elections was discovered and
abandoned. It is inconceivable that our Framers authorized the
removal of Presidents who engage in treason or bribery, but
disallowed the removal of Presidents who attempt such offenses
and are caught before they succeed. Moreover, a President who
takes concrete steps toward engaging in impeachable conduct is
not entitled to any benefit of the doubt. As one scholar
remarks in the context of attempts to manipulate elections,
``when a substantial attempt is made by a candidate to procure
the presidency by corrupt means, we may presume that he at
least thought this would make a difference in the outcome, and
thus we should resolve any doubts as to the effects of his
efforts against him.''\402\
---------------------------------------------------------------------------
\402\Black & Bobbitt, Impeachment at 93.
---------------------------------------------------------------------------
Common sense confirms what the law provides: a President
may be impeached where he attempts a grave abuse of power, is
caught along the way, abandons his plan, and subsequently seeks
to conceal his wrongdoing. A President who attempts impeachable
offenses will surely attempt them again. The impeachment power
exists so that the Nation can remove such Presidents from power
before their attempts finally succeed.
F. IMPEACHMENT IS PART OF DEMOCRATIC GOVERNANCE
As House Judiciary Committee Chairman Peter Rodino
emphasized in 1974, ``it is under our Constitution, the supreme
law of our land, that we proceed through the sole power of
impeachment.''\403\ Impeachment is part of democratic
constitutional governance, not an exception to it. It results
in the President's removal from office only when a majority of
the House, and then a super-majority of the Senate, conclude
that he has engaged in sufficiently grave misconduct that his
term in office must be brought to an early end. This process
does not ``nullify'' the last election. No President is
entitled to persist in office after committing ``high Crimes
and Misdemeanors,'' and no voter is entitled to expect that
their preferred candidate will do so. Under the Constitution,
when a President engages in great and dangerous offenses
against the Nation--thus betraying their Oath of Office--
impeachment and removal by Congress may be necessary to protect
our democracy.
---------------------------------------------------------------------------
\403\Debate on Nixon Articles of Impeachment (1974) at 2.
---------------------------------------------------------------------------
The Framers considered relying solely on elections, rather
than impeachment, to remove wayward Presidents. But they
overwhelmingly rejected that position. As Madison warned,
waiting so long ``might be fatal to the Republic.''\404\
Particularly where the President's misconduct is aimed at
corrupting our democracy, relying on elections to solve the
problem is insufficient: it makes no sense to wait for the
ballot box when a President stands accused of interfering with
elections and is poised to do so again. Numerous Framers spoke
directly to this point at the Constitutional Convention.
Impeachment is the remedy for a President who will do anything,
legal or not, to remain in office. Allowing the President a
free pass is thus the wrong move when he is caught trying to
corrupt elections in the final year of his first four-year
term--just as he prepares to face the voters.
---------------------------------------------------------------------------
\404\Elliot, Debates on the Adoption of the Federal Constitution at
341.
---------------------------------------------------------------------------
Holding the President accountable for ``high Crimes and
Misdemeanors'' not only upholds democracy, but also vindicates
the separation of powers. Representative Robert Kastenmeier
explained this well in 1974: ``The power of impeachment is not
intended to obstruct or weaken the office of the Presidency. It
is intended as a final remedy against executive excess . . .
[a]nd it is the obligation of the Congress to defend a
democratic society against a Chief Executive who might be
corrupt.''\405\ The impeachment power thus restores balance and
order when Presidential misconduct threatens constitutional
governance.
---------------------------------------------------------------------------
\405\Debate on Nixon Articles of Impeachment (1974) at 16.
---------------------------------------------------------------------------
VII. Conclusion
As Madison recognized, ``In framing a government which is
to be administered by men over men, the great difficulty lies
in this: You must first enable the government to control the
governed; and in the next place oblige it control
itself.''\406\ Impeachment is the House's last and most
extraordinary resort when faced with a President who threatens
our constitutional system. It is a terrible power, but only
``because it was forged to counter a terrible power: the despot
who deems himself to be above the law.''\407\ The consideration
of articles of impeachment is always a sad and solemn
undertaking. In the end, it is the House--speaking for the
Nation as a whole--that must decide whether the President's
conduct rises to the level of ``high Crimes and Misdemeanors''
warranting impeachment.
---------------------------------------------------------------------------
\406\James Madison, Federalist No. 51 at 356.
\407\Jill Lepore, The Invention--And Reinvention--Of Impeachment,
The New Yorker Oct. 21, 2019.
---------------------------------------------------------------------------
Article I: Abuse of Power
I. The First Article of Impeachment
The Constitution provides that the House of Representatives
``shall have the sole Power of Impeachment'' and that the
President ``shall be removed from Office on Impeachment for,
and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors'''. In his conduct of the office of President of
the United States--and in violation of his constitutional oath
faithfully to execute the office of President of the United
States and, to the best of his ability, preserve, protect, and
defend the Constitution of the United States, and in violation
of his constitutional duty to take care that the laws be
faithfully executed--Donald J. Trump has abused the powers of
the Presidency, in that:
Using the powers of his high office, President Trump
solicited the interference of a foreign government, Ukraine, in
the 2020 United States Presidential election. He did so through
a scheme or course of conduct that included soliciting the
Government of Ukraine to publicly announce investigations that
would benefit his reelection, harm the election prospects of a
political opponent, and influence the 2020 United States
Presidential election to his advantage. President Trump also
sought to pressure the Government of Ukraine to take these
steps by conditioning official United States Government acts of
significant value to Ukraine on its public announcement of the
investigations. President Trump engaged in this scheme or
course of conduct for corrupt purposes in pursuit of personal
political benefit. In so doing, President Trump used the powers
of the Presidency in a manner that compromised the national
security of the United States and undermined the integrity of
the United States democratic process. He thus ignored and
injured the interests of the Nation.
President Trump engaged in this scheme or course of conduct
through the following means:
(1) President Trump--acting both directly and through
his agents within and outside the United States
Government--corruptly solicited the Government of
Ukraine to publicly announce investigations into--
(A) a political opponent, former Vice
President Joseph R. Biden, Jr.; and
(B) a discredited theory promoted by Russia
alleging that Ukraine--rather than Russia--
interfered in the 2016 United States
Presidential election.
(2) With the same corrupt motives, President Trump--
acting both directly and through his agents within and
outside the United States Government--conditioned two
official acts on the public announcements that he had
requested--
(A) the release of $391 million of United
States taxpayer funds that Congress had
appropriated on a bipartisan basis for the
purpose of providing vital military and
security assistance to Ukraine to oppose
Russian aggression and which President Trump
had ordered suspended; and
(B) a head of state meeting at the White
House, which the President of Ukraine sought to
demonstrate continued United States support for
the Government of Ukraine in the face of
Russian aggression.
(3) Faced with the public revelation of his actions,
President Trump ultimately released the military and
security assistance to the Government of Ukraine, but
has persisted in openly and corruptly urging and
soliciting Ukraine to undertake investigations for his
personal political benefit.
These actions were consistent with President Trump's
previous invitations of foreign interference in United States
elections.
In all of this, President Trump abused the powers of the
Presidency by ignoring and injuring national security and other
vital national interests to obtain an improper personal
political benefit. He has also betrayed the Nation by abusing
his high office to enlist a foreign power in corrupting
democratic elections.
Wherefore President Trump, by such conduct, has
demonstrated that he will remain a threat to national security
and the Constitution if allowed to remain in office, and has
acted in a manner grossly incompatible with self-governance and
the rule of law. President Trump thus warrants impeachment and
trial, removal from office, and disqualification to hold and
enjoy any office of honor, trust, or profit under the United
States.
II. Introduction
The President is entrusted with extraordinary power and
commanded to ``take Care that the Laws be faithfully
executed.'' At minimum, that means the President must use his
office to serve and protect the American people. It is thus a
grave violation of the Constitution for a President to betray
the public by exercising power for his own personal gain while
injuring and ignoring vital national interests. As the Framers
confirmed, such abuse of power warrants impeachment.
President Donald J. Trump used the power of his office to
solicit and pressure a foreign nation to interfere in the 2020
United States Presidential election. He did so not for any
legitimate United States policy objective, but to obtain a
personal political advantage and to harm a political opponent.
His scheme involved directly soliciting the announcement of
investigations related to former Vice President Joseph Biden
and the 2016 United States Presidential election. It also
involved leveraging military and security assistance to a
fragile foreign ally, as well as a valuable White House
meeting, as part of a pressure campaign to induce that sought-
after announcement.
These corrupt efforts by President Trump to manipulate the
next election in his favor harmed the national security of the
United States and imperiled the integrity of our democratic
system. But when President Trump was caught, he did not
apologize or cease his misconduct. He instead persisted in
urging foreign nations to investigate an American citizen who
dared to oppose him politically. If President Trump is allowed
to remain in office, he will unquestionably continue to pursue
personal political benefits at the direct expense of our
security and self-governance.
This conduct, and the risk posed by President Trump's
pattern of misconduct, is the very definition of an impeachable
offense. It captures the Framers' worst fears about how
Presidents might someday abuse the powers of their office. To
protect democracy and safeguard national security, the
Committee on the Judiciary has no choice but to recommend that
President Trump be impeached.
III. President Trump Committed ``High Crimes and Misdemeanors''' by
Abusing the Powers of His Office
A. ABUSE OF POWER IS AN IMPEACHABLE ``HIGH CRIME AND MISDEMEANOR''
``[A]buse of power was no vague notion to the Framers and
their contemporaries. It had a very particular meaning to
them.''\408\ This meaning encompassed the use of official
powers in a way that ``on its very face grossly exceeds the
President's constitutional authority or violates legal limits
on that authority.''\409\ As relevant here, it also included
``the exercise of official power to obtain an improper personal
benefit, while ignoring or injuring the national
interest.''\410\ This understanding is rooted in the
Constitution's Take Care Clause, which commands the President
to ``faithfully execute'' the law.\411\ That duty requires
Presidents ``to exercise their power only when it is motivated
in the public interest rather than in their private self-
interest.''\412\
---------------------------------------------------------------------------
\408\See Staff of H. Comm. on the Judiciary, 116th Cong.,
Constitutional Grounds for Presidential Impeachment 18 (Comm. Print
2019) (hereinafter ``Constitutional Grounds for Impeachment (2019)'').
\409\Id.
\410\Id. at 8.
\411\U.S. Const., art. II, Sec. 3, cl. 5.
\412\Andrew Kent et al., Faithful Execution and Article II, 132
Harv. L. Rev. 2111, 2120, 2179 (2019).
---------------------------------------------------------------------------
Numerous Framers confirmed that a President can be
impeached for exercising power with a corrupt purpose. As James
Iredell explained, ``the president would be liable to
impeachments [if] he had . . . acted from some corrupt motive
or other,'' or if he was ``willfully abusing his trust.''\413\
Alexander Hamilton deemed impeachment proper for ``offenses
which proceed from the misconduct of public men, or, in other
words, from the abuse or violation of some public trust.''\414\
In a similar vein, James Madison reasoned that the President
could be impeached if there were ``grounds to believe'' he used
his pardon power for the corrupt purpose of obstructing justice
by ``shelter[ing]'' persons with whom he is connected ``in any
suspicious manner.''\415\ As these and many other historical
authorities show, ``to the Framers, it was dangerous for
officials to exceed their constitutional power, or to
transgress legal limits, but it was equally dangerous (perhaps
more so) for officials to conceal corrupt or illegitimate
objectives behind superficially valid acts.''\416\
---------------------------------------------------------------------------
\413\Background and History of Impeachment: Hearing Before the
Subcomm. On the Constitution of the H. Comm. on the Judiciary, 105th
Cong. 49 (1999) (statement of Michael J. Gerhardt).
\414\The Federalist No. 65, at 426 (Alexander Hamilton) (Benjamin
Fletcher Wright ed., 2004).
\415\3 Jonathan Elliot, ed., The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 497-98 (1861)
(hereinafter ``Debates in the Several State Conventions'').
\416\Constitutional Grounds for Impeachment (2019), at 20. Many
other Framers agreed that abuse of power is an impeachable offense. In
explaining why the Constitution must authorize Presidential
impeachment, Edmund Randolph warned that ``the Executive will have
great opportunit[ies] of abusing his power.'' 2 Max Farrand, ed., The
Records of the Federal Convention of 1787, 67 (1911). Charles Pinckney
agreed that Presidents must be removed who ``behave amiss or betray
their public trust.'' 4 Debates in the Several State Conventions, at
281. Reverend Samuel Stillman asked, ``With such a prospect [of
impeachment], who will dare to abuse the powers vested in him by the
people?'' 2 Debates in the Several State Conventions, at 169.
---------------------------------------------------------------------------
The proceedings against President Nixon confirm and
exemplify the point. Two of the three articles against him--
Article I (obstruction of justice) and Article II (abuse of
power)--accused President Nixon of using his executive power
for corrupt ends.\417\ The second article principally addressed
President Nixon's use of power, including powers vested solely
in the Presidency, to aid political allies, harm political
opponents, and gain improper personal political advantages. In
explaining this article of impeachment, the House Committee on
the Judiciary (the ``Committee'') stated that President Nixon's
conduct was ``undertaken for his personal political advantage
and not in furtherance of any valid national policy
objective.''\418\ His abuses of Presidential power were
therefore ``seriously incompatible with our system of
constitutional government'' and warranted removal from
office.\419\
---------------------------------------------------------------------------
\417\Report of the Committee on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, H. Rep. No. 93-1305,
at 1-4 (1974) (hereinafter ``Committee Report on Nixon Articles of
Impeachment (1974)''). Obstruction of justice was also the basis for an
article of impeachment against President Clinton, though his conduct
did not involve official acts. See H. Res. 611, 105th Cong. (1998).
\418\Committee Report on Nixon Articles of Impeachment (1974) at
139.
\419\Id.
---------------------------------------------------------------------------
It is occasionally suggested that a President cannot be
impeached for the use (or abuse) of powers vested in him by the
Constitution. As the Framers made clear, and as President
Nixon's case proves, that interpretation is plainly incorrect
and, moreover, would eviscerate our system of checks and
balances. The fact that a President is vested with powers does
not mean he can exercise them with impunity. Nor does it mean
he is free to set his own personal gain as the de facto policy
of the United States. To the contrary, when the President
wields power entrusted to him by the people of this Nation, he
must honor and serve that public trust. Where a President
betrays that obligation by corrupting his office, he is subject
to impeachment.
B. THE FRAMERS FEARED PRESIDENTS WOULD ABUSE THEIR POWER TO BETRAY
NATIONAL INTERESTS THROUGH FOREIGN ENTANGLEMENTS AND TO CORRUPT
ELECTIONS
In warning against abuse of power, the Framers repeatedly
returned to two very specific risks: betrayal of the national
interest and corruption of elections. Informed by history, the
Framers perceived these abuses as existential threats to the
Republic. The United States could not survive if Presidents
used their high office to conspire with foreign nations in
pursuit of personal gain. And democracy would be in grave
danger if Presidents used their powers to subvert elections. As
John Adams warned in a letter to Thomas Jefferson, these risks
were unavoidable and might sometimes overlap: ``You are
apprehensive of foreign Interference, Intrigue, Influence. So
am I . . . . [A]s often as Elections happen, the danger of
foreign Influence recurs.''\420\ In Federalist No. 68, Hamilton
cautioned that the ``most deadly adversaries of republican
government'' may come ``chiefly from the desire in foreign
powers to gain an improper ascendant in our councils.''\421\
The Framers sought to guard against this threat in the
Impeachment Clause. If a President succumbed to temptation,
placing his own personal interests above our national security
and commitment to domestic self-governance, he faced
impeachment and removal from his position of power.
---------------------------------------------------------------------------
\420\Papers of Thomas Jefferson, To Thomas Jefferson from John
Adams, 6 December 1787, National Archives, Founders Online.
\421\The Federalist No. 68, at 441 (Alexander Hamilton).
---------------------------------------------------------------------------
Betrayal of national security was not an abstraction to the
Framers, who had just waged a war for independence and knew the
peril of corrupt foreign entanglements. ``Foreign powers,''
warned Elbridge Gerry, ``will intermeddle in our affairs, and
spare no expense to influence them.''\422\ In explaining why
the Constitution required an impeachment option, Madison argued
that a President ``might betray his trust to foreign
powers.''\423\ Benjamin Franklin, in turn, referenced the
Prince of Orange, who had reneged on a military treaty with
France under suspicious circumstances, inciting ``the most
violent animosities and contentions''' in Dutch politics.\424\
These and other Framers made clear that impeachment was a
safeguard against Presidents who betrayed vital national
interests through plots with foreign powers. The President's
broad authority in conducting foreign affairs makes it more
important, not less, that he display unswerving loyalty to the
United States.\425\ ``Accordingly, where the President uses his
foreign affairs power in ways that betray the national interest
for his own benefit, or harm national security for equally
corrupt reasons, he is subject to impeachment by the House . .
. A President who perverts his role as chief diplomat to serve
private rather than public ends has unquestionably engaged in
`high Crimes and Misdemeanors'--especially if he invited,
rather than opposed, foreign interference in our
politics.''\426\
---------------------------------------------------------------------------
\422\Brianne Gorod & Elizabeth Wydra, The First Magistrate in
Foreign Pay, The New Republic, Nov. 11, 2019.
\423\ 2 Farrand, Records of the Federal Convention, at 66.
\424\Id. at 68.
\425\Constitutional Grounds for Impeachment (2019), at 45.
\426\Id. at 24. Thus, ``[a]lthough the Framers did not intend
impeachment for genuine, good faith disagreements between the President
and Congress over matters of diplomacy, they were explicit that
betrayal of the Nation through plots with foreign powers justified
removal.'' Id. at 23.
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This last point speaks to a distinct but related fear: that
Presidents would improperly use the vast power of their office
to ensure their own re-election. William Davie saw impeachment
as ``an essential security for the good behaviour of the
Executive,'' who might otherwise spare ``no efforts or means
whatever to get himself re-elected.''\427\ George Mason agreed
that the threat of electoral treachery ``furnished a peculiar
reason in favor of impeachments whilst in office'': ``Shall the
man who has practised corruption & by that means procured his
appointment in the first instance, be suffered to escape
punishment, by repeating his guilt?''\428\ Gouverneur Morris
later added that ``the Executive ought therefore to be
impeachable for . . . Corrupting his electors.''\429\ Based in
their own experience under King George III, as well as the
writings of John Locke and other luminaries, ``those who wrote
our Constitution knew, and feared, that the chief executive
could threaten their plan of government by corrupting
elections.''\430\ They included impeachment in the Constitution
largely to thwart such treachery. As explained above, ``The
true nature of this threat is its rejection of government by
`We the People,' who would `ordain and establish' the
Constitution . . . When the President concludes that elections
threaten his continued grasp on power, and therefore seeks to
corrupt or interfere with them, he denies the very premise of
our constitutional system. The American people choose their
leaders; a President who wields power to destroy opponents or
manipulate elections is a President who rejects democracy
itself.''\431\
---------------------------------------------------------------------------
\427\2 Farrand, Records of the Federal Convention, at 64.
\428\Id. at 65.
\429\Id. at 69.
\430\See Constitutional Grounds for Impeachment (2019), at 27.
\431\Id.
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These authorities make clear that a President commits
``high Crimes and Misdemeanors''' where he exercises official
power to obtain an improper personal benefit, while ignoring or
injuring the national interest. Such an abuse is especially
abhorrent where it involves a betrayal of the national interest
through foreign entanglements or an effort to corrupt our
democracy. ``Any one of these violations of the public trust
justifies impeachment; when combined in a single course of
conduct, they state the strongest possible case for impeachment
and removal from office.''\432\
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\432\Id. at 11.
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C. KEY FINDINGS OF FACT
The complete evidentiary record bearing on President
Trump's abuse of power is set forth in the Trump-Ukraine
Impeachment Inquiry Report, (the ``Ukraine Report''), and we
rely on that Report and its findings here. Because we do not
restate all of the facts contained in that Report which support
the Committee's conclusions, we fully incorporate the Ukraine
Report by reference here.\433\. On the basis of that full
record, it is indisputable that President Trump engaged in
abuse of power. The essential facts bearing on that judgment
include the following:\434\
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\433\The Trump-Ukraine Impeachment Inquiry Report: Report for the
H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in
Consultation with the H. Comm. on Oversight and Reform and the H. Comm.
on Foreign Affairs at 208, 116th Cong. (2019) (hereinafter ``Ukraine
Report'').
\434\The facts that follow constitute the ``key findings of fact''
set forth in the Ukraine Report. Id. at 34-36.
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Donald J. Trump, the 45th President of the United
States--acting personally and through his agents within and
outside of the U.S. government--solicited the interference of a
foreign government, Ukraine, in the 2020 U.S. presidential
election. The President engaged in this course of conduct for
the benefit of his reelection, to harm the election prospects
of a political opponent, and to influence our nation's upcoming
presidential election to his advantage. In so doing, the
President placed his personal political interests above the
national interests of the United States, sought to undermine
the integrity of the U.S. presidential election process, and
endangered U.S. national security.
In furtherance of this scheme, President Trump--
directly and acting through his agents within and outside the
U.S. government--sought to pressure and induce Ukraine's newly-
elected president, Volodymyr Zelensky, to publicly announce
unfounded investigations that would benefit President Trump's
personal political interests and reelection effort. To advance
his personal political objectives, President Trump encouraged
the President of Ukraine to work with his personal attorney,
Rudolph Giuliani.
As part of this scheme, President Trump, acting in
his official capacity and using his position of public trust,
personally and directly requested from the President of Ukraine
that the government of Ukraine publicly announce investigations
into (1) the President's political opponent, former Vice
President Joseph R. Biden, Jr. and his son, Hunter Biden, and
(2) a baseless theory promoted by Russia alleging that
Ukraine--rather than Russia--interfered in the 2016 U.S.
election. These investigations were intended to harm a
potential political opponent of President Trump and benefit the
President's domestic political standing.
To create additional leverage against Ukraine and
force them to open these investigations, President Trump
ordered the suspension of $391 million in vital military
assistance urgently needed by Ukraine, a strategic partner, to
resist Russian aggression. Because the aid was appropriated by
Congress, on a bipartisan basis, and signed into law by the
President, its expenditure was required by law. Acting directly
and through his subordinates within the U.S. government, the
President withheld from Ukraine this military assistance
without any legitimate foreign policy, national security, or
anticorruption justification. The President did so despite the
longstanding bipartisan support of Congress, uniform support
across federal departments and agencies for the provision to
Ukraine of the military assistance, and his obligations under
the Impoundment Control Act.
President Trump used the power of the Office of
the President and exercised his authority over the Executive
Branch, including his control of the instruments of the federal
government, to apply increasing pressure on the President of
Ukraine and the Ukrainian government to announce the
politically-motivated investigations desired by President
Trump. Specifically, to advance and promote his scheme, the
President withheld official acts of value to Ukraine and
conditioned their fulfillment on actions by Ukraine that would
benefit his personal political interests:
D President Trump--acting through agents within and
outside the U.S. government--conditioned a head of
state meeting at the White House, which the President
of Ukraine desperately sought to demonstrate continued
United States support for Ukraine in the face of
Russian aggression, on Ukraine publicly announcing the
investigations that President Trump believed would aid
his reelection campaign.
D To increase leverage over the President of Ukraine,
President Trump, acting through his agents and
subordinates, conditioned release of the vital military
assistance he had suspended to Ukraine on the President
of Ukraine's public announcement of the investigations
that President Trump sought.
D President Trump's closest subordinates and advisors
within the Executive Branch, including Acting Chief of
Staff Mick Mulvaney, Secretary of State Mike Pompeo,
Secretary of Energy Rick Perry, and other senior White
House and Executive Branch officials had knowledge of,
in some cases facilitated and furthered the President's
scheme, and withheld information about the scheme from
the Congress and the American public.
In directing and orchestrating this scheme to
advance his personal political interests, President Trump did
not implement, promote, or advance U.S. anti-corruption
policies. In fact, the President sought to pressure and induce
the government of Ukraine to announce politically-motivated
investigations lacking legitimate predication that the U.S.
government otherwise discourages and opposes as a matter of
policy in that country and around the world. In so doing, the
President undermined U.S. support of anticorruption reform and
the rule of law in Ukraine, and undermined U.S. national
security.
By withholding vital military assistance and
diplomatic support from a strategic foreign partner government
engaged in an ongoing military conflict illegally instigated by
Russia, President Trump compromised national security to
advance his personal political interests.
Faced with the revelation of his actions,
President Trump publicly and repeatedly persisted in urging
foreign governments, including Ukraine and China, to
investigate his political opponent. This continued solicitation
of foreign interference in a U.S. election, as well as
President Trump's other actions, present a clear and present
danger that the President will continue to use the power of his
office for his personal political gain.
D. PRESIDENT TRUMP'S CONDUCT MEETS EACH ELEMENT OF ABUSE OF POWER
The conduct set forth in the First Article of Impeachment
unquestionably constitutes an ``abuse of power'' as that term
was understood by the Framers. Indeed, it is falls within the
heartland of the concerns raised at the Constitutional
Convention as necessitating Presidential impeachment. It is the
judgment of the Committee that President Trump has therefore
committed ``high Crimes and Misdemeanors.''
1. President Trump Exercised Official Power in Soliciting and
Pressuring the Government of Ukraine to Publicly Announce Two
Investigations
As explained above, a President commits an impeachable
abuse of power where he exercises official power to obtain an
improper personal benefit, while ignoring or injuring the
national interest. The first requirement is satisfied here:
President Trump exercised official power, entrusted to him by
the Constitution, in soliciting and pressuring the Government
of Ukraine to announce investigations that would benefit his
reelection, harm the election prospects of a political
opponent, and influence the 2020 United States Presidential
election to his advantage.
This conclusion is straightforward. On his July 25, 2019
call with President Zelensky, President Trump was acting as our
Nation's head of state and chief diplomat.\435\ The call was
itself an official act rooted in President Trump's powers under
Article II of the Constitution. So, too, were many of the
President's other acts throughout this scheme. It was only by
virtue of his supervisory powers over the Executive Branch, as
well as his power to appoint and remove certain officials,\436\
that President Trump could order the Office of Management and
Budget to block or allow the release of Congressionally-
appropriated military and security assistance to Ukraine.
Similarly, it was only by virtue of his executive powers--
including his authority to ``receive Ambassadors and other
public Ministers'''\437\--that President Trump could offer and
then withhold a White House meeting (as well as the many other
official governmental acts involved in such a high-stakes
diplomatic visit). And it was only by virtue of his executive
authority that President Trump could fire U.S. Ambassador to
Ukraine Marie Yovanovitch (whom he knew would have stood in the
way of his corrupt scheme), direct other administration
officials in the execution of his agenda relating to Ukraine,
and instruct United States officials to cooperate with his
private attorney, Rudy Giuliani. The scheme or course of
conduct described in the first Article of Impeachment is shot
through with official acts.\438\
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\435\See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct.
2076, 2086 (2015); see also id. at 2099 (finding that the ``[e]arly
practice of the founding generation also supports th[e] understanding
of the President's ``role of chief diplomat'').
\436\See id. art. II, Sec. 2 (``The President shall . . . appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall be established
by Law.'').
\437\U.S. Const. art. II, Sec. 3.
\438\Those official acts include the President's public statements
openly and corruptly urging and soliciting Ukraine to undertake
investigations for his personal political benefit (which were made in
his capacity as President and expressly directed to a foreign nation),
as well as conduct undertaken by Mr. Giuliani while acting as the
President's agent and facilitated by the President's implied or express
direction that United States officials facilitate Mr. Giuliani's
efforts.
---------------------------------------------------------------------------
The official acts comprising the First Article of
Impeachment, moreover, had the natural and foreseeable effect
of obtaining a personal political benefit for President Trump.
On January 20, 2017, President Trump filed initial paperwork to
launch his re-election campaign with the Federal Election
Commission.\439\ On April 25, 2019, former Vice President Biden
publicly announced his campaign for the Democratic nomination
for President of the United States and launched his effort to
unseat President Trump in the 2020 election.\440\ President
Trump and former Vice President Biden were widely recognized as
political opponents for the 2020 United States Presidential
election. In using the powers of his office to solicit and
pressure the Government of Ukraine to publicly announce an
investigation related to former Vice President Biden and his
son--and into a discredited theory that Ukraine, not Russia,
interfered with the 2016 United States Presidential election--
President Trump sought an announcement that would help him
politically. By its very nature, and on its face, the
President's conduct thus involved an exercise of power to
obtain a personal political benefit.
---------------------------------------------------------------------------
\439\Donald J. Trump, FEC Form 99 Miscellaneous Text, Image No.
201701209041436569, filed January 20, 2017.
\440\Alexander Burns & Jonathan Martin, Joe Biden Announces 2020
Run for President, After Months of Hesitation, N.Y. Times, Apr. 25,
2019.
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Although there can be no doubt that the abuse of power set
forth in Article I involved the exercise of official power, it
is helpful to closely consider the scheme at issue, as well as
two of the means by which President Trump pursued it:
specifically, his solicitation and pressuring of the Government
of Ukraine to announce investigations that would result in a
personal political benefit.
a. The Scheme
Beginning in the Spring of 2019, President Trump and his
agents undertook a scheme to pressure the newly-elected
President of Ukraine to announce politically-motivated
investigations related to former Vice President Joe Biden and
the 2016 United States Presidential election. That scheme
included extensive efforts by the President's personal attorney
Mr. Giuliani, who sought to tarnish former Vice President Biden
and pressed Ukrainian officials to initiate the investigations.
Mr. Giuliani publicly confirmed that the President was aware of
his efforts, which were undertaken not as part of official U.S.
foreign policy but to help the President personally.\441\
---------------------------------------------------------------------------
\441\Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push for
Inquiries That Could Help Trump, N.Y. Times, May 9, 2019 (hereinafter
``Vogel Giuliani'') (reporting on interview with Giuliani) (``Somebody
could say it's improper. And this isn't foreign policy--I'm asking them
to do an investigation that they're doing already and that other people
are telling them to stop. And I'm going to give them reasons why they
shouldn't stop it because that information will be very, very helpful
to my client, and may turn out to be helpful to my government.'').
---------------------------------------------------------------------------
But the task of carrying out this scheme was not limited to
the President's personal attorney. On May 23, 2019, following
the inauguration of Ukrainian president Volodymyr Zelensky, the
President met with United States officials, including
Ambassador to the European Union Gordon Sondland, Special
Representative for Ukraine Negotiations Ambassador Kurt Volker,
and Secretary of Energy Rick Perry.\442\ These three officials,
who would later dub themselves the ``Three Amigos,'' reported
their favorable impressions of Ukraine's new president, who had
been elected on an anti-corruption platform, and recommended
that President Trump invite President Zelensky to the White
House.\443\ President Trump reacted negatively. He expressed
the view that Ukraine ``tried to take [him] down'' in 2016, and
told the Three Amigos to ``Talk to Rudy''--not U.S. diplomats
and experts--about Ukraine.\444\ Ambassador Sondland testified
that ``he understood the President's instruction to be a
directive to work with Mr. Giuliani if [the delegation] hoped
to advance relations with Ukraine.''\445\ Following that May 23
meeting, Mr. Giuliani made clear to Ambassadors Sondland and
Volker, ``who were directly communicating with the Ukrainians,
that a White House meeting would not occur until Ukraine
announced its pursuit of the two political
investigations.''\446\
---------------------------------------------------------------------------
\442\Ukraine Report at 16-17.
\443\Id.
\444\Id.
\445\Id. at 17.
\446\Id. at 19.
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With these directives in mind, Ambassadors Sondland and
Volker ``worked to obtain the necessary assurance from
President Zelensky that he would personally commit to initiate
the investigations in order to secure both'' the White House
call and meeting.\447\ On July 10, for example, ``Ambassador
Bolton hosted a meeting in the White House with two senior
Ukrainian officials, several American officials, including
Ambassadors Sondland and Volker, Secretary Perry, Dr. Fiona
Hill, Senior Director for Europe and Russia at the NSC, and Lt.
Col. Vindman.''\448\ When, as had become customary, the
Ukrainians asked about the ``long-delayed White House
meeting,'' Ambassador Sondland revealed ``an arrangement with
Acting Chief of Staff Mick Mulvaney to schedule the White House
visit after Ukraine initiated the `investigations.'''\449\
Despite Ambassador Bolton ending that meeting, Ambassador
Sondland ``ushered many of the attendees to the Ward Room
downstairs to continue their discussion'' and, at that meeting,
Ambassador Sondland explained again ``that he had an agreement
with Mr. Mulvaney that the White House visit would come only
after Ukraine announced the Burisma/Biden and 2016 Ukraine
election interference investigations.''\450\
---------------------------------------------------------------------------
\447\Id. at 19.
\448\Id.
\449\Id.
\450\Id. ``Following these discussions, Dr. Hill reported back to
Ambassador Bolton, who told her to `go and tell [the NSC Legal Advisor]
that I am not part of whatever drug deal Sondland and Mulvaney are
cooking up on this.' Both Dr. Hill and Lt. Col. Vindman separately
reported the incident to the NSC Legal Advisor.'' Id.
---------------------------------------------------------------------------
Over the next two weeks, ``Ambassadors Sondland and Volker
worked closely with Mr. Giuliani and senior Ukrainian and
American officials to ensure that,'' on the telephone call
between President Trump and President Zelensky, President
Zelensky would promise to undertake the investigations that Mr.
Giuliani had been pushing on the President's behalf.\451\ As
Ambassador Sondland testified, ``Mr. Giuliani was expressing
the desires of the President of the United States, and we knew
these investigations were important to the President.''\452\
The Ukrainians were reluctant to get involved, noting that they
did not want to be ``an instrument in Washington domestic,
reelection politics.''\453\ Mr. Giuliani and the American
officials made clear, however, that there would be no White
House meeting without the investigations.
---------------------------------------------------------------------------
\451\Id. at 18-20.
\452\Sondland Hearing Tr. at 18.
\453\Ukraine Report at 94.
---------------------------------------------------------------------------
b. The Solicitation
President Trump's official act of soliciting the
investigations is apparent on the face of the transcript of his
July 25 call with President Zelensky.\454\ On that call, he
requested that President Zelensky investigate the widely
debunked conspiracy theory that the Ukrainian government--and
not Russia--was behind the hack of Democratic National
Committee (DNC) computer network in 2016. According to this
conspiracy theory, the American cybersecurity firm CrowdStrike
moved a DNC server to Ukraine to prevent United States law
enforcement from examining them. Here is how President Trump
presented his solicitation:
---------------------------------------------------------------------------
\454\The White House, Memorandum of Telephone Conversation:
Telephone Conversation with President Zelenskyy of Ukraine 3 (July 25,
2019) (hereinafter ``July 25 Call Record''). That said, President
Trump's solicitation was not confined to the July 25 call, but rather
was reiterated and conveyed continuously by his agents within and
outside the United States Government (including Mr. Giuliani). See,
e.g., Ukraine Report at 34-35, 147-49.
I would like you to find out what happened with this
whole situation with Ukraine, they say Crowdstrike . .
. I guess you have one of your wealthy people . . . The
server, they say Ukraine has it. There are a lot of
things that went on, the whole situation. I think
you're surrounding yourself with some of the same
people. I would like to have the Attorney General call
you or your people and I would like you to get to the
bottom of it. As you saw yesterday, that whole nonsense
ended with a very poor performance by a man named
Robert Mueller, an incompetent performance, but they
say a lot of it started with Ukraine. Whatever you can
do, it's very important that you do it if that's
possible.\455\
---------------------------------------------------------------------------
\455\July 25 Call Record at 3.
Shortly thereafter, on the same phone call, President Trump
expressly solicited an investigation into former Vice President
Biden and his son. In so doing, he referenced former Vice
President's Biden involvement in the removal of a corrupt
---------------------------------------------------------------------------
former Ukrainian prosecutor:
The other thing, There's a lot of talk about Biden's
son, that Biden stopped the prosecution and a lot of
people want to find out about that so whatever you can
do with the Attorney General would be great. Biden went
around bragging that he stopped the prosecution so if
you can look into it . . . It sounds horrible to
me.\456\
---------------------------------------------------------------------------
\456\Id. at 4.
---------------------------------------------------------------------------
c. The Pressure Campaign
As set forth in the First Article of Impeachment,
``President Trump--acting both directly and through his agents
within and outside the United States Government--conditioned
two official acts on the public announcements that he had
requested.''\457\ These two official acts were: (1) the release
of vital military and security assistance to Ukraine that
President Trump had ordered suspended; and (2) a valuable,
strategically important head of state meeting with President
Trump at the White House.
---------------------------------------------------------------------------
\457\H. Res. 755, 116th Cong. (2019).
---------------------------------------------------------------------------
There is overwhelming evidence that President Trump made
these official acts conditional on his sought-after
announcements in order to pressure Ukraine. It is also clear
that Ukrainian officials came to understand that they were
being pressured in this manner. That evidence is
comprehensively explained in the Ukraine Report; we will
briefly summarize it here.
i. The Military and Security Assistance
On July 18, 2019, OMB notified the agencies that President
Trump had directed a hold on military and security assistance
funding for Ukraine. No explanation was provided for that
hold.\458\ This was exceedingly irregular, given that the
assistance had bipartisan Congressional support, was supported
by the President's national security agencies and advisors
(including the State Department, Department of Defense, and
National Security Council), and was widely perceived as crucial
to both Ukrainian and American security. Moreover, there were
substantial concerns about the legality of the hold under the
Impoundment Control Act.\459\ Adding to the irregularity, a
career civil servant at OMB with decades of experience in this
arena (Mark Sandy) was deprived of sign off authority, which
was shifted to a political appointee of President Trump
(Michael Duffey) who had virtually no relevant experience or
expertise and no history or stated interest in managing such
issues.\460\
---------------------------------------------------------------------------
\458\Ukraine Report at 72.
\459\Id. at 67-70.
\460\Id. at 78-80.
---------------------------------------------------------------------------
As early as July 25--the day that President Trump spoke by
phone to President Zelensky--Ukrainian officials recognized and
grew nervous about the delay in receiving their military and
security assistance. That same day, Ukrainian officials
contacted their American counterparts in Washington, D.C. to
express those concerns.\461\ Specifically, the Department of
Defense received two e-mails from the State Department
revealing that the Ukrainian Embassy was ``asking about the
security assistance'' and knew about the ``[security
assistance] situation to an extent.''\462\ Former Ukrainian
Deputy Foreign Minister, Olena Zerkal, also reported that her
office, and the Ukrainian Presidential Administration, received
a diplomatic cable from Ukrainian officials in Washington the
week of the July 25 call, stating that the Trump administration
had frozen military aid for Ukraine; she elaborated: ``We had
this information. . . . It was definitely mentioned there were
some issues.''\463\
---------------------------------------------------------------------------
\461\Id. at 22.
\462\Id. at 81, 173 n.451.
\463\Andrew E. Kramer, Ukraine Knew of Aid Freeze in July, Says Ex-
Top Official in Kyiv, N.Y. Times, Dec. 3, 2019.
---------------------------------------------------------------------------
In the weeks that followed, President Trump's top officials
came to understand and communicated to Ukrainian officials that
release of the assistance was in fact conditioned on President
Zelensky publicly announcing the two investigations that
President Trump had requested on his July 25 call. For example,
on August 22, Ambassador Sondland e-mailed Secretary Pompeo,
copying the State Department's Executive Secretary, Lisa Kenna,
that to break the ``logjam'' on the assistance, President
Zelensky should ``look [President Trump] in the eye'' and tell
him he would ``move forward publicly and with confidence on
those issues of importance to Potus and to the U.S.''\464\
Ambassador Sondland testified that the ``issues of importance
to Potus''' were the two investigations.\465\
---------------------------------------------------------------------------
\464\Ukraine Report at 127, 190 n.843 (quoting from written
statement of Ambassador Sondland in Impeachment Inquiry: Gordon
Sonland: Hearing Before the H. Perm. Select Comm. on Intelligence,
116th Cong. (Nov. 20, 2019)).
\465\Id. at 127; see also Sondland Hearing Tr. at 104.
---------------------------------------------------------------------------
Around this time, according to his testimony, Lt. Col.
Vindman ``was getting questions from Ukrainians about the
status of the hold on security assistance.''\466\ By August 28,
after Politico ``first reported that President Trump had
implemented a hold on nearly $400 million of U.S. military
assistance to Ukraine that had been appropriated by
Congress,''\467\ Ukrainian officials ``expressed alarm to their
American counterparts.''\468\ Ambassador Taylor states that the
Ukrainians were ``just desperate'' to receive the assistance,
and that ``American officials could provide little
reassurance.''\469\
---------------------------------------------------------------------------
\466\Ukraine Report at 82.
\467\Caitlin Emma & Connor O'Brien, Trump Holds Up Ukraine Military
Aid Meant to Confront Russia, Politico, Aug. 28, 2019.
\468\Ukraine Report at 129.
\469\Id.
---------------------------------------------------------------------------
On September 1, Ambassador Sondland stated to President
Zelensky's aide, Mr. Yermak, that ``the resumption of U.S. aid
would likely not occur until Ukraine took some kind of action
on the public statement that we had been discussing for many
weeks.''\470\ National Security Council senior director Timothy
Morrison also testified that he recalled this interaction.
According to Mr. Morrison, he saw Ambassador Sondland and Mr.
Yermak have a private conversation and, immediately after their
conversation ended, Ambassador Sondland walked over to Mr.
Morrison and reported that he had communicated to Mr. Yermak
that a statement about the investigations was needed ``to
obtain release of the aid.''\471\ That same day, Ambassador
Taylor texted Ambassador Sondland: ``Are we now saying that
security assistance and WH meeting are conditioned on
investigations?'' Ambassador Sondland then confirmed to
Ambassador Taylor over the phone that President Trump wanted
President Zelensky ``in a public box,'' making a ``public
statement'' about the investigations that President Trump had
requested on July 25. Ambassador Sondland agreed that the
United States position was that if President Zelensky did not
announce those investigations, Ukraine was not ``going to get''
the assistance.\472\
---------------------------------------------------------------------------
\470\Id. at 132.
\471\Id. at 180-81.
\472\Id. at 133-34.
---------------------------------------------------------------------------
On September 5, the Washington Post published an editorial
exposing President Trump's scheme, entitled ``Trump Tries to
Force Ukraine to Meddle in the 2020 Election.''\473\ Two days
later, on September 7, Ambassador Sondland called Mr. Morrison
to report on a call he had just concluded with President Trump.
Ambassador Sondland told Mr. Morrison that ``there was no quid
pro quo, but President Zelensky must announce the opening of
the investigations and he should want to do it.''\474\ The
following day, on September 8, Ambassador Sondland conveyed via
text message to Ambassadors Volker and Taylor, too, that he had
spoken with President Trump: ``Guys multiple convos with Ze,
Potus. Lets talk.''\475\ On the phone with Ambassador Taylor,
Ambassador Sondland then ``confirmed that he had talked to
President Trump'' and that ``President Trump was adamant that
President Zelensky himself had to clear things up and do it in
public. President Trump said it was not a quid pro quo.''\476\
Ambassador Sondland added that, following his call with
President Trump, he had told President Zelensky and Mr. Yermak
that, ``although this was not a quid pro quo, if President
Zelensky did not clear things up in public, we would be at a
stalemate.'' In response, President Zelensky agreed to make a
public statement announcing the investigations in an interview
on CNN.\477\ Both Ambassadors Taylor and Sondland confirmed
that the term ``stalemate'' referred to the hold on the
security assistance to Ukraine.\478\ Early the next morning on
September 9, Ambassador Taylor texted Ambassadors Sondland and
Volker: ``As I said on the phone, I think it's crazy to
withhold security assistance for help with a political
campaign.''
---------------------------------------------------------------------------
\473\Editorial, Trump Tries to Force Ukraine to Meddle in the 2020
Election, Wash. Post, Sept. 5, 2019.
\474\Ukraine Report at 134.
\475\Id. at 135.
\476\Id. at 135. Ambassador Sondland's recitation of his call with
President Trump is the only evidence that President Trump suggested
this was ``not a quid pro quo.'' Moreover, Ambassador Sondland
testified that President Trump made that statement, unprompted, on
September 7--only after the White House had learned of a whistleblower
complaint regarding the July 25 call and President Trump's efforts to
pressure Ukraine, and the Washington Post had reported about the
President's pressure campaign on Ukraine. In addition, President Trump
immediately followed his stated denial of a quid pro quo by demanding
that President Zelensky still make a public announcement, while the
military assistance remained on an unexplained hold. For these reasons,
and those detailed in the Ukraine Report, President Trump's self-
serving denial of conditionality after he had been caught is not
credible.
\477\Id. at 135.
\478\Id.
---------------------------------------------------------------------------
Ultimately, the connection between the assistance and the
announcements was apparent to the relevant parties--including
United States officials working with Ukraine and senior
Ukrainian officials. Ambassador Sondland and Mr. Holmes both
testified that President Trump's use of military and security
assistance to secure his sought-after announcements became as
clear as ``two plus two equals four.''\479\ Moreover, at a
press conference on October 17, Acting White House Chief of
Staff Mick Mulvaney confirmed this equation. According to Mr.
Mulvaney, President Trump ``[a]bsolutely'' mentioned
``corruption related to the DNC server'' in connection with the
security assistance. Mr. Mulvaney also stated that the server
was part of ``why we held up the money.'' After a reporter
attempted to clarify this explicit acknowledgement of a quid
pro quo, Mr. Mulvaney replied: ``We do that all the time with
foreign policy.'' He added, ``I have news for everybody: get
over it. There is going to be political influence in foreign
policy.''\480\
---------------------------------------------------------------------------
\479\Ukraine Report at 23; Sondland Hearing Tr. at 58.
\480\Ukraine Report at 139; The White House, Press Briefing by
Acting Chief of Staff Mick Mulvaney (Oct. 17, 2019).
---------------------------------------------------------------------------
ii. The White House Visit
Turning to the White House visit, documentary evidence and
testimony from multiple witnesses confirms that this official
act--like the release of assistance--was conditional on Ukraine
announcing investigations into former Vice President Biden and
interference in the 2016 election.
As discussed above, prior to the July 25 call, President
Trump's personal attorney repeatedly urged Ukraine to pursue
investigations into ``two matters of intense interest'' to his
client, President Trump: the ``involvement of the former Vice
President Joseph R. Biden Jr.'s son'' on the board of a
Ukrainian gas company and 2016 election interference.\481\ In
those statements, Mr. Giuliani clarified that ``my only client
is the President of the United States,'' and that this wasn't
``foreign policy,'' but rather ``information that will be very,
very helpful'' to President Trump.\482\ Ambassadors Sondland
and Volker were also enlisted by President Trump to work with
Mr. Giuliani and ``obtain the necessary assurance from
President Zelensky that he would personally commit to initiate
the investigations,''\483\ and each had delivered their
messages to the Ukrainians prior to the call. On July 2 in
Toronto, Ambassador Volker ``conveyed the message directly to
President Zelensky, specifically referencing the `Giuliani
factor.'''\484\ On July 19, Ambassador Sondland emailed several
top Administration officials, confirming that Ambassador
Sondland had ``talked to Zelensky just now,'' and that
President Zelensky was ``prepared to receive Potus'' call'' and
``assure [President Trump] that he intends to run a fully
transparent investigation and will `turn over every
stone.'''\485\ On the morning of the July 25 call, Ambassador
Volker texted President Zelensky's aide: ``Heard from White
House--assuming President Z convinces trump he will
investigate/`get to the bottom of what happened' in 2016, we
will nail down date for visit to Washington. Good luck!''\486\
---------------------------------------------------------------------------
\481\Vogel Giuliani
\482\Id.
\483\Id. at 18.
\484\Id. at 19.
\485\Sondland Opening Statement at 21, Ex. 4.
\486\Ukraine Report at 20.
---------------------------------------------------------------------------
On the July 25 call itself, when President Zelensky thanked
President Trump for ``great support in the area of defense''
and raised the matter of purchasing anti-tank missiles from the
United States, President Trump responded, ``I would like you to
do us a favor though.'' That ``favor,'' President Trump then
made clear, was for Ukraine to investigate the 2016 United
States Presidential election, as well as former Vice President
Biden and his son. These were the same two investigations that
Mr. Giuliani had repeatedly, publicly stated in the preceding
months were of ``intense interest'' to President Trump.
President Zelensky understood what President Trump meant about
the connection between a meeting and these investigations: ``I
also wanted to thank you for your invitation to visit the
United States, specifically Washington D.C. On the other hand,
I also want to ensure [sic] you that we will be very serious
about the case and will work on the investigation.''\487\
President Zelensky also confirmed that his staff assistant had
spoken to Mr. Giuliani, and President Trump reaffirmed that Mr.
Giuliani ``very much knows what's going on.''
---------------------------------------------------------------------------
\487\July 25 Call Record at 5.
---------------------------------------------------------------------------
The pressure for the investigations continued after the
call, as well. Several weeks later, on August 9, when
discussing possible dates for a White House visit, Ambassador
Sondland wrote to Ambassador Volker: ``I think potus really
wants the deliverable.'' The next day, President Zelensky's
aide texted Ambassador Volker about setting a date for the
meeting before making a statement announcing the
investigations, stating: ``I think it's possible to make this
declaration and mention all these things. Which we discussed
yesterday. But it will be logic [sic] to do after we receive a
confirmation of date. We inform about date of visit and about
our expectations and our guarantees for future visit.''
Ambassador Volker replied: ``Let's iron out statement and use
that to get date and then PreZ [Zelensky] can go forward with
it?'' President Zelensky's aide responded, ``[o]nce we have a
date, will call for a press briefing, announcing upcoming visit
and outlining vision for the reboot of US-UKRAINE relationship,
including among other things Burisma and election meddling in
investigations.''\488\ The day after that, Ambassador Sondland
emailed Secretary of State Pompeo: ``Kurt & I negotiated a
statement from Ze [Zelensky] to be delivered for our review in
a day or two. The contents will hopefully make the boss [i.e.,
President Trump] happy enough to authorize an
invitation.''\489\
---------------------------------------------------------------------------
\488\Text Message from Yermak to Ambassador Volker (Aug. 10, 2019,
5:42 PM).
\489\E-mail from Ambassador Sondland to Thomas Brechbuhl and Lisa
Kenna (Aug. 11, 2019, 10:31 AM) (forwarded to Secretary of State
Pompeo).
---------------------------------------------------------------------------
Based on this and other evidence, it is clear that
Ambassador Sondland spoke truthfully when he stated: ``Was
there a quid pro quo? As I testified previously with regard to
the requested White House call and the White House meeting, the
answer is yes.''\490\
---------------------------------------------------------------------------
\490\ Sondland Hearing Tr. at 26. While President Trump and
President Zelensky met at the U.N. General Assembly on September 25, no
White House visit date has been set. The fact of the White House visit,
as confirmed in the Ukraine Report, is ``critical'' to President
Zelensky, to show ``U.S. support at the highest levels.'' Ukraine
Report at 84 & n.456 (quoting Holmes Dep. Tr. at 18).
---------------------------------------------------------------------------
By making military and security assistance and a White
House meeting conditional on announcing investigations that
would benefit him politically, President Trump used official
power to pressure Ukraine to make those announcements. Ukraine
is at war with Russia and more than 13,000 Ukrainians have died
in that conflict.\491\ Ukraine relies heavily on the United
States for military and security assistance and support on the
global stage.\492\ But as Ambassador Taylor described in his
deposition, Ukraine is also ``a young nation struggling to
break free of its past, hopeful their new government will
finally usher in a new Ukraine, proud of independence from
Russia eager to join Western institutions and enjoy a more
secure and prosperous life.''\493\ That is why, for weeks,
Ukrainian officials expressed concern about President Trump's
demands, advising United States officials that they did not
want to be an ``instrument in Washington domestic, reelection
politics.''\494\ As Ukrainian Prosecutor General Ruslan
Ryaboshapka stated, in an apparent reference to President
Trump's demand for Ukrainian interference in United States
elections, ``[i]t's critically important for the west not to
pull us into some conflicts between their ruling elites, but to
continue to support so that we can cross the point of no
return.''\495\ Nonetheless, as President Trump's pressure
campaign continued, and as Ukraine contemplated the loss of
military and security assistance necessary to defend itself in
active hostilities with Russia, the Ukrainians became
desperate.\496\ So desperate, in fact, that, as Ambassador
Sondland told the President, President Zelensky was willing to
do anything that President Trump asked of him.\497\ And, as set
forth above, President Zelensky capitulated, and ultimately
agreed to publicly announce the investigations in an interview
on CNN.\498\ President Zelensky canceled that interview only
after President Trump's scheme was exposed and the assistance
was released.\499\
---------------------------------------------------------------------------
\491\John M. Donnelly, Ukrainian Lives Hung in Balance as Trump
Held Up Aid, Roll Call, Oct. 24, 2019.
\492\See id.
\493\Taylor Dep. Tr. at 42-43.
\494\See Text Message from Ambassador William Taylor to Ambassador
Sondland (July 20, 2019, 1:45 AM).
\495\Roman Olearchyk, Cleaning Up Ukraine in the Shadow of Trump,
Fin. Times, Nov. 27, 2019 (interview with Ruslan Ryaboshapka)
(hereinafter ``Olearchyk'').
\496\See Taylor Dep. Tr. at 137-38 (``Mr. Yermak and others were
trying to figure out why this was . . . . They thought that there must
be some rational reason for this being held up, and they just didn't--
and maybe Washington they didn't understand how important this
assistance was to their fight and to their armed forces. And so maybe
they could figure--so they were just desperate.'').
\497\Hill-Holmes Hearing Tr. 24, 54.
\498\Impeachment Inquiry: Ambassador William Taylor and Mr. George
Kent: Hearing Before the H. Perm. Select Comm. on Intelligence, 116th
Cong. 41 (Nov. 13, 2019).
\499\Andrew E. Kramer, Ukraine's Zelensky Bowed to Trump's Demands,
Until Luck Spared Him, N.Y. Times, Nov. 7, 2019.
---------------------------------------------------------------------------
To be sure, President Zelensky has subsequently denied that
President Trump pressured him.\500\ But although President
Zelensky did not publicly announce the investigations, the
power disparity between the United States and Ukraine remains
unchanged, and President Zelensky thus remains under pressure
from President Trump to this day. As Mr. Holmes testified,
there are still things the Ukrainians want and need from
President Trump, including a meeting with the President in the
Oval Office; for these reasons, Mr. Holmes explained,
---------------------------------------------------------------------------
\500\Tara Law, ``Nobody Pushed Me.'' Ukrainian President Denies
Trump Pressured Him to Investigate Biden's Son, Time, Sept. 25, 2019.
I think [the Ukrainians are] being very careful. They
still need us now going forward. In fact, right now,
President Zelensky is trying to arrange a summit
meeting with President Putin in the coming weeks, his
first face to face meeting with him to try to advance
the peace process. He needs our support. He needs
President Putin to understand that America supports
Zelensky at the highest levels. So this doesn't end
with the lifting of the security assistance hold.
Ukraine still needs us, and as I said, still fighting
this war this very day.\501\
---------------------------------------------------------------------------
\501\Ukraine Report at 146-47.
Ambassador Taylor likewise confirmed that, as President
Zelensky is currently engaging in negotiations with President
Putin concerning the war on their border, Russia is ``watching
closely to gauge the level of American support'' for
Ukraine.\502\ The United States' public and unwavering support
is therefore critical to Ukraine in approaching those
negotiations from a position of strength. Indeed, just last
week on December 9, President Zelensky met with President Putin
to discuss and negotiate an end to the war. President
Zelensky's team was ``discouraged by the absence of expected
support'' from President Trump in advance of that meeting, ``as
well as the lack of follow-through from the White House on a
promised Oval Office meeting.\503\ Moreover, the next day, on
December 10, President Trump hosted the Russian foreign
minister in the Oval Office.\504\
---------------------------------------------------------------------------
\502\Id. at 129.
\503\Kenneth P. Vogel & Andrew E. Kramer, Ukraine's Leader, Wiser
to Washington, Seeks New Outreach to Trump, N.Y. Times (Dec. 13, 2019).
\504\Id.
---------------------------------------------------------------------------
In addition, although the majority of the military and
security assistance was ultimately released, certain of the
funds to Ukraine remain unobligated,\505\ and, moreover, in
order to ensure that Ukraine ``did not permanently lose $35
million of the critical military assistance frozen by the White
House,'' Congress had to pass a provision to ensure that the
military assistance could be spent.\506\ ``As of November 2019,
Pentagon officials confirmed that the $35 million in security
assistance originally held by the President and extended by
Congress had still yet to be disbursed,'' and would not provide
an explanation for the delay.\507\
---------------------------------------------------------------------------
\505\Molly O'Toole & Sarah D. Wire, $35 Million in Pentagon Aid
hasn't Reached Ukraine, Despite White House Assurances, Los Angeles
Times, Nov. 11, 2019.
\506\Ukraine Report at 145. Notably, ``Ms. Cooper testified that
such an act of Congress was unusual--indeed, she had never heard of
funding being extended in this manner.'' Id.
\507\Id.
---------------------------------------------------------------------------
The evidence thus demonstrates that President Trump used
the powers of his office to make Ukraine an offer it had no
real choice but to accept: Help me get re-elected or you will
not get the military and security assistance and diplomatic
support you desperately need from the United States of America.
In other words, under these circumstances, it is understandable
that President Zelensky has sought to serve his national
interest by avoiding any statement or confession that might
offend President Trump and also demonstrate his own weakness in
dealings with the United States and on the world stage. But the
record supports only one conclusion. President Trump took
advantage of Ukraine's vulnerability and used his high office
to solicit and pressure Ukraine to announce criminal
investigations into a United States citizen. These
investigations would clearly help President Trump's re-election
campaign and harm a political opponent.
2. President Trump Exercised the Powers of His Office With the Corrupt
Motive of Obtaining a Personal Political Benefit
In exercising official power to obtain a personal benefit,
the President acted with motives forbidden by the Constitution.
The first article of impeachment thus states: ``President Trump
engaged in this scheme or course of conduct for corrupt
purposes in pursuit of personal political benefit.''\508\
---------------------------------------------------------------------------
\508\H. Res. 755, 116th Cong. art. I (2019).
---------------------------------------------------------------------------
To evaluate whether President Trump acted in pursuit of
personal political advantage, the Committee has carefully
considered the full evidentiary record, as well as arguments
put forth by the Minority in its ``Report of Evidence in the
Democrats'' Impeachment Inquiry in the House of
Representatives'' (the ``Minority'' or the ``Minority Report'')
seeking to demonstrate that the President acted in pursuit of
legitimate policy goals.\509\ Consistent with past practice and
constitutional requirements, the Committee has focused not on
reasons that could have motivated the President's conduct, but
rather on what the record shows about his actual motives. After
all, ``[t]he Framers designed impeachment to root out abuse and
corruption, even when a President masks improper intent with
cover stories.''\510\ The question is therefore whether ``the
evidence tells a story that does not match the [asserted]
explanation.''\511\
---------------------------------------------------------------------------
\509\See Ukraine Report at 47-49.
\510\Id. at 47.
\511\Dep't of Com. v. New York, 139 S. Ct. 2551, 2575 (2019).
---------------------------------------------------------------------------
a. The July 25 Call and its Background
On President Trump's July 25 phone call with President
Zelensky, President Trump referenced two very specific
investigations.\512\ Then, in describing who he wanted Ukraine
to investigate, President Trump mentioned only two people by
name: former Vice President Biden and his son.\513\ He also
referred more generally to investigating the 2016 United States
Presidential election, but reserved specificity for the
Bidens.\514\ He used their name three times on the call.
---------------------------------------------------------------------------
\512\July 25 Call Record at 3.
\513\Id. at 3-4.
\514\Id.
---------------------------------------------------------------------------
Any presumptions of good faith that the President might
normally enjoy must be suspended when he calls a foreign leader
and asks that leader to investigate a United States citizen who
is also an announced candidate in the primaries for the next
Presidential election. To be sure, the call summary ``contains
no reference to 2020 or President Trump's reelection
bid.''\515\ But for good reason, multiple officials on the call
immediately understood that President Trump was soliciting
President Zelensky to announce an investigation into his
political opponent. As Lieutenant Colonel Alexander Vindman
testified, ``I thought it was wrong. I thought it was wrong for
the President of the United States to call for an investigation
of--call a foreign power to investigate a U.S. citizen.''\516\
Jennifer Williams, an advisor to Vice President Michael Pence,
similarly testified that ``it struck me as unusual and
inappropriate.''\517\ She later added, ``the references to
specific individuals and investigations, such as former Vice
President Biden and his son, struck me as political in
nature.''\518\
---------------------------------------------------------------------------
\515\Republican Staff of the H. Perm. Select Comm. on Intelligence,
116th Cong., Rep. on Evidence in the Democrats' Impeachment Inquiry in
the House of Representatives 12 (Comm. Print 2019) (hereinafter
``Minority Report'').
\516\Vindman Dep. Tr. at 152; see also Impeachment Inquiry:
Jennifer Williams and Alexander Vindman: Hearing Before the H. Perm.
Select Comm. on Intelligence, 116th Cong. 19 (Nov. 19, 2019) (``On July
25th, 2019, the call occurred. I listened in on the call in the
Situation Room with White House colleagues. I was concerned by the
call. What I heard was inappropriate, and I reported my concerns to Mr.
Eisenberg. It is improper for the President of the United States to
demand a foreign government investigate a U.S. citizen and a political
opponent. I was also clear that if Ukraine pursued an investigation--it
was also clear that if Ukraine pursued an investigation into the 2016
elections, the Bidens and Burisma, it would be interpreted as a
partisan play.'').
\517\Williams Dep. Tr. at 149.
\518\Vindman-Williams Hearing Tr. at 34.
---------------------------------------------------------------------------
Events leading up to the July 25 call strongly support Ms.
Williams's concern that President Trump's request was
``political in nature.'' On May 2, 2019, President Trump
retweeted a New York Times article entitled Biden Faces
Conflict of Interest Questions That Are Being Promoted by Trump
and Allies.\519\ That article concluded that Mr. Giuliani's
efforts underscored ``the Trump campaign's concern about the
electoral threat from the former vice president's presidential
campaign'' and noted that ``Mr. Giuliani's involvement raises
questions about whether Mr. Trump is endorsing an effort to
push a foreign government to proceed with a case that could
hurt a political opponent at home.''\520\ On May 9, 2019, it
was reported that President Trump's private lawyer, Mr.
Giuliani, planned to meet with President Zelensky ``to urge him
to pursue inquiries that allies of the White House contend
could yield new information about two matters of intense
interest to Mr. Trump.''\521\ Those matters were the same two
investigations that President Trump raised on his July 25
call.\522\ And as Mr. Giuliani stated in early May, ``this
isn't foreign policy.''\523\ Instead, Mr. Giuliani was seeking
information that ``will be very, very helpful to my client,''
namely ``the President of the United States.''\524\ Again on
May 9, Mr. Giuliani stated on Fox News, ``I guarantee you, Joe
Biden will not get to election day without this being
investigated.''\525\ The next day, in an interview, upon
learning that Mr. Giuliani was traveling to Ukraine to pursue
investigations, President Trump responded, ``I will speak to
him about it before he leaves.''\526\
---------------------------------------------------------------------------
\519\Donald J. Trump (@realDonaldTrump), Twitter (May 2, 2019, 6:21
AM) (retweeting Kenneth P. Vogel & Iuliia Mendel, Biden Faces Conflict
of Interest Questions That Are Being Promoted by Trump and Allies, N.Y.
Times, May 1, 2019) (online and searchable at http://
www.trumptwitterarchive.com/archive).
\520\ Vogel & Mendel, Biden Faces Conflict of Interest Questions.
\521\See Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push
for Inquiries That Could Help Trump, N.Y. Times, May 9, 2019.
\522\See id.
\523\Id.
\524\In this interview, Mr. Giuliani stated: ``My only client is
the president of the United States . . . He's the only one I have an
obligation to report to.'' Id. He also stated that the information he
sought to gather ``may turn out to be helpful to my government''--
confirming that advancing his client's interests was all that mattered,
and any incidental relation to United States public policy was
secondary and incidental. See id.
\525\Ian Schwartz, Giuliani: ``Massive Collusion'' Between DNC,
Obama Admin, Clinton People & Ukraine to Create False Info About Trump,
Real Clear Politics, May 10, 2019.
\526\Andrew Restuccia et al., Transcript: Politico Interviews
President Donald Trump on Joe Biden, Impeachment, Bill Barr, North
Korea, Politico, May 10, 2019.
---------------------------------------------------------------------------
Over the months that followed, Mr. Giuliani aggressively
pursued his efforts to get Ukraine to investigate Mr. Biden.
During these efforts--and subsequently--he claimed to act on
behalf of his client, President Trump. On October 30, 2019, he
tweeted, ``All of the information I obtained came from
interviews conducted as . . . private defense counsel to POTUS,
to defend him against false allegations.''\527\ On November 6,
2019, he tweeted, ``The investigation I conducted concerning
2016 Ukrainian collusion and corruption, was done solely as a
defense attorney to defend my client against false charges . .
.''\528\ The Ukraine Report observes, ``Numerous U.S.
officials, including Ambassadors Sondland, Volker, and Bolton,
as well as Lt. Col. Vindman and others, were well aware of Mr.
Giuliani's efforts to push Ukraine to pursue these political
investigations.''\529\
---------------------------------------------------------------------------
\527\Rudolph Giuliani (@RudyGiuliani), Twitter (Oct. 30, 2019, 3:15
PM), https://twitter.com/RudyGiuliani/status/1189667099871981573;
Rudolph Giuliani (@RudyGiuliani), Twitter (Oct. 30, 2019, 3:15 PM),
https://twitter.com/RudyGiuliani/status/1189667101079932928.
\528\Rudolph Giuliani (@RudyGiuliani), Twitter (Nov. 6, 2019, 12:43
PM), https://twitter.com/RudyGiuliani/status/1192180680391843841.
\529\Ukraine Report at 90.
---------------------------------------------------------------------------
As Mr. Giuliani worked hard to advance his client's
personal and political interests--and not ``foreign policy''--
President Trump also required United States officials
responsible for Ukraine to ``talk with Rudy.''\530\ For
example, Ambassador Sondland recalled that during a meeting in
the Oval Office on May 23 with the U.S. officials who had
attended the Ukrainian inauguration, President Trump ``just
kept saying: Talk to Rudy, talk to Rudy.''\531\ Ambassador
Sondland explained that they ``understood that talk with Rudy
meant talk with Mr. Rudy Giuliani, the president's personal
lawyer,'' and ``if we did not talk to Rudy, nothing would move
forward on Ukraine.''\532\ President Trump thus directed key
U.S. officials to coordinate with and carry out the requests of
his private lawyer, who was acting ``solely'' as President
Trump's ``defense attorney,'' regarding Ukraine.\533\
---------------------------------------------------------------------------
\530\See Sondland Hearing Tr. at 4.
\531\Sondland Dep. Tr. at 61-62.
\532\Sondland Hearing Tr. at 21, 71.
\533\Jordan Fabian, Giuliani Says Ukraine Efforts `Solely' for
Trump's Legal Defense, Bloomberg, Nov. 6, 2019.
---------------------------------------------------------------------------
Mr. Giuliani's importance was not lost on the Ukrainians.
By July 10, 2019, President Zelensky's top aide came to
appreciate ``that the key for many things is Rudi [sic] and I
ready to talk with him at any time,''\534\ and, as set forth
above, key U.S. officials worked with Mr. Giuliani to convey
messages to the Ukrainians and prepare President Zelensky for
his July 25 call. Thus, on the July 25 call, President Zelensky
preemptively mentioned that ``we are hoping very much that Mr.
Giuliani will be able to travel to Ukraine and we will meet
once he comes to Ukraine.''\535\ President Trump replied, ``I
would like him to call you. I will ask him to call you along
with the Attorney General. Rudy very much knows what's
happening and he is a very capable guy. If you could speak to
him that would be great.''\536\ Two sentences later, President
Trump turned directly to his request that President Zelensky
announce an investigation into the Bidens--and then, later in
their discussion, confirmed that ``I will have Mr. Giuliani
give you a call and I am also going to have Attorney General
Barr call . . .''\537\ The call transcript thus confirms that
President Trump saw Mr. Giuliani as his point person for
organizing an investigation into the Bidens and the 2016
election, and that President Zelensky knew of Mr. Giuliani's
role. Once again, it is therefore noteworthy that Mr. Giuliani
has stated emphatically that he acted ``solely'' to advance his
client's own interests--and that he was not engaged in
``foreign policy.''\538\
---------------------------------------------------------------------------
\534\Text Message from Yermak to Ambassador Volker (July 10, 2019,
4:06 PM).
\535\July 25 Call Record at 3.
\536\Id. at 3-4.
\537\Id. at 4.
\538\See Vogel Giuliani. In the months following the July 25 call,
as President Trump through his agents continued to apply pressure on
Ukraine to announce the investigations, call records confirm that Mr.
Giuliani was in regular communication with the White House, Ambassadors
Volker and Sondland, and members of President Zelensky's
administration. Ukraine Report at 114-21 & nn.719-804.
---------------------------------------------------------------------------
b. Additional Evidence of Corrupt Intent
Many other considerations support the conclusion that
President Trump's concerns had nothing to do with the
legitimate foreign policy interests of the United States and
everything to do with the President's personal political
interests. First, after the removal of Ambassador Yovanovitch,
President Trump's primary focus relating to Ukraine throughout
this period was the announcement of two investigations that
would benefit him politically. The day after the July 25 call,
President Trump called Ambassador Sondland to ask whether
President Zelensky ``was going to do the investigation.''\539\
Ambassador Sondland stated that President Zelensky was ``going
to do it'' and would do ``anything you ask him to.''\540\
According to David Holmes, who overheard the conversation,
Ambassador Sondland and President Trump spoke only about the
investigation in their discussion about Ukraine.\541\ The
President made no mention of other major issues of importance
in Ukraine, including President Zelensky's aggressive anti-
corruption reforms and the ongoing war it was fighting against
Russian-led forces in eastern Ukraine.\542\ After Ambassador
Sondland hung up the phone, he told Mr. Holmes that President
Trump ``did not give a shit about Ukraine.''\543\ Rather, he
explained, the President cared only about ``big stuff'' that
benefitted him personally, like ``the Biden investigation that
Mr. Giuliani was pitching.''\544\
---------------------------------------------------------------------------
\539\See Hill-Holmes Hearing Tr. at 29.
\540\Id.
\541\See id. at 29-30, 52.
\542\See generally July 25 Call Record.
\543\Holmes Dep. Tr. at 25; see also Hill-Holmes Hearing Tr. at 29.
\544\Holmes Dep. Tr. at 25; see also Hill-Holmes Hearing Tr. at 29-
30.
---------------------------------------------------------------------------
Second, in pursuit of these investigations, President Trump
made it clear to Ambassador Sondland--who conveyed this message
to Ambassador Taylor--that ``everything was dependent on such
an announcement, including security assistance.''\545\
Ambassador Sondland's admission confirms that President Trump's
actions were motivated only by the announcement of
investigations. Ukraine is a key strategic partner of the
United States. It had just elected a promising new leader who
ran on an anti-corruption platform and was making strong
progress in his reform agenda. But it had been invaded by
Russia and depended heavily on United States support and
assistance. The United States had provided such assistance on a
bipartisan basis, with an overwhelming consensus in Congress
and the national security community that this was vital to our
own national interests.\546\ To be sure, the President has
broad latitude for certain policy judgments in foreign affairs
in order to advance the national security interests of the
country as a whole, but no witness interpreted the President's
request for these investigations to be a change in policy, nor
did his cabinet or Vice President.\547\ This further supports
the alternative and only plausible explanation that the
President pressed for the public announcement of those
investigations because they were of great personal political
value to him.\548\
---------------------------------------------------------------------------
\545\Taylor-Kent Hearing Tr. at 42.
\546\Ukraine Report at 68-70.
\547\Id. at 132 (describing Ms. Williams' testimony that during the
September 1 meeting, the Vice President ``assured President Zelensky
that there was no change in U.S. policy in turns of our . . . full-
throated support for Ukraine and its sovereignty and territorial
integrity.''); Williams Dep. Tr. at 83.
\548\ That point is especially noteworthy given testimony
indicating that President Trump did not actually care if the
investigations occurred, but just wanted them to be announced. When
asked by Chairman Schiff if President Zelensky ``had to get those two
investigations if [the White House meeting] was going to take place,''
Ambassador Sondland responded: ``[President Zelensky] had to announce
the investigations. He didn't actually have to do them, as I understood
it.'' Sondland Hearing Tr. at 43.
The Minority Report claims that there is no evidence of corrupt
intent because the U.S. ``government did not convey the pause to the
Ukrainians.'' Minority Report at ii. But, as explained above, this
argument rests on a faulty premise. Ukraine did learn that the
assistance had been withheld. And Ukrainian officials came to
understand through their communications with United States officials
that both the meeting and the military assistance depended on bowing to
President Trump's demand for investigations.
---------------------------------------------------------------------------
Third, the President's request for these investigations
departed from established channels for making such a request.
On the July 25 call, President Trump told President Zelensky
that he should speak to Mr. Giuliani and Attorney General
Barr.\549\ But after the July 25 transcript was released, the
Department of Justice publicly stated as follows:
---------------------------------------------------------------------------
\549\July 25 Call Record at 3-5.
The President has not spoken with the Attorney
General about having Ukraine investigate anything
relating to former Vice President Biden or his son. The
President has not asked the Attorney General to contact
Ukraine--on this or any other matter. The Attorney
General has not communicated with Ukraine--on this or
any other subject. Nor has the Attorney General
discussed this matter, or anything relating to Ukraine,
with Rudy Giuliani.\550\
---------------------------------------------------------------------------
\550\Statement of Kerri Kupec, Dep't of Just. (Sept. 25, 2019).
Ukraine's current Prosecutor General Ruslan Ryaboshapka,
who assumed his new position in late August 2019, has since
confirmed the Justice Department's account. He told The
Financial Times in late November 2019 that Attorney General
Barr had made no formal request regarding a potential
investigation into allegations of wrongdoing by former Vice
President Biden.\551\
---------------------------------------------------------------------------
\551\See Olearchyk; see also Ukraine Report at 123. Moreover, with
respect to election interference, the President's entire intelligence
community had already concluded that Russia was responsible for
interfering in the 2016 election and, as President Trump's former
Homeland Security Advisor Tom Bossert made clear, the idea of Ukraine
hacking the DNC server was ``not only a conspiracy theory, it is
completely debunked.'' Id. at 42.
---------------------------------------------------------------------------
Many Administration officials have also confirmed that
there was no formal investigation into these matters within the
Department of Justice or formal request to Ukraine for
information in connection to the investigations and, moreover,
that without going through the official process, the
investigations were not proper. As Ambassador Volker testified,
``[Mr. Yermak] said, and I think quite appropriately, that if
they [Ukraine] are responding to an official request, that's
one thing. If there's no official request, that's different.
And I agree with that.''\552\ When Ambassador Volker discovered
that no official request for investigations had been conveyed
by the Department of Justice, he recalls thinking, ``let's just
not go there.''\553\
---------------------------------------------------------------------------
\552\Volker Dep. Tr. at 198.
\553\Id. at 197.
---------------------------------------------------------------------------
In his testimony, Ambassador Taylor corroborated this
account. He told the Committees that, on August 16, in a text
message exchange with Ambassador Volker, he ``learned that Mr.
Yermak had asked that the United States submit an official
request for an investigation into Burisma's alleged violations
of Ukrainian law, if that is what the United States
desired.''\554\ Ambassador Taylor noted that ``a formal U.S.
request to the Ukrainians to conduct an investigation based on
violations of their own law'' was ``improper'' and advised
Ambassador Volker to ``stay clear.''\555\ Mr. Kent similarly
testified that on August 15, Ambassador Volker's special
assistant asked him whether there was any precedent for the
United States asking Ukraine to conduct investigations on its
behalf. Mr. Kent replied: ``[I]f you're asking me have we ever
gone to the Ukrainians and asked them to investigate or
prosecute individuals for political reasons, the answer is, I
hope we haven't, and we shouldn't because that goes against
everything that we are trying to promote in post-Soviet states
for the last 28 years, which is the promotion of the rule of
law.''\556\
---------------------------------------------------------------------------
\554\Taylor-Kent Hearing Tr. at 39.
\555\Id.
\556\Kent Dep. Tr. at 26.
---------------------------------------------------------------------------
Fourth, the President's decision disregarded United States
foreign policy towards Ukraine and did so abruptly and without
explanation. To make a demand that benefits him personally,
while endangering the rights of a United States citizen and
political opponent is a bright red flag that supports only one
conclusion--that the President was putting his own personal and
political interests over the Nation's foreign policy interests.
There is no dispute that President Trump's requested
investigations were not part of any U.S. policy objectives
relating to Ukraine, including its anti-corruption policies.
Mr. Morrison, Lt. Col. Vindman, Mr. Kent, and Ambassador Taylor
all confirmed that an investigation into the Bidens, or the
2016 election, was not a stated or recognized United States
foreign policy objective.\557\ Notably, President Trump was
briefed on official policy prior to both calls that he had with
President Zelensky--on April 21 and July 25.\558\ Yet he chose
not to follow talking points about corruption reform,\559\ and
instead decided on the July 25 call to go off-book and seek the
criminal investigation of his political opponent.
---------------------------------------------------------------------------
\557\Impeachment Inquiry: Kurt Volker and Tim Morrison: Hearing
Before the H. Perm. Select Comm. on Intelligence, 116th Cong. 147 (Nov.
19, 2019) (confirming that he did not follow-up on the President's
request to ``investigate the Bidens'' because he did ``not understand
it as a policy objective''); Vindman Hearing Tr. at 119 (confirming
that he prepared the talking points for the call, that those talking
points did not ``contain any discussion of investigations into the 2016
election, the Bidens, or Burisma,'' and that he was not ``aware of any
written product from the National Security Council'' suggesting those
investigations were part of ``the official policy of the United
States''); Taylor-Kent Hearing Tr. at 179 (``Mrs. Demings[:] Was Mr.
Giuliani promoting U.S. national interests or policy in Ukraine . . . ?
Ambassador Taylor[:] I don't think so, ma'am. . . . Mr. Kent[:] No, he
was not. . . . Mrs. Demings[:] . . . What interest do you believe he
was promoting. . . . ? Mr. Kent[:] ``I believe he was looking to dig up
political dirt against a potential rival in the next election cycle. .
. . Ambassador Taylor[:] I agree with Mr. Kent.'').
\558\Vindman-Williams Hearing Tr. at 119.
\559\Ukraine Report at 52 (citing Deb Riechmann et al., Conflicting
White House Accounts of 1st Trump-Zelenskiy Call, Associated Press,
Nov. 15, 2019).
---------------------------------------------------------------------------
Finally, President Trump's request was almost universally
viewed by key United States and Ukrainian officials as
improper, unusual, problematic, and, most importantly, purely
political:
Mr. Holmes: ``I was shocked the requirement was so
specific and concrete. While we had advised our Ukrainian
counterparts to voice a commitment to following the rule of law
and generally investigating credible corruption allegations,
this was a demand that President Zelensky personally commit on
a cable news channel to a specific investigation of President
Trump's political rival.''\560\
---------------------------------------------------------------------------
\560\Hill-Holmes Hearing Tr. at 32.
---------------------------------------------------------------------------
Dr. Hill: ``[Ambassador Sondland] was being
involved in a domestic political errand, and we were being
involved in national security foreign policy, and those two
things had just diverged.''\561\
---------------------------------------------------------------------------
\561\Id. at. 92.
---------------------------------------------------------------------------
Lt. Col. Vindman: ``What I was trying to do . . .
was express my concerns about something that I viewed to be
problematic.''\562\
---------------------------------------------------------------------------
\562\Vindman Dep. Tr. at 98.
---------------------------------------------------------------------------
Ambassador Taylor: ``The Ukrainians did not owe
President Trump anything. And holding up security assistance
for domestic political gain was crazy.''\563\
---------------------------------------------------------------------------
\563\Taylor-Kent Hearing Tr. at 45 (statement of Ambassador
Taylor).
---------------------------------------------------------------------------
Other officials also voiced alarm. For example, Dr. Hill
testified that Ambassador Bolton told her to ``go and tell the
[NSC Legal Advisor] that I am not part of whatever drug deal
Sondland and Mulvaney are cooking up on this''; Dr. Hill
explained that ``drug deal'' referred to Ambassador Sondland
stating in a July 10 meeting, which included Ukrainian
officials, that he had an agreement with Mr. Mulvaney for a
White House meeting ``if [Ukraine would] go forward with
investigations.''\564\ On July 11, Dr. Hill ``enlisted another
NSC official who was present at the July 10 meeting'' to attend
a longer discussion with the NSC Legal Advisor about her
concerns.\565\ Similarly, although the Minority holds up his
reaction as proof that nothing improper happened, Mr. Morrison
immediately reported the July 25 call to the NSC legal advisor
``to make sure that the package was reviewed by the appropriate
senior level attention.''\566\ Further, Mr. Morrison tried to
stay away from President Trump's requests because these
investigations were not related to ``the proper policy process
that I was involved in on Ukraine,'' and ``had nothing to do
with the issues that the interagency was working on.''\567\
---------------------------------------------------------------------------
\564\Ukraine Report at 89.
\565\Id. at 90.
\566\Morrison Dep. Tr. at 61; see Volker-Morrison Hearing Tr. at
38.
\567\Ukraine Report at 106.
---------------------------------------------------------------------------
Ukrainian officials, too, expressed similar reservations.
On July 20, Ambassador Taylor spoke with Oleksandr Danyliuk,
the Ukrainian national security advisor, who conveyed that
President Zelensky ``did not want to be used as a pawn in a
U.S. reelection campaign.''\568\ As Ambassador Taylor
testified, the ``whole thrust'' of the activities undertaken by
Mr. Giuliani and Ambassador Sondland ``was to get these
investigations, which Danyliuk and presumably Zelensky were
resisting because they didn't want to be seen to be interfering
but also to be a pawn.''\569\ Further, as noted above,
Ukrainian Prosecutor General Ruslan Ryaboshapka later stated--
in apparent reference to President Trump's demands--that ``it's
critically important for the west not to pull us into some
conflicts between their ruling elites, but to continue to
support so that we can cross the point of no return.''\570\ In
short, experienced officials on both sides of President Trump's
scheme saw it for what it was: an effort to solicit Ukraine to
assist his reelection campaign.
---------------------------------------------------------------------------
\568\Id. at 20.
\569\Taylor Dep. Tr. at 177.
\570\Ukraine Report at 55.
---------------------------------------------------------------------------
c. Alternative Explanations for President Trump's Course of Conduct Are
Implausible and Inconsistent With the Evidence
Although the President has declined to participate in these
proceedings, the Minority Report offers three alternative
justifications for President Trump's conduct. The
implausibility of these justifications, which are inconsistent
with the evidence, only further proves that President Trump's
motives were constitutionally improper.
i. Anti-Corruption
The Minority's principal contention is that President Trump
denied a White House visit, withheld military and security
assistance, and demanded these two investigations due to his
``deep-seated, genuine, and reasonable skepticism of Ukraine''
for ``pervasive corruption.''\571\ This after-the-fact
contention is not credible.
---------------------------------------------------------------------------
\571\Minority Report at ii.
---------------------------------------------------------------------------
To start, it is inconsistent with President Trump's own
prior conduct respecting Ukraine. Under the previous Ukrainian
administration of President Petro Poroshenko, which suffered
from serious concerns about corruption issues, President Trump
approved $510 million in aid in 2017 and $359 million in 2018;
he also approved the sale of Javelin missiles to Ukraine in
December 2017.\572\ It was not until 2019, after Ukraine
elected President Zelensky, who ran on a strong anti-corruption
platform, that President Trump suddenly punished Ukraine by
refusing a White House meeting and military and security
assistance. If his goal were to fight corruption, President
Trump would have withheld assistance from a corrupt leader and
provided it to a reformer. Instead, he did the opposite, just a
few months after former Vice President Biden announced his
candidacy.
---------------------------------------------------------------------------
\572\USAID, U.S. Foreign Aid by Country (last updated Sept. 23,
2019); Ukraine Report at 100.
---------------------------------------------------------------------------
Nor did President Trump take any other steps one would
expect to see if his concern were corruption. He was given
extensive talking points about corruption for his April 21 and
July 25 calls, yet ignored them both times and did not mention
corruption on either call.\573\ President Trump's staff
uniformly agreed that President Zelensky was a credible anti-
corruption reformer, yet President Trump suspended a White
House meeting that his entire policy team agreed would lend
support and cache to President Zelensky's anti-corruption
agenda in Ukraine.\574\ He withheld military and security
assistance without any stated explanation, yet his own
Department of Defense, in coordination with the Secretary of
State, had certified in May that Ukraine satisfied all anti-
corruption benchmarks necessary for that assistance to be
released.\575\ He continued to withhold the assistance, yet the
White House never requested or independently conducted any
subsequent review of Ukraine's anti-corruption policies--and
the Defense Department adhered to its view that all anti-
corruption benchmarks had already been satisfied.\576\ He
persisted in denying the public and his own staff any
explanation, even though Congress and every agency other than
OMB (headed by the President's Acting Chief of Staff) supported
the provision of military and security assistance to Ukraine
and strongly objected to President Trump's hold.\577\
Tellingly, the President's purported concerns about corruption
in Ukraine as a reason for placing the hold on security
assistance were not conveyed at the time of the hold or any
time prior to lifting the hold.
---------------------------------------------------------------------------
\573\Ukraine Report at 42 (``[C]ontrary to a public readout of the
call originally issued by the White House, President Trump did not
mention corruption in Ukraine, despite the NSC staff preparing talking
points on that topic. Indeed, `corruption' was not mentioned once
during the April 21 conversation, according to the official call
record.''); Vindman-Williams Hearing Tr. at 24-25; see July 25 Call
Record.
\574\Ukraine Report at 38 (``A new president [of Ukraine] had just
been elected on an anti-corruption platform.''); id. at 52 (``Mr.
Zelensky's victory in April 2019 reaffirmed the Ukrainian people's
strong desire to overcome an entrenched system of corruption and pursue
closer partnership with the West.''); id. at 63 (``Ambassador Sondland,
Ambassador Volker, Secretary Perry, and Senator Johnson `took turns'
making their case `that this is a new crowd, it's a new President' in
Ukraine who was `committed to doing the right things,' including
fighting corruption. . . . They recommended that President Trump once
again call President Zelensky and follow through on his April 21
invitation for President Zelensky to meet with him in the Oval
Office.''); id. at 65 (``On June 18, Ambassador Volker, Acting
Assistant Secretary of State Ambassador Philip T. Reeker, Secretary
Perry, Ambassador Sondland, and State Department Counselor T. Ulrich
Brechbuhl participated in a meeting at the Department of Energy to
follow up to the May 23 Oval Office meeting. Ambassador William Taylor
. . . participated by phone from Kyiv. The group agreed that a meeting
between President Trump and President Zelensky would be valuable.'');
Hill-Holmes Hearing Tr. at 23 (``We at the Embassy also believed that a
meeting was critical to the success of President Zelensky's
administration and its reform agenda, and we worked hard to get it
arranged.'').
\575\Kent Dep. Tr. at 304-05 (``There was great confusion among the
rest of us because we didn't understand why that had happened. . . .
Since there was unanimity that this [aid] was in our national interest,
it just surprised all of us.''); Croft Dep. Tr. at 15 (``The only
reason given was that the order came at the direction of the
President.''); Letter from John C. Rood, Under Sec'y of Defense for
Policy, Dep't of Defense, to Eliot L. Engel, Chairman, House Comm. on
Foreign Affairs (May 23, 2019) (``Ukraine has taken substantial actions
to make defense institutional reforms for the purposes of decreasing
corruption. . . . [N]ow that this defense institution reform has
occurred, we will use the authority provided . . . to support programs
in Ukraine further.''); Ukraine Report at 67.
\576\Cooper Dep. Tr. at. 92-93 (``Q: But DOD did not conduct any
sort of review following this statement about whether Ukraine was
making any sort of progress with regard to its anticorruption efforts
in July or August or beginning of September. Is that right? A: That is
correct. Q: Okay. And that's because, as a matter of process and law,
all of those events took place precertification, pre-May? A: That is
correct. And in the interagency discussions, DOD participants affirmed
that we believed sufficient progress has been made. Q: Okay. And it
wasn't just DOD participants who believed that these funds should flow
to Ukraine during these interagency meetings, correct? A: That's
correct. It was unanimous with the exception of the statements by OMB
representatives, and those statements were relaying higher level
guidance.'').
\577\Ukraine Report at 67 (``In a series of interagency meetings,
every represented agency other than OMB (which is headed by Mick
Mulvaney, who is also the President's Acting Chief of Staff) supported
the provision of assistance to Ukraine and objected to President
Trump's hold. Ukraine experts at DOD, the State Department, and the
National Security Council (NSC) argued that it was in the national
security interest of the United States to continue to support
Ukraine.''); -Vindman-Williams Hearing Tr. at 125 (``Q. And from what
you witnessed, did anybody in the National Security community support
withholding the assistance?A. No.''); Taylor-Kent Hearing Tr. at 35
(``I and others sat in astonishment. The Ukrainians were fighting
Russians and counted on not only the training and weapons but also the
assurance of U.S. support.'').
---------------------------------------------------------------------------
Moreover, as numerous United States officials observed, it
would be squarely inconsistent with advancing an anti-
corruption agenda for an American President to avoid official
channels and demand that a foreign leader embroil themselves in
our politics by investigating a candidate for President.\578\
Yet President Trump made that very same demand. He also fired,
without any explanation, an ambassador widely recognized as a
champion in fighting corruption,\579\ praised a corrupt
prosecutor general in Ukraine,\580\ and oversaw efforts to
``cut foreign programs tasked with combating corruption in
Ukraine and elsewhere overseas.''\581\
---------------------------------------------------------------------------
\578\Ukraine Report at 149 (``When it became clear that President
Trump was pressuring Ukraine to investigate his political rival, career
public servants charged with implementing U.S. foreign policy in a non-
partisan manner, such as Lt. Col. Vindman and Ambassador Taylor,
communicated to President Zelensky and his advisors that Ukraine should
avoid getting embroiled in U.S. domestic politics.''); Hill-Holmes
Hearing Tr. at 46 (``[O]ur longstanding policy is to encourage them
[Ukraine] to establish and build rule of law institutions that are
capable and that are independent and that can actually pursue credible
allegations. That's our policy. We've been doing that for quite some
time with some success. So focusing on particular[] cases, including []
cases where there is an interest of the President, it's just not part
of what we've done. It's hard to explain why we would do that.'');
Taylor-Kent Hearing Tr. at 164 (concluding that President Trump's
request ``went against U.S. policy'' and ``would've undermined the rule
of law and our longstanding policy goals in Ukraine, as in other
countries, in the post-Soviet space'').
\579\Ukraine Report at 38-50; see also id. at 49 (``There was a
broad consensus that Ambassador Yovanovitch was successful in helping
Ukraine combat pervasive and endemic corruption.''); Holmes Dep. Tr. at
142; Hill-Holmes Hearing Tr. at 18-19.
\580\July 25 Call Record at 3.
\581\Erica Werner, Trump Administration Sought Billions of Dollars
in Cuts to Programs Aimed at Fighting Corruption in Ukraine and
Elsewhere, Wash. Post, Oct. 23, 2019 (hereinafter ``Werner'').
---------------------------------------------------------------------------
Nothing about President Trump's conduct in the relevant
period supports the theory that he was motivated by a ``deep-
seated, genuine, and reasonable skepticism of Ukraine'' for
``pervasive corruption.'' He gave Ukraine hundreds of millions
of dollars under a regime that ultimately lost power because of
mounting concerns about corruption and then punitively withheld
funds when a reformer came to power. He launched a general
attack on anti-corruption programs while growing closer with
Vladimir Putin and other corrupt despots. His Administration
cut anti-corruption programs in Ukraine during the relevant
period.\582\ And he ignored, defied, and confounded every
office and agency within the Executive Branch seeking to
promote anti-corruption programs, while demanding that Ukraine
investigate his own domestic political rival. Even in the May
23 White House meeting with other U.S. officials, President
Trump equated corruption in Ukraine with the false allegations
that Ukraine tried to ``take [him] down'' in 2016, and directed
his three senior U.S. government officials to assist ``Mr.
Giuliani's efforts, which, it would soon become clear, were
exclusively for the benefit of the President's reelection
campaign.''\583\
---------------------------------------------------------------------------
\582\See Werner.
\583\Ukraine Report at 17.
---------------------------------------------------------------------------
In short, there is overpowering evidence that President
Trump acted with corrupt intent. The after-the-fact claim that
he asked for foreign investigations of his political rivals and
withheld military aid because of a generalized concern about
corruption defies all the evidence before us and common sense.
The President's actions were unexplained and inexplicable,
contradicted legal and factual findings reached by credible
experts, and are indefensible given they involved soliciting a
foreign power to open an investigation into an American citizen
and rival political candidate.
ii. Burden Sharing
We next consider the second justification proposed in the
Minority Report: that President Trump has ``been vocal about
his skepticism of U.S. foreign aid and the need for European
allies to shoulder more of the financial burden for regional
defense.''\584\ This explanation is based largely on the fact
that President Trump told President Zelensky on the July 25
call that European countries should be doing more to help
Ukraine. But there is no evidence that this concern was the
actual reason why he withheld a White House meeting, blocked
the release of Congressionally approved military and security
assistance, and requested the announcement of two
investigations; in fact, the evidence available is inconsistent
with that offered explanation.
---------------------------------------------------------------------------
\584\Minority Report at ii.
---------------------------------------------------------------------------
To this day, President Trump has not explained why he
withheld the valuable White House meeting. And until the
whistleblower complaint was filed, there was no explanation for
why President Trump had blocked release of the military and
security assistance.\585\ This was extremely unusual. OMB
Deputy Associate Director Mark Sandy, the senior budget
official responsible for the Department of Defense portion of
the aid to Ukraine, testified that he could not recall another
instance in which a significant amount of assistance was held
with no rationale provided.\586\ Deputy Assistant George Kent
testified that, upon learning of the hold on July 18, there was
``great confusion'' among representatives from the Department
of Defense, State Department, and National Security Council
because they ``didn't understand why'' the aid had been
frozen.\587\
---------------------------------------------------------------------------
\585\See, e.g., Ukraine Report at 71-74; Vindman Dep. Tr. at 304-
06; Hale Dep. Tr. at 105; Croft Dep. Tr. at 15; Holmes Dep. Tr. at 21;
Kent Dep. Tr. at 304, 310; Sondland Hearing Tr. at 56, 80; Cooper Dep.
Tr. at 44-45; Sandy Dep. Tr. at 91, 97; Morrison Dep. Tr. at 162-63.
Mr. Morrison testified that, during a deputies' meeting on July 26, OMB
stated that the ``President was concerned about corruption in Ukraine,
and he wanted to make sure that Ukraine was doing enough to manage that
corruption.'' Morrison Dep. Tr. at 165. Mr. Morrison did not testify
that concerns about Europe's contributions were raised during this
meeting. In addition, Mr. Sandy testified that, as of July 26, despite
its own statement, OMB did not actually have an understanding of the
reason for the hold. See Sandy Dep. Tr. at 55-56.
\586\Sandy Dep. Tr. at 49.
\587\Kent Dep. Tr. at 304.
---------------------------------------------------------------------------
If the President's reason for ordering a hold was concern
about Europe's contributions, he had no reason to keep that
fact a secret from his own administration. Moreover, if that
was his concern, the normal response would be to undertake a
review process at the time of the hold. Yet, while Deputy
Assistant Secretary of Defense Laura Cooper and other witnesses
testified that they received some inquiries in late June about
Ukraine security assistance, Ms. Cooper testified that there
was no policy or interagency review process that she
``participated in or knew of'' in August 2019.\588\ Ms. Cooper
further testified that she had ``no recollection of the issue
of allied burden sharing coming up'' in the three meetings she
attended about the freeze on security assistance, or hearing
about a lack of funding from Ukraine's allies as a reason for
the freeze.\589\ Under Secretary of State David Hale also
testified that he did not hear about the lack of funding from
Ukraine's allies as a reason for the security assistance
hold.\590\ And Ambassador Sondland, the ambassador to the
European Union, testified that he was never asked to reach out
to European countries to get them to contribute more.\591\
Finally, President Trump ultimately released the military and
security assistance without any further contributions from
Europe. According to Lt. Col. Vindman, none of the ``facts on
the ground'' had changed when this occurred.\592\
---------------------------------------------------------------------------
\588\Cooper Dep. Tr. at 91.
\589\Impeachment Inquiry: Laura Cooper and David Hale: Hearing
Before the H. Perm. Select Comm. on Intelligence, 116th Cong. 75-76
(Nov. 20, 20190.
\590\Id. at 76.
\591\Sondland Dep. Tr. at 338.
\592\Vindman Dep. Tr. at 306.
---------------------------------------------------------------------------
If the President's concern were genuinely about burden-
sharing, it is implausible that he kept his own administration
in the dark about that issue, never made any public statements
about it, never ordered a review process focused on the
question of burden sharing, never ordered his officials to push
Europe to increase their contribution, and then released the
aid without any change in Europe's contributions.
To be sure, after the whistleblower complaint was filed and
the President became aware he had been caught, Mr. Sandy began
receiving questions in September about burden sharing.\593\ But
that sequence only underscores the fact that this explanation
was an after-the-fact justification to cover his tracks, as the
hold had been in place for nearly two months without burden-
sharing provided as a reason. Moreover, after Congress began
investigating President Trump's conduct, the White House
Counsel's Office reportedly conducted an internal review of
``hundreds of documents,'' which ``reveal[ed] extensive efforts
to generate an after-the-fact justification'' for the hold on
assistance for Ukraine ordered by President Trump.\594\ These
documents reportedly included ``early August email exchanges
between acting chief of staff Mick Mulvaney and White House
budget officials seeking to provide an explanation for
withholding the funds after the president had already ordered a
hold in mid-July on the nearly $400 million in security
assistance.''\595\ Given the substantial evidence of irregular
conduct at OMB--including, according to Mr. Sandy, the
resignation of two OMB officials partly based on their
objection to OMB's handling and rationale for the hold on
assistance to Ukraine\596\--this effort to manufacture a
pretext cannot reasonably be credited.
---------------------------------------------------------------------------
\593\Sandy Dep. Tr. at 44-45.
\594\Josh Dawsey et al., White House Review Turns Up Emails Showing
Extensive Effort to Justify Trump's Decision to Block Ukraine Military
Aid, Wash. Post, Nov. 24, 2019.
\595\Id. Because the White House has withheld these documents from
Congress, the Committee is unable to verify the accuracy of the press
reporting.
\596\Sandy Dep. Tr. at 149-56.
---------------------------------------------------------------------------
It also bears mention that European countries do, in fact,
contribute substantial assistance to Ukraine. Since 2014, the
European Union and European financial institutions have
provided more than $16 billion in grants and loans to Ukraine,
making the EU the largest donor to Ukraine.\597\ This far
exceeds the approximately $1.95 billion in assistance that the
United States has provided during the same period, according to
USAID.\598\ Although the United States is the largest donor of
military assistance to Ukraine, European countries also provide
military aid to Ukraine through a NATO assistance package. For
example, the United Kingdom has sent more than 1,300 soldiers
to Ukraine since 2015 and has trained approximately 10,000
Ukrainian troops.\599\
---------------------------------------------------------------------------
\597\European Union, EU-Ukraine Relations--Fact Sheet (Sept. 30,
2019).
\598\USAID, U.S. Foreign Aid by Country (last updated Sept. 23,
2019). According to Mr. Holmes, the United States has provided military
and security assistance of about $3 billion since 2014. Hill-Holmes
Hearing Tr. at 97.
\599\Ctr. for Strategic & Int'l Studies, Not Contributing Enough? A
Summary of European Military and Development Assistance to Ukraine
Since 2014 (Sept. 26, 2019).
---------------------------------------------------------------------------
iii. Legitimate Investigations
The third and final justification that the Minority Report
offers to explain President Trump's conduct is that he had a
legitimate basis to request investigations into his political
rival and the 2016 United States Presidential election.\600\
Like the others conjectured by the Minority, this explanation
is contradicted by the facts, the President's own statements,
and common sense.
---------------------------------------------------------------------------
\600\Minority Report at 78-85.
---------------------------------------------------------------------------
First, this theory presumes that the President was
motivated by an overriding concern about events that occurred
in 2015 and 2016--and that were widely reported at the time.
Yet it was not until 2019 that the President requested these
investigations and placed a hold on assistance to Ukraine. In
other words, President Trump requested the investigations only
after Vice President Biden had entered the 2020 presidential
race and began beating him in the polls--thus giving him a
personal and political motive to harm Vice President Biden
publicly--and only after Special Counsel Robert Mueller's
investigation affirmed the Intelligence Community Assessment's
finding that Russia interfered in our election, and that it did
so in a ``sweeping and systematic'' fashion in order to benefit
President Trump.\601\ The timing of President Trump's
solicitation and pressure campaign, so shortly after Vice
President Biden announced his candidacy and the Special Counsel
Mueller's report was released, is powerful proof of the
President's true motives for seeking the investigations.
---------------------------------------------------------------------------
\601\See Robert S. Mueller, III, Report on the Investigation into
Russian Interference in the 2016 Presidential Election, Vol. I, 1
(March 2019) (hereinafter, ``Mueller Report''); see also Washington
Post-ABC News poll, June 28-July 1, 2019, Wash. Post, July 11, 2019
(poll showing Biden at 55, Trump at 41).
---------------------------------------------------------------------------
Second, as explained above, had President Trump genuinely
believed there was a legitimate basis to request Ukraine's
assistance in law enforcement investigations, there are
specific formal processes that he should have followed.
Specifically, he could have instructed DOJ to make an official
request for assistance through a Mutual Legal Assistance Treaty
(MLAT).\602\ But even though the United States and Ukraine have
entered into an MLAT, multiple witnesses and DOJ itself have
confirmed that there was never an official United States
investigation into the Bidens' conduct in Ukraine, nor was
there an official request to Ukraine for an investigation into
its alleged interference in the 2016 United States Presidential
election.\603\ The President's failure to follow legitimate
procedures is further proof that he was acting improperly.\604\
---------------------------------------------------------------------------
\602\See U.S. Dep't of Just., Criminal Resource Manual
Sec. Sec. 266-277 (describing the formal process for seeking
international assistance in criminal investigations); see also Kent
Dep. Tr. at 110-11, 158, 261; Yovanovitch Dep. Tr. at 192, 212; Holmes
Dep. Tr. at 201-02; Taylor Dep. Tr. at 136.
\603\Kent Dep. Tr. at 111; Yovanovitch Dep. Tr. at 192; see also
Matt Zapotosky et al., Trump Wanted Barr to Hold News Conference Saying
the President Broke No Laws in Call with Ukrainian Leader, Wash. Post,
Nov. 6, 2019.
\604\Although the President's supporters have noted that some
Ukrainian officials made critical statements about President Trump
during his campaign, as witnesses testified, witnesses explained that
mere public comments are dramatically different than an orchestrated
attempt to interfere in the level of election interference by the
Ukrainian government. Moreover, those statements--which the Minority
asserts became public in 2016 and early 2017--were not publicly raised
by President Trump prior to 2019 nor during his call with President
Zelensky, nor is there any evidence that President Trump was concerned
about them. Rather, and quite irresponsibly, they have been raised by
the President's political supporters in what appears to be an after-
the-fact effort to manufacture a pretextual justification for the
President's course of conduct.
---------------------------------------------------------------------------
Third, the role of Mr. Giuliani also belies the suggestion
that this was about legitimate United States investigations.
Mr. Giuliani is not a representative of the United States
government and had no formal role in facilitating Ukraine's
involvement in United States criminal investigations. His
involvement, as well as the lack of formal, official
involvement by DOJ, provide ever more evidence that President
Trump's actions were unrelated to legitimate United States
criminal investigations, but rather about Giuliani's effort to
``meddle in investigations'' on behalf of his client, President
Trump, as Giuliani told the New York Times in May.
Indeed, the record makes clear that President Trump was not
seeking Ukrainian assistance in United States criminal
investigations; rather, he wanted Ukraine to announce its own
investigations of Vice President Biden and the 2016 United
States Presidential election. This is clear from DOJ's non-
involvement, as well as the President's public comments that
Ukraine should ``start a major investigation into the
Bidens.''\605\ Multiple witnesses testified that it is
extremely inappropriate and irregular for the United States to
ask Ukraine to investigate a United States citizen--
particularly when that citizen is a former Vice President and
current political candidate.\606\ For example, Lieutenant
Colonel Vindman testified that he reported President Trump's
July 25 call to legal counsel because he ``did not think it was
proper to demand that a foreign government investigate a U.S.
citizen.''\607\ Ambassador Taylor echoed this concern, stating
that ``[a] formal U.S. request to the Ukrainians to conduct an
investigation based on violations of their own law struck me as
improper, and I recommended to Ambassador Volker that we stay
clear.''\608\ Ambassador Volker, too, testified that ``[t]o
investigate the Vice President of the United States or someone
who is a U.S. official. I don't think we should be asking
foreign governments to do that. I would also say that's true of
a political rival.''\609\ The President's improper request that
Ukraine announce investigations varied from standard rules and
norms; further demonstrating that it marked a dangerous abuse
of power by the President.
---------------------------------------------------------------------------
\605\The White House, Remarks by President Trump Before Marine One
Departure, Oct. 3, 2019.
\606\See, e.g., Taylor-Kent Hearing Tr. at 159 (``it is not role of
politicians to be involved in directing the judicial systems of . . .
other countries''); Taylor Dep. Tr. at 32 (``A formal U.S. request to
the Ukrainians to conduct an investigation based on violations of their
own law struck me as improper, and I recommended to Ambassador Volker
that we stay clear.''); Volker-Morrison Hearing Tr. at 156 (``I don't
believe it is appropriate for the President to [ask a foreign
government to investigate a U.S. citizen]. If we have law enforcement
concerns with a U.S. citizen generally, there are appropriate channels
for that.'').
\607\Vindman Dep. Tr. at 18.
\608\Taylor Dep. at 32.
\609\Volker Hearing Tr. at 103.
---------------------------------------------------------------------------
Finally, both theories asserted by President Trump have
been proven false. None of the 17 witnesses who appeared as
part of this inquiry testified that they were aware of any
factual basis to support the allegation that Ukraine interfered
in the 2016 election; rather, multiple witnesses confirmed that
these were false, debunked conspiracy theories.\610\ As Dr.
Fiona Hill testified, ``[t]his is a fictional narrative that is
being perpetrated and propagated by the Russian security
services themselves.''\611\ Further, on December 9, 2019, FBI
Director Christopher Wray stated, ``We have no information that
indicates that Ukraine interfered with the 2016 presidential
election.''\612\ The Republican-led Senate Select Committee on
Intelligence concluded the same.\613\ It is therefore entirely
not credible to suggest that the President's actions were based
on a sincere belief that Ukraine interfered in the 2016 United
States election or that the so-called ``Crowdstrike theory''
had any validity.\614\
---------------------------------------------------------------------------
\610\Hill Dep. Tr. at 173, 175; Kent Dep. Tr. at 198; Vindman Dep.
Tr. at 330-31; Hale Dep. Tr. at 121; Holmes Dep. Tr. at 128.
\611\Hill-Holmes Hearing Tr. at 40.
\612\Luke Barr & Alexander Mallin, FBI Director Pushes Back on
Debunked Conspiracy Theory About 2016 Election Interference, ABC News,
Dec. 9, 2019.
\613\Natasha Bertrand, Senate Panel Look into Ukraine Interference
Comes Up Short, Politico, Dec. 2, 2019.
\614\In fact, what President Trump raised on his call was a false
conspiracy theory that Russia did not hack the Democratic National
Committee (``DNC'') servers in 2016 and that there is a DNC server
hidden in Ukraine. As President Trump's own former Homeland Security
Advisor Tom Bossert confirmed and previously advised President Trump,
this theory has ``no validity'' and is ``completely debunked.'' See
Sheryl Gay Stolberg et al., Trump Was Repeatedly Warned That Ukraine
Conspiracy Theory Was `Completely Debunked', N.Y. Times, Sept. 29,
2019. The theory appears to stem in part from an inaccurate suggestion
by the President that Crowdstrike, an American cybersecurity firm
retained by the DNC in 2016 to investigate the origins of Russia's hack
on DNC servers, is owned by a Ukrainian. It is not. The intelligence
communities have unanimously concluded that Russia interfered in the
2016 election, and the President has been repeatedly advised that the
Crowdstrike theory is illegitimate. Dr. Hill testified that Mr. Bossert
and National Security Advisor H.R. McMaster ``spent a lot of time'' in
2017 ``trying to refute'' the Crowdstrike theory and advised the
President that the theory of Ukrainian interference was false. Hill
Dep. Tr. at 234
---------------------------------------------------------------------------
Similarly, there is no legitimate basis for President Trump
to claim former Vice President Biden behaved improperly in
calling for the removal of Ukrainian prosecutor general Viktor
Shokin. When he called for Mr. Shokin's removal, then-Vice
President Biden acted in accordance with and in furtherance of
an official United States policy and the broad consensus of
various European countries and the International Monetary
Fund.\615\ Indeed, in late 2015, the International Monetary
Fund threatened Ukraine that it would not receive $40 billion
in international assistance unless Mr. Shokin was removed.\616\
Vice President Biden was subsequently enlisted by the State
Department to call for Mr. Shokin's removal--and in late 2015
and early 2016, he announced that the United States would
withhold $1 billion in loan guarantees unless Mr. Shokin was
dismissed.\617\ Ultimately, in March 2016, Ukraine's parliament
voted to dismiss Mr. Shokin.\618\ Moreover, multiple witnesses
confirmed that the removal of Mr. Shokin would have increased
the likelihood that Burisma would be investigated for
corruption, not the opposite, given that Mr. Shokin was widely
considered to be both ineffective and corrupt.\619\ Any
suggestion that former Vice President Biden called for Mr.
Shokin's removal in order to stop an investigation of Burisma,
the company whose board Hunter Biden sat on, is inconsistent
with these facts.\620\
---------------------------------------------------------------------------
\615\Multiple witnesses thus testified that Mr. Shokin was corrupt
and failing to fulfill his duties as Prosecutor General. Mr. Kent, an
expert on Ukraine and anti-corruption matters, described ``a broad-
based consensus'' among the United States, European allies, and
international financial institutions that Mr. Shokin was ``a typical
Ukraine prosecutor who lived a lifestyle far in excess of his
government salary, who never prosecuted anybody known for having
committed a crime'' and who ``covered up crimes that were known to have
been committed.'' Kent Dep. Tr. at 45. In addition, Ukraine's former
prosecutor general Yuriy Lutsenko who had perpetuated this allegation
of wrongdoing by the Bidens has since recanted and stated that there is
no evidence of wrongdoing by Vice President Biden or his son. See
Ukraine Report at 42.
\616\Courtney Subramanian, Explainer: Biden, Allies Pushed Out
Ukrainian Prosecutor Because He Didn't Pursue Corruption Cases, USA
Today, Oct. 3, 2019; Neil Buckley, Roman Olearchyk, & Shawn Donnan, IMF
Warning Sparks Ukraine Pledge on Corruption and Reform, Fin. Times,
Feb. 10, 2016.
\617\Taylor-Kent Hearing Tr. at 93; Matt Viser & Paul Sonne, Inside
Joe Biden's Brawling Efforts to Reform Ukraine--Which Won Him Successes
and Enemies, Wash. Post, Oct. 19, 2019.
\618\Andrew E, Kramer, Ukraine Ousts Viktor Shokin, Top Prosecutor,
and Political Stability Hangs in the Balance, N.Y. Times, Mar. 29,
2016.
\619\Ukraine Report at 42.
\620\Because Mr. Shokin failed to prosecute corruption in Ukraine,
his removal made it more--not less--likely that Ukrainian authorities
might investigate any allegations of wrongdoing at Burisma. In
addition, Ukraine's former Prosecutor General Yuri Lutsenko who had
perpetuated this allegation of wrongdoing by the Bidens has since
recanted and stated that there is no evidence of wrongdoing by Vice
President Biden or his son. See Tracy Wilkinson & Sergei L. Loiko,
Former Ukraine Prosecutor Says He Saw No Evidence of Wrongdoing by
Biden, L.A. Times, Sept. 29, 2019. For these reasons, the allegations
that Vice President Biden inappropriately pressured Ukraine to remove
Mr. Shokin in order to protect his son are baseless.
---------------------------------------------------------------------------
iv. Conclusion
The Committee does not lightly conclude that President
Trump acted with corrupt motives. But the facts, including the
uncontradicted and corroborated testimony and documents, as
well as common sense once again, all support that inescapable
conclusion. President Trump exercised his official powers to
solicit and pressure Ukraine to launch investigations into
former Vice President Biden and the 2016 election. He did so
not for any legitimate reason, but to obtain an improper
personal political benefit by aiding his reelection, harming
the election prospects of a political opponent, and influencing
the 2020 United States Presidential election to his advantage.
In so doing, President Trump violated his Oath of Office and
abused his public trust. The Framers could not have been
clearer that Presidents who wield power for their own personal
advantage are subject to impeachment, particularly when their
private gain comes at the expense of the national interest.
3. President Trump Ignored and Injured Vital National Interests
President Trump's abuse of power harmed the United States.
It undermined our national security and weakened our democracy.
There is no indication that the President attended to these
concerns in pursuing his own political errand--and there is
every indication that he purposely ignored them. This is
exactly what the Framers feared, and it is why they authorized
Presidential impeachment.
a. National Security
While carrying out his corrupt scheme in Ukraine, President
Trump ignored and injured the national security of the United
States. He did so by threatening our safety and security,
weakening democracy at home and abroad, undermining our efforts
to promote the rule of law on a global stage, and tarnishing
our reputation with allies. This is not a matter of policy
disagreement. It is an objective assessment of the consequences
of President Trump's conduct--an assessment that the House is
entitled and required to make in these circumstances.
First, when he withheld military and security assistance
from Ukraine (and did so for his own personal political
benefit), President Trump threatened the safety and security of
the United States. Ukraine is a ``strategic partner of the
United States.''\621\ By contrast, United States ``national
security policy'' correctly identifies Russia as an
adversary.\622\ As multiple witnesses affirmed, the United
States therefore has an interest in supporting Ukraine, to
ensure it remains an independent and democratic country that
can deter Russian influence, expansion, and military
aggression. For example, Ambassador Yovanovitch explained in
her testimony that ``[s]upporting Ukraine is the right thing to
do. It's also the smart thing to do. If Russia prevails and
Ukraine falls to Russia dominion, we can expect to see other
attempts by Russia to expand its territory and
influence.''\623\ Mr. Morrison elaborated: ``Russia is a
failing power, but it is still a dangerous one. The United
States aids Ukraine and her people so that they can fight
Russia over there, and we don't have to fight Russia
here.''\624\
---------------------------------------------------------------------------
\621\Taylor-Kent Hearing Tr. at 28.
\622\Id. at 53; see also Worldwide Threat Assessment of the U.S.
Intelligence Community Before S. Select Comm. on Intelligence, 116th
Cong. (Jan. 29, 2019) (testimony by Director Daniel R. Coats, Office of
the Director of National Intelligence) (``We assess that Russia poses a
cyber espionage, influence, and attack threat to the United States and
our allies.'').
\623\Impeachment Inquiry: Marie Yovanovitch: Hearing Before the H.
Perm. Select Comm. on Intelligence, 116th Cong. 18 (Nov. 15, 2019). Mr.
Holmes elaborated on the importance of Ukraine to our policy goals:
``It's been said that without Ukraine, Russia is just a country, but
with it, it's an empire.'' Hill-Holmes Hearing Tr. at 162.
\624\Ukraine Report at 69; Morrison-Volker Hearing Tr. at 11.
---------------------------------------------------------------------------
The military and security assistance that the United States
has approved with bipartisan support to Ukraine since 2014 is
critical to preventing Russia's expansion and aggression.
Ukraine is on the front line of conflict with Russia; its
forces defend themselves against Russian aggression every day,
in an ongoing war.\625\ When the United States provides
assistance that allows Ukraine to equip itself with ``radar and
weapons and sniper rifles, that saves lives. It makes the
Ukrainians more effective. It might even shorten the war.
That's what our hope is, to show that the Ukrainians can defend
themselves and the Russians, in the end, will say `Okay, we're
going to stop.'''\626\ In addition, as Ambassador Taylor
explained, the delay occurred ``at a time when hostilities were
still active in the east and when Russia was watching closely
to gauge the level of American support for the Ukrainian
Government.''\627\
---------------------------------------------------------------------------
\625\See, e.g., Ukraine Report at 67-69; Kent. Dep. Tr. at 202,
338-339.
\626\Ukraine Report at 68; Taylor Dep. Tr. at 153.
\627\Ukraine Report at 129; Taylor-Kent Hearing Tr. at 40.
---------------------------------------------------------------------------
Above and beyond the security assistance itself, public
support from the United States demonstrates to Russia that ``we
are Ukraine's reliable strategic partner.''\628\ In withholding
not only assistance, but also a White House meeting, the
President denied Ukraine a show of strength that could deter
further Russian aggression and help Ukraine negotiate an end to
its five-year war with Russia (a war that has already killed
over 13,000 Ukrainians).\629\ Indeed, the very fact of delayed
assistance quite certainly emboldened our enemies and weakened
our partner. President Trump's conduct continues to exacerbate
these dynamics; for example, the day after Presidents Zelensky
and Putin met to negotiate an end to the war in their border
region, on December 10, President Trump met with Russia's top
envoy in the Oval Office, but has yet to schedule a White House
meeting with President Zelensky.\630\
---------------------------------------------------------------------------
\628\See Ukraine Report at 83. Mr. Kent also testified to this
point, explaining that a White House meeting was ``also important for
U.S. national security because it would have served to bolster
Ukraine's negotiating position in peace talks with Russia. It also
would have supported Ukraine as a bulwark against further Russian
advances in Europe.'' Id. at 83-84.
\629\Ukraine Report at 68, 83-84.
\630\John Hudson & Anne Gearan, Trump Meets Russia's Top Diplomat
Amid Scrap Over Election Interference, Wash. Post, Dec. 10, 2019.
---------------------------------------------------------------------------
Second, our national security goals in support of Ukraine
are part of a ``broader strategic approach to Europe,'' whereby
we seek to facilitate negotiation of conflicts in Europe,
maintain peace and order in that region, and prevent further
Russian aggression not just in Ukraine but in Europe and
elsewhere.\631\ Ambassador Taylor explained the importance of
Ukraine to these policy goals in his testimony:
---------------------------------------------------------------------------
\631\Taylor-Kent Hearing Tr. at 169-70.
Russians are violating all of the rules, treaties,
understandings that they committed to that actually kept peace
in Europe for nearly 70 years. Until they invaded Ukraine in
2014, they had abided by sovereignty of nations, of
inviolability of borders. That rule of law, that order that
kept the peace in Europe and allowed for prosperity as well as
peace in Europe was violated by the Russians. And if we don't
push back on that, on those violations, then that will
continue. . . . [This] affects the kind of world that we want
to see abroad. So that affects our national interests very
directly. Ukraine is on the front line of that conflict.\632\
---------------------------------------------------------------------------
\632\Taylor-Kent Hearing Tr. at 52-53.
Third, President Trump's actions diminished President
Zelensky's ability to advance his anti-corruption reforms in
Ukraine--and, in turn, to help the United States promote our
ideals abroad.
President Zelensky, who ran on a strong anti-corruption
platform, was elected by a large majority of Ukrainians;
subsequent to that election, Ukrainians voted to replace 80% of
their Parliament to endorse a ``platform consistent with our
democratic values, our reform priorities, and our strategic
interests.''\633\ Mr. Kent thus emphasized that President
Zelensky's anti-corruption efforts could ensure that ``the
Ukrainian Government has the ability to go after corruption and
effectively investigate, prosecute, and judge alleged criminal
activities using appropriate institutional mechanisms, that is,
to create and follow the rule of law.''\634\ Of course, it is
always in our national security interest to help advance such
democratic and anti-corruption platforms. At a time of shifting
alliances, ``Ukrainians and freedom loving people everywhere
are watching the example we set here of democracy and rule of
law.''\635\ ``If Ukraine is able to enforce that anti-
corruption agenda, it can serve as an example to other post-
Soviet countries and beyond, from Moscow to Hong Kong.''\636\
``A secure, democratic, and free Ukraine [thus] serves not just
the Ukrainian people, but the American people as well. That's
why it was our policy and continues to be our policy to help
the Ukrainians achieve their objectives. They match our
objectives.''\637\
---------------------------------------------------------------------------
\633\Hill-Holmes Hearing Tr. at 35.
\634\Ukraine Report at 149; Taylor-Kent Hearing Tr. at 24.
\635\Hill-Holmes Hearing Tr. at 36.
\636\Id. at 35.
\637\Yovanovitch Hearing Tr. at 17.
---------------------------------------------------------------------------
As Mr. Holmes testified, a White House visit and U.S.
support was ``critical'' to President Zelensky implementing his
platform.\638\ President Zelensky was a new leader, ``looking
to establish his bona fides as a regional and maybe even a
world leader.'' In that context, a meeting with the United
States--the most ``powerful country in the world and Ukraine's
most significant benefactor''--would have gone a long way in
ensuring that President Zelensky had the credibility to
implement his reforms.\639\ Yet, to this day and as a result of
President Trump's desire to obtain a personal political
advantage in the upcoming election, no such meeting has
occurred. This surely has not gone unnoticed by Ukraine, our
democratic allies, or countries struggling to enforce similar
democratic ideals. Indeed, Zelensky administration officials
already are reportedly ``now reconsidering their strategy on
communication with and about the Trump administration.''\640\
---------------------------------------------------------------------------
\638\Hill-Holmes Hearing Tr. at 23.
\639\Id. at 38-39.
\640\Betsy Swan, Ukrainians: Trump Just Sent Us `a Terrible
Signal', Daily Beast, Dec. 11, 2019; see also Michael Birnbaum, Ukraine
Desperately Wants the U.S. on its Side. They Just Don't Know who has
Trump's Ear Anymore, Wash. Post, Nov. 22, 2019 (quoting a Zelensky ally
who noted that the U.S. delay in military aid is ``making us rethink
how U.S. policy is operating'').
---------------------------------------------------------------------------
Fourth, President Trump's brazen use of official acts to
pressure Ukraine to announce a politically motivated
investigation undermined our credibility in promoting
democratic values and the rule of law in Ukraine and elsewhere.
As Ambassador Taylor underscored, ``[o]ur credibility is based
on a respect for the United States,'' and ``if we damage that
respect, then it hurts our credibility and makes it more
difficult for us to do our jobs.''\641\ Mr. Kent, too, agreed
that the President's request for investigations ``went against
U.S. policy'' and ``would've undermined the rule of law and our
longstanding policy goals in Ukraine, as in other countries, in
the post-Soviet space.''\642\
---------------------------------------------------------------------------
\641\Ukraine Report at 150; Taylor-Kent Hearing Tr. at 165.
\642\Ukraine Report at 150; Taylor-Kent Hearing Tr. at 164.
---------------------------------------------------------------------------
Ukrainian officials' reaction to American requests
following President Trump's demand illuminates this concern.
When Ambassador Volker advised Mr. Yermak about ``potential
problems'' with investigations that the Zelensky administration
was contemplating into former Ukrainian President Petro
Poroshenko, Mr. Yermak retorted, ``what, you mean like asking
us to investigate Clinton and Biden?''\643\ Ambassador Volker
did not respond.\644\
---------------------------------------------------------------------------
\643\Ukraine Report at 150; Volker-Morrison Hearing Tr. at 139.
\644\Id., at 139. President Trump's removal of Ambassador
Yovanovitch following a discredited smear campaign on her character,
and subsequent comments attacking her and telling a foreign leader that
she would ``go through some things,'' contributed to this harm, as
well. As she explained, ``[i]f our chief representative is kneecapped
it limits our effectiveness to safeguard the vital national security
interests of the United States.'' Ukraine Report at 49; Yovanovitch
Hearing Tr. at 22.
---------------------------------------------------------------------------
Finally, President Trump's conduct threatened to harm
America's alliances more broadly. ``The U.S. is the most
powerful country in the history of the world in large part
because of our values, and our values have made possible the
network of alliances and partnerships that buttresses our own
strength.''\645\ Yet President Trump's scheme--using Ukraine's
desperation for military assistance and support to pressure our
ally to announce an investigation into his political rival--
shook Ukraine's ``faith in us.''\646\ Even worse, it sent a
message to our allies that the United States may withhold
critical military and security assistance for our President's
personal political benefit; if such conduct is allowed to
stand, our allies will ``constantly question the extent to
which they can count on us.''\647\
---------------------------------------------------------------------------
\645\Yovanovitch Hearing Tr. at 17.
\646\Ukraine Report at 136; Text Message from Ambassador Taylor to
Ambassador Sondland (Sept. 9, 2019, 12:31 AM).
\647\Hill-Holmes Hearing Tr. at 175.
---------------------------------------------------------------------------
President Trump ignored and injured our national security
when he corruptly abused the powers of his office for personal
political gain. As Ambassador Yovanovitch summarized in her
testimony, President Trump's ``conduct undermines the U.S.,
exposes our friends, and widens the playing field for autocrats
like President Putin. Our leadership depends on the power of
our example and the consistency of our purpose. Both have now
been opened to question.''\648\
---------------------------------------------------------------------------
\648\Yovanovitch Hearing Tr. at 19.
---------------------------------------------------------------------------
b. Free and Fair Elections
As explained at the outset, the Framers of our Constitution
were particularly fearful that a President might someday abuse
the powers of his office to undermine free and fair elections.
The heart of the Framers' project was a commitment to popular
sovereignty. In an age when ``democratic self-government
existed almost nowhere on earth,''\649\ the Framers imagined a
society ``where the true principles of representation are
understood and practi[c]ed, and where all authority flows from,
and returns at stated periods to, the people.''\650\ But that
would be possible only if ``those entrusted with [power] should
be kept in dependence on the people.''\651\ This is why the
President, and Members of Congress, must stand before the
public for re-election on fixed terms. Through free and fair
democratic elections the American people protect their system
of political self-government.
---------------------------------------------------------------------------
\649\Akhil Reed Amar, America's Constitution: A Biography 8 (2006).
\650\4 Debates in the Several State Conventions, at 331; see also
James Madison, Federalist No. 14.
\651\James Madison, Federalist No. 37, at 268.
---------------------------------------------------------------------------
President Trump's conduct ignored and injured the Nation's
fundamental interest in self-governance and free and fair
elections. As Professor Pamela S. Karlan of Stanford Law School
explained in her testimony before this Committee, ``[t]he very
idea that a President might seek the aid of a foreign
government in his reelection campaign would have horrified [the
Framers].''\652\ Professor Karlan added:
---------------------------------------------------------------------------
\652\The Impeachment Inquiry into President Donald J. Trump:
Constitutional Grounds for Presidential Impeachment Before the H. Comm.
on the Judiciary, 116th Cong. (Dec. 4, 2019) (written testimony of
Professor Pamela S. Karlan).
[O]ur elections become less free when they are distorted by
foreign interference. What happened in 2016 was bad enough:
there is widespread agreement that Russian operatives
intervened to manipulate our political process. But that
distortion is magnified if a sitting President abuses the
powers of his office actually to invite foreign intervention .
. . That is not politics as usual--at least not in the United
States or any other mature democracy. It is, instead, a
cardinal reason why the Constitution contains an impeachment
power. Put simply, a candidate for president should resist
foreign interference in our elections, not demand it.\653\
---------------------------------------------------------------------------
\653\Id.
When asked to elaborate on her view that President Trump's
conduct endangered the right to vote, which ranks among our
most precious rights, Professor Karlan observed: ``The way that
it does it is exactly what President Washington warned about,
by inviting a foreign government to influence our elections. It
takes the right away from the American people and it turns that
into a right that foreign governments decide to interfere for
their own benefit. Foreign governments don't interfere in our
elections to benefit us; they intervene to benefit
themselves.''\654\
---------------------------------------------------------------------------
\654\Id. (testimony by Professor Pamela S. Karlan in response to
question by Chairman Jerrold Nadler).
---------------------------------------------------------------------------
Ultimately, the Constitution does not care whether
President Trump, former Vice President Biden, or any other
candidate wins the 2020 United States Presidential election. It
is indifferent to political parties and individual
candidates.\655\ But it does care that we have free and fair
elections. That is why foreigners can be excluded from
activities of democratic self-government, including voting and
contributing to political candidates.\656\ And it is why a
President who uses the powers of his office to invite foreign
government interference in an election, all for his own
personal political gain, is a President who has abandoned our
constitutional commitment to democracy.\657\
---------------------------------------------------------------------------
\655\The sole exception is a provision that restricts the
Presidency to natural born citizens. U.S. CONST. art. II, Sec. 1. As
relevant here, this provision is intended to guard against improper
foreign influence in American politics. See 1 James Kent, Commentaries
on American Law 255 (1826).
\656\See Bluman v. Fed. Election Comm'n, 800 F. Supp. 2d 281
(D.D.C. 2011), aff'd, 565 U.S. 1104 (2012).
\657\See Constitutional Grounds for Impeachment (2019) at 24-28.
---------------------------------------------------------------------------
4. President Trump's Abuse of Power Encompassed Impeachable ``Bribery''
and Violations of Federal Criminal Law
The first Article of Impeachment charged President Trump
with an abuse of power as that constitutional offense has long
been understood. While there is no need for a crime to be
proven in order for impeachment to be warranted, here,
President Trump's scheme or course of conduct also encompassed
other offenses, both constitutional and criminal in character,
and it is appropriate for the Committee to recognize such
offenses in assessing the question of impeachment.
a. Constitutional Bribery
``Bribery'' under the Impeachment Clause occurs where a
President corruptly offers, solicits, or accepts something of
personal value to influence his own official actions.\658\ In
that respect, ``Bribery is . . . an especially egregious and
specific example of a President abusing his power for private
gain.''\659\ Based on their lived experience, the Framers had
good cause to view such conduct as grounds for impeachment.
Bribery was considered ``so heinous an Offence, that it was
sometimes punished as High Treason.''\660\ And it was received
wisdom in the late-17th century that nothing can be ``a greater
Temptation to Officers [than] to abuse their Power by Bribery
and Extortion.''\661\
---------------------------------------------------------------------------
\658\Id. at 3.
\659\Id. at 16.
\660\Giles Jacob, A New Law-Dictionary 95 (1729) (hereinafter ``A
New Law-Dictionary''); see also 1 W. Hawkins, A Treatise of Pleas of
the Crown, ch. 67, Sec. 6 (1716) (hereinafter ``Pleas of the Crown'')
(noting that bribery ``was sometimes viewed as High Treason'').
\661\Pleas of the Crown, ch. 67, Sec. 3.
---------------------------------------------------------------------------
Since the Founding, ``[a] number of impeachments in the
United States have charged individuals with misconduct that was
viewed as bribery.''\662\ However, ``the practice of
impeachment in the United States has tended to envelop charges
of bribery within the broader standard of `other high Crimes
and Misdemeanors'''\663\ and, for the most part, ``the specific
articles of impeachment were framed as `high crimes and
misdemeanors'' or an `impeachable offense''' without ever
``explicitly referenc[ing] bribery.''\664\ Here, the First
Article of Impeachment alleges what is, among other things, a
bribery scheme, whereby President Trump corruptly solicited
things of value from a foreign power, Ukraine, to influence his
own official actions--namely, the release of $391 million in
Congressionally-authorized assistance and a head of state
meeting at the White House.
---------------------------------------------------------------------------
\662\Cong. Research Serv., Impeachment and the Constitution 45 & n.
475 (Nov. 20, 2019).
\663\Id. at 46.
\664\Id. at 36 (describing impeachment proceedings against Judge G.
Thomas Porteous Jr. and Judge Alcee L Hastings).
---------------------------------------------------------------------------
The elements of impeachable bribery under the Constitution
are not expressly set forth in our founding document. As
Justice Joseph Story and other authorities have made clear,
however, the Anglo-American common law tradition supplies a
complete and ``proper exposition of the nature and limits of
the offense.''\665\ This Committee has reaffirmed for more than
a century that ``[t]he offense of bribery had a fixed status in
the parliamentary law as well as the criminal law of England
when our Constitution was adopted, and there is little
difficulty in determining its nature and extent in the
application of the law of impeachments in this country.''\666\
Indeed, the four legal experts who testified before this
Committee agreed on the basic definition of common law bribery:
it occurs where a President (1) offers, solicits, or accepts
(2) something of personal value (3) to influence the official
duties he is entrusted with exercising by the American people;
(4) corruptly.\667\ The experts also agreed that an impeachable
offense need not be a crime.\668\
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\665\2 Joseph Story, Commentaries on the Constitution Sec. 794
(1833).
\666\Proceedings of the United States Senate and the House of
Representatives in the Trial of Impeachment of Robert W. Archbald, S.
Doc. No. 1140, 62nd Cong., at 1695 (1913).
\667\See The Impeachment Inquiry into President Donald J. Trump:
Constitutional Grounds for Presidential Impeachment Before H. Comm. on
the Judiciary, 116th Cong. (2019) (hereinafter ``Constitutional Grounds
Hearing (2019)'') (written testimony of Professor Jonathan Turley)
(``Under the common law definition, bribery remains relatively narrow
and consistently defined among the states. `The core concept of a bribe
is an inducement improperly influencing the performance of a public
function meant to be gratuitously exercised.''') (quoting John T.
Noonan, Jr., Bribes: The Intellectual History of a Moral Id. a xi
(1984)); id. (testimony by Professor Noah R. Feldman in response to
question by Representative Jerrold L. Nadler) (``Bribery had a clear
meaning to the Framers, it was--when the President, using the power of
his office, solicits or receives something of personal value from
someone affected by his official powers.''); see also id. (written
testimony of Professor Pamela S. Karlan); id. (written testimony of
Professor Michael J. Gerhardt) (similar).
\668\See Constitutional Grounds Hearing (2019) (written testimony
of Professor Jonathan Turley); id. (written testimony of Professor Noah
R. Feldman); id. (testimony by Professor Michael J. Gerhardt in
response to question by Special Counsel Norman L. Eisen); id.
(testimony by Professor Pamela S. Karlan in response to question by
Special Counsel Norman L. Eisen); see also Constitutional Grounds for
Impeachment (2019), at 31-38.
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Two aspects of this definition merit special note. First,
at the time of the Constitutional Convention, bribery was well
understood in Anglo-American law to encompass soliciting
bribes. As Judge John T. Noonan, Jr. explains, the drafting
history of the Impeachment Clause demonstrates that ```Bribery'
was read both actively and passively, including the chief
magistrate bribing someone and being bribed.''\669\ In a
renowned bribery case involving the alleged solicitation of
bribes, Lord Mansfield explained that ``[w]herever it is a
crime to take, it is a crime to give: they are
reciprocal.''\670\ William Blackstone likewise confirmed that
``taking bribes is punished,'' just as bribery is punishable
for ``those who offer a bribe, though not taken.''\671\ In
addition, at common law, soliciting a bribe--even if it is not
accepted--completes the offense of bribery.\672\ ``[T]he
attempt is a crime; it is complete on his side who offers
it.''\673\
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\669\Noonan, Bribes, at 430; Pleas of the Crown, ch. 67, Sec. 2.
\670\Rex v. Vaughan, 98 Eng. Rep. 308, 311 (K.B. 1769).
\671\William Blackstone, Commentaries on the Laws of England, vol.
2, Book 4, ch. 10, Sec. 17 (1771); A New Law-Dictionary, at 95
(defining ``Bribery'' as ``the Receiving, or Offering, any undue Reward
. . . to act contrary to his Duty.'').
\672\See 4 William Blackstone, Commentaries *139; Rex v. Plympton,
2 Ld. Raym. 1377, 1379 (1724); Rex v. Higgins, 102 Eng. Rep. 269, 276
(1801) (``A solicitation or inciting of another, by whatever means it
is attempted, is an act done''); see also John Marshall Gest, The
Writings of Sir Edward Coke, 18 YALE L.J. 504, 522 (1909) (``Of
bribery: `They that buy will sell.''') (quoting Coke, C.J.) (citing 3
Inst. 148); Francis B. Sayre, Criminal Attempts, 41 HARV. L. REV. 821
(1928) (citing additional cases).
\673\Vaughan, 98 Eng. Rep. at 311. American courts subsequently
repeated this principle; see, e.g., State v. Ellis, 33 N.J.L. 102, 103-
04 (N.J. Sup. Ct. 1868) (importing the common law definition of bribery
to include attempts); see also William O. Russell, A Treatise on Crimes
and Misdemeanors 239-40 (1st U.S. ed. 1824).
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Second, under common law, bribery occurred when the thing
offered or solicited was of personal value to the recipient.
Common law treatises explained that a bribe broadly encompassed
``any undue Reward,'' ``valuable thing,'' or valuable
consideration, even where ``the things were small.''\674\ The
value of the thing was measured by its value to the public
official who was offering, soliciting or receiving it.\675\
Accordingly, as Professor Turley recognized in his testimony,
the common law encompassed non-pecuniary things of value--even
including, in the case of King Charles II (as would have been
well known to the Framers), ``a young French mistress.''\676\
Consistent with this broad understanding, in guarding against
foreign efforts to corrupt American officials, the Constitution
forbids any ``Person holding any Office of Profit or Trust,''
from accepting ``any present, Office or Title, of any kind
whatever, from . . . a foreign State,'' unless Congress
consents.\677\ An equally capacious view applies to the
impeachable offense of ``Bribery.''
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\674\Pleas of the Crown, ch. 67, Sec. 2; Edward Coke, The Third
Part of the Institutes of the Laws of England: Concerning High Treason,
and Other Pleas of the Crown, and Criminal Causes 147 (1644).
\675\A New Law-Dictionary, at 734 (defining the ``Value'' of a
thing to turn on ``the valuation of the owner on it.''); see also Com.
v. Callaghan, 2 Va. Cas. 460 (1825) (holding that the ``corrupt
agreement'' between two Justices of the Peace to trade votes qualified
as a misdemeanor at Common Law).
\676\Constitutional Grounds for Impeachment (2019) (written
testimony of Professor Jonathan Turley). This case was discussed on
multiple occasions at the Constitutional Convention. See, e.g., id.
(``Louis XIV bribed Charles II to sign the secret Treaty of Dover of
1670 with the payment of a massive pension and other benefits. . . . In
return, Charles II not only agreed to convert to Catholicism, but to
join France in a wartime alliance against the Dutch.'') (citing George
Clark, The Later Stuarts (1660-1714) 86-87, 130 (2d ed. 1956)); 5
Debates in the Several State Conventions, at 343 (recounting Morris's
argument that the President should be removable through the impeachment
process, noting concern that the President might ``be bribed by a
greater interest to betray his trust,'' and pointed to the example of
Charles II receiving a bribe from Louis XIV).
\677\U.S. Const., art. I, Sec. 9, cl. 8 (emphasis added).
---------------------------------------------------------------------------
Applying the constitutional definition of ``Bribery'' here,
there can be little doubt that it is satisfied. President Trump
solicited President Zelensky for a ``favor'' of great personal
value to him\678\; he did so corruptly\679\; and he did so in a
scheme to influence his own official actions respecting the
release of military and security assistance and the offer of a
White House meeting.\680\
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\678\July 25 Call Record at 3.
\679\Ukraine Report at 140 (referring to President Trump's
``scheme'' to condition release of military aid and White House meeting
on favors to benefit his reelection campaign); see supra at Section
III.D.2.
\680\Id.; see supra at Section III.D.1.c.
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b. Criminal Bribery, 18 U.S.C. Sec. 201
Although President Trump's actions need not rise to the
level of a criminal violation to justify impeachment, his
conduct here was criminal. In this section we address the
federal statute banning bribery; in the next section we address
the wire fraud statute. Both of these laws underscore the
extent to which Congress and the American people have broadly
condemned the use of a public position of trust for personal
gain. As this Committee observed decades ago, ``[n]othing is
more corrosive to the fabric of good government than
bribery.''\681\ The federal anti-bribery statute imposes up to
fifteen years' imprisonment for public officials who solicit or
obtain bribes.\682\ The wire fraud statute, in turn, imposes up
to twenty years imprisonment for public officials who breach
the public trust by depriving them of their honest
services.\683\ President Trump's violation of both statutes is
further evidence of the egregious nature of his abuse of power.
---------------------------------------------------------------------------
\681\Bribery, Graft, and Conflicts of Interest, H. Rep. No. 87-748,
at 6 (1961).
\682\18 U.S.C. Sec. 201(b)(2).
\683\18 U.S.C. Sec. Sec. 1343, 1346.
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Starting with the federal anti-bribery statute, criminal
bribery occurs when a public official (1) ``demands [or]
seeks''' (2) ``anything of value personally,'' (3) ``in return
for being influenced in the performance of any official
act.''\684\ Additionally, the public official must carry out
these actions (4) ``corruptly.''\685\ We address the four
statutory elements in turn.
---------------------------------------------------------------------------
\684\18 U.S.C. Sec. 201(b)(2).
\685\18 U.S.C. Sec. 201(b)(2)(A).
---------------------------------------------------------------------------
i. ``Demands'' or ``Seeks''
The evidence before the Committee makes clear that the
President solicited from the President of Ukraine a public
announcement that he would undertake two politically motivated
investigations. That conduct satisfies the actus reus element
of bribery under the federal criminal code.\686\ Section 201
prohibits a wide variety of solicitations, including
solicitations that are ``indirect[ ].''\687\ Courts have
concluded that a bribe was solicited, for example, where a
public official with authority to award construction contracts
requested that a contractor ``take a look at the roof'' of the
official's home.\688\ Notably, where the other elements are
met, the statutory offense of bribery is complete upon the
demand--even if the thing of value is not provided.\689\ That
is because ``the purpose of the statute is to discourage one
from seeking an advantage by attempting to influence a public
official to depart from conduct deemed essential to the public
interest.''\690\
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\686\As a threshold matter, the President is plainly a ``public
official'' within the meaning of the criminal anti-bribery statute. See
18 U.S.C. Sec. 201(a)(1) (``public official'' includes ``an officer . .
. acting for or on behalf of the United States'').
\687\18 U.S.C. Sec. 201(b)(2).
\688\United States v. Repak, 852 F.3d 230, 238 (3d Cir. 2017); see
also id. at 251-52, 254.
\689\United States v. Jacobs, 431 F.2d 754, 759-60 (2d Cir. 1970)
(reaffirming that statute ``is violated even though the official
offered a bribe is not corrupted, or the object of the bribe could not
be attained, or it could make no difference if after the act were done
it turned out that there had been actually no occasion to seek to
influence any official conduct'').
\690\Id. at 759.
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President Trump solicited from President Zelensky a public
announcement that he would conduct two politically motivated
investigations into President Trump's political rival and into
discredited claims about election interference in 2016. These
demands easily constitute solicitation under federal law. To
begin with, the President's improper solicitation is apparent
in the record of his July 25 phone call with President
Zelensky. As the record makes clear, after President Zelensky
raised the issue of United States military assistance to
Ukraine, President Trump immediately responded: ``I would like
you to do us a favor though[.]''\691\ President Trump then
explained the ``favor,'' which involved the two demands for
baseless investigations. In addition, the July 25 call ``was
neither the start nor the end'' of these demands.\692\ In the
weeks leading up to it, for example, Ambassadors Volker and
Sondland had both personally informed President Zelensky and
his staff of the President's demands and advised the Ukrainian
leader to agree to them.\693\ These and other related actions
by the President's subordinates were taken in coordination with
Rudolph Giuliani, who was understood to be ``expressing the
desires of the President of the United States.''\694\ There can
thus be no doubt that President Trump's conduct constituted a
solicitation.
---------------------------------------------------------------------------
\691\July 25 Call Record at 3.
\692\Ukraine Report at 9.
\693\Id. at 85-86.
\694\Id. at 19 (quoting Ambassador Sondland).
---------------------------------------------------------------------------
ii. ``Anything of Value Personally''
The next question is whether any of the ``things'' that
President Trump solicited from President Zelensky count as a
``things of value.'' Section 201 makes clear that bribery
occurs when the thing offered or solicited is ``anything of
value personally'' to the recipient\695\--and in this instance,
President Trump placed significant personal value on the
``favor[s]'' demanded.
---------------------------------------------------------------------------
\695\18 U.S.C. Sec. 201(b)(2) (emphasis added).
---------------------------------------------------------------------------
``The phrase `anything of value' has been interpreted
broadly to carry out the congressional purpose of punishing the
abuse of public office.''\696\ It ``is defined broadly to
include `the value which the defendant subjectively attaches to
the items received.'''\697\ For example, it has been held to
include shares of stock that had ``no commercial value'' where
the official receiving the bribe expected otherwise.\698\ As
the court in that case explained, ``[c]orruption of office
occurs when the officeholder agrees to misuse his office in the
expectation of gain, whether or not he has correctly assessed
the worth of the bribe.''\699\ The term ``thing of value''
encompasses intangible things of value as well. As used
throughout the criminal code, it has been held to include
(among other things): research work product,\700\ conjugal
visits for a prison inmate,\701\ confidential government files
about informants,\702\ information about the location of a
witness,\703\ a promise of future employment,\704\ a promise to
contact a public official,\705\ ``the amount of a confidential,
competitive bid'' for a government contract,\706\ copies of
grand jury transcripts provided to the target of an
investigation,\707\ and the testimony of a witness at a
criminal trial.\708\
---------------------------------------------------------------------------
\696\United States v. Renzi, 769 F.3d 731, 744 (9th Cir. 2014)
(emphasis added) (quoting United States v. Williams, 705 F.2d 603, 623
(2d Cir. 1983)).
\697\Id. (quoting United States v. Gorman, 807 F.2d 1299, 1305 (6th
Cir. 1986)).
\698\Williams, 705 F.2d at 622-23.
\699\Id. at 623.
\700\United States v. Croft, 750 F.2d 1354, 1361-62 (7th Cir. 1984)
(holding labor of government employee, whose research work product was
appropriated by defendant for private gain, was ``thing of value''
under theft statute, 18 U.S.C. Sec. 641). Courts have also explained
that ```Congress's frequent use of the term `thing of value' in various
criminal statutes has evolved the phrase into a term of art''' and have
therefore applied it broadly and consistently across various federal
statutes. United States v. Petrovic, 701 F.3d 849, 858 (8th Cir. 2012)
(quoting United States v. Nilsen, 967 F.2d 539, 542 (11th Cir. 1992)
(per curiam)).
\701\United States v. Marmolejo, 89 F.3d 1185, 1191-93 (5th Cir.
1996).
\702\United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979)
(holding that information was ``thing of value'' under federal theft
statute, and listing cases in which the term was held to encompass
``amusement,'' ``the testimony of a witness,'' ``the promise of sexual
intercourse,'' ``an agreement not to run in a primary election,'' and
``a promise to reinstate an employee'').
\703\United States v. Sheker, 618 F.2d 607, 608-09 (9th Cir. 1980)
(per curiam).
\704\Gorman, 807 F.2d at 1305.
\705\United States v. Scruggs, 916 F. Supp. 2d 670 (N.D. Miss.
2012) (holding promise to contact public official constituted
``anything of value'' under bribery theory of honest services fraud, 18
U.S.C. Sec. Sec. 1341, 1343, 1346).
\706\United States v. Matzkin, 14 F.3d 1014, 1020 (4th Cir. 1994).
\707\United States v. Jeter, 775 F.2d 670, 680 (6th Cir. 1985).
\708\Nilsen, 967 F.2d at 543; see also Off. of the Chair of the
Fed. Election Comm'n, The Law of a `Thing of Value: Summary of the
Sorts of Tangible and Intangible Goods and Services that Have Been
Found to Have `Value' by the Commission and Other U.S. Government
Entities 1 (2019) (``Federal courts have consistently applied an
expansive reading to the term `thing of value' in a variety of
statutory contexts to include goods and services that have tangible,
intangible, or even merely perceived benefits, for example: promises,
information, testimony, conjugal visits, and commercially worthless
stock.'').
---------------------------------------------------------------------------
In this case, President Trump indisputably placed a
subjective personal value on the announcement of investigations
that he solicited from President Zelensky. The announcement of
an investigation into President Trump's political rival would
redound to President Trump's personal benefit; and the
announcement of an investigation into purported Ukrainian
interference in the 2016 election would vindicate the
President's frequent denials that he benefitted from Russia's
assistance. Mr. Giuliani recognized as much many times as he
pursued his client's own interests in Ukraine.\709\
Furthermore, Ambassador Sondland and others testified that
President Trump's true priority was the public announcement of
these investigations more than the investigations
themselves.\710\ This fact makes clear that ``the goal was not
the investigations, but the political benefit [President] Trump
would derive from their announcement and the cloud they might
put over a political opponent.''\711\ The promotion of these
investigations and the political narratives behind them thus
``served the [President's] personal political interests . . .
because they would help him in his campaign for reelection in
2020.''\712\
---------------------------------------------------------------------------
\709\See Vogel Giuliani (Giuliani acknowledging that investigations
would produce ``information [that] will be very, very helpful to my
client'').
\710\See Ukraine Report at 21.
\711\Id.; see also id. at 134 (Ambassador Taylor testified that
according to information he had received, President Trump ``insist[ed]
that President Zelensky go to a microphone and say he is opening
investigations of Biden and 2016 election interference'').
\712\Id. at 42.
---------------------------------------------------------------------------
iii. ``In Return for Being Influenced in the Performance of
any Official Act''
In Return for Being Influenced: This element of the
criminal anti-bribery statute requires showing ``a specific
intent to give or receive something of value in exchange for an
official act.''--i.e., a quid pro quo.\713\ As detailed above,
the evidence satisfies this standard. President Trump sought an
announcement of these investigations in return for performing
two official acts. First, the President ``conditioned release
of [ ] vital military assistance . . . on [President
Zelensky's] public announcement of the investigations.''\714\
Second, he ``conditioned a head of state meeting at the White
House . . . on Ukraine publicly announcing the
investigations.''\715\
---------------------------------------------------------------------------
\713\United States v. Sun-Diamond Growers of Cal., 526 U.S. 398,
404-05 (1999) (emphasis in original).
\714\Ukraine Report at 35.
\715\Id.
---------------------------------------------------------------------------
Official Act: Federal anti-bribery law defines an
``official act'' as ``any decision or action on any question,
matter, cause, suit, proceeding or controversy'' that may be
pending or brought before a public official in that person's
official capacity.\716\ Both of the acts in question--releasing
$391 million in approved military and security assistance, and
hosting an official head-of-state diplomatic visit at the White
House--plainly qualify as ``official act[s]'' within the
meaning of the statute.
---------------------------------------------------------------------------
\716\18 U.S.C. Sec. 201(a)(3).
---------------------------------------------------------------------------
First, the release of much-needed assistance to Ukraine was
unquestionably an official act. Release of these funds,
totaling $391 million, involved a formal certification process
by the Department of Defense regarding certain preconditions
and an official notification to Congress, among other
things.\717\ In addition, President Trump's placement of a hold
on the funds precipitated ``a series of policy meetings
involving increasingly senior officials'' across numerous
federal agencies.\718\ These processes unmistakably involved
``formal exercise[s] of government power'' as defined by the
Supreme Court in McDonnell v. United States.\719\ Indeed,
McDonnell confirmed that a decision to allocate funds obviously
qualifies as an ``official act.''\720\
---------------------------------------------------------------------------
\717\Ukraine Report at 17-18.
\718\Id. at 18.
\719\136 S. Ct. 2355, 2368-70, 2372 (2016).
\720\Id. at 2370.
---------------------------------------------------------------------------
Second, when the President hosts a foreign head of state
for an official diplomatic visit, he performs an official act
specifically assigned to him by Article II of the Constitution.
The President's official functions include the duty to
``receive Ambassadors and other public Ministers.''\721\ By
receiving ambassadors and foreign heads of state under that
authority, the President recognizes the legitimacy of their
governments.\722\ Furthermore, an official diplomatic visit by
a head of state is an extensive governmental undertaking.
During the type of visit sought here (an official ``working''
visit\723\), the visiting official is typically hosted at Blair
House for several days, during which time the official meets
with the President and attends a working luncheon at the White
House, along with the Secretary of State.\724\ Such engagements
usually involve weeks of preparation and agenda-setting, at the
end of which significant new policy initiatives may be
announced.
---------------------------------------------------------------------------
\721\U.S. Const., art. II, Sec. 3.
\722\See Zivotofsky, 135 S. Ct. at 2086.
\723\See Sondland Deposition Tr. at 25; Sondland Hearing Tr. at 42.
\724\Julie Moffett, World: How the U.S. Ranks the Visits of Foreign
Heads of State, Radio Free Europe, Aug. 6, 1997.
---------------------------------------------------------------------------
For these reasons, it is beyond question that official
White House visits constitute a ``formal exercise of
governmental power'' within the meaning of McDonnell. In that
case, the Supreme Court held that the former governor of
Virginia did not perform ``official acts'' when he arranged
meetings and hosted events for a benefactor. There, however,
the actions in question were frequent and informal in nature.
Official diplomatic visits to the White House, by contrast, are
conducted pursuant to the President's express Article II
authority, involve significant use of government resources, and
entail extensive preparation. Indeed, the visiting official
must even obtain a special kind of visa--a process that itself
involves the performance of an official act.\725\
---------------------------------------------------------------------------
\725\United States v. Jefferson, 289 F. Supp. 3d 717, 738 (E.D. Va.
2017); see 9 Foreign Affairs Manual Sec. 402.3-5 (2019) (explaining
that diplomats and other foreign government officials traveling to the
United States to engage solely in official duties or activities on
behalf of their national government must obtain A-1 or A-2 visas prior
to entering the United States).
---------------------------------------------------------------------------
The context addressed by the Supreme Court in McDonnell
also bears emphasis. The governor in that case ``referred
thousands of constituents to meetings with members of his staff
and other government officials'' and routinely hosted events
for state businesses.\726\ His arrangement of meetings was
commonplace and casual, and the Court expressed deep concern
about ``chill[ing] federal officials'' interactions with the
people they serve'' by bringing those interactions within the
scope of anti-bribery laws.\727\ The context here could not be
more different, and there is no risk that applying anti-bribery
laws to this context would chill diplomatic relations. Foreign
nationals are already prohibited from donating to United States
political campaigns\728\--or, for that matter, from giving any
sorts of ``presents'' or ``emoluments'' to the President or
other officials without Congress's express consent.\729\
Application of anti-bribery laws in this context--i.e., making
it unlawful for the President to exchange official diplomatic
visits for personal benefits--is therefore consistent with and
compelled by the plain text of federal law.
---------------------------------------------------------------------------
\726\McDonnell, 136 S. Ct. at 2361-62.
\727\Id. at 2372 (internal quotation marks omitted).
\728\See 52 U.S.C. Sec. 30121.
\729\U.S. Const., art. I, Sec. 9, cl. 8.
---------------------------------------------------------------------------
iv. ``Corruptly''
President Trump behaved corruptly throughout this course of
conduct because he offered to perform official acts ``in
exchange for a private benefit,'' rather than for any public
policy purpose.\730\ Policymakers may of course trade support
or assistance, and that type of ``logrolling'' does not
constitute an exchange of bribes.\731\ But that is entirely
different from the President seeking an announcement of
investigations to serve his personal and political interests,
as he did here.\732\ Indeed, and as detailed above, the record
is clear that President Trump acted with corrupt motives,
including that:
---------------------------------------------------------------------------
\730\United States v. Blagojevich, 794 F.3d 729, 735 (7th Cir.
2015) (emphasis added).
\731\Id.
---------------------------------------------------------------------------
President Trump's request for investigations on
the July 25 call was not part of any official briefing
materials or talking points he received in preparation for the
call; nor were the investigations part of any U.S. official
policy objective.
President Trump's primary focus relating to
Ukraine during the relevant period was the announcement of
these two investigations that were not part of official U.S.
policy objectives.
There is no evidence that the President's request
for the investigations was part of a change in official U.S.
policy; that fact further supports the alternative and only
plausible explanation that President Trump pressed the public
announcements because there were of great personal, political
value to him.
President Trump's requests departed from
established channels, including because he used his personal
attorney, Mr. Giuliani, to press the investigations and never
contacted the Department of Justice or made a formal request.
President Trump's request was viewed by key United
States and Ukrainian officials as improper, unusual,
problematic, and, most importantly, purely political.
For all these reasons, President Trump's conduct satisfies
the fourth and final element of the federal anti-bribery
statute.
c. Honest Services Fraud, 18 U.S.C Sec. 1346
In addition to committing the crime of bribery, President
Trump knowingly and willfully orchestrated a scheme to defraud
the American people of his honest services as President of the
United States. In doing so, he betrayed his position of trust
and the duty he owed the citizenry to be an honest fiduciary of
their trust. That offense is codified in the federal criminal
code, which imposes up to twenty years' imprisonment for public
officials who (by mail or wire fraud) breach the public trust
by participating in a bribery scheme.\733\ In Skilling v.
United States, the Supreme Court confirmed that the statute
governing ``honest services fraud'' applies to ``bribes and
kickbacks,'' and noted that this concept ``draws content from''
the federal anti-bribery statute.\734\ As such, public
officials who engage in bribery may also be charged with honest
services fraud.\735\
---------------------------------------------------------------------------
\733\See 18 U.S.C. Sec. Sec. 1341, 1343, 1346.
\734\561 U.S. 358, 412 (2010); see also id. at 404.
\735\Governor McDonnell, for example, was also charged for honest
services fraud. See McDonnell, 136 S. Ct. at 2365. See also, e.g.,
United States v. Nagin, 810 F.3d 348, 351 (5th Cir. 2016).
---------------------------------------------------------------------------
Fundamentally, the President has deprived the American
people of the honorable stewardship that the Nation expects and
demands of its chief executive. Since Skilling, federal courts
have looked to federal bribery statutes, paying particular
attention to Section 201, to assess what constitutes willful
participation in a scheme to defraud in the provision of
``honest services.''\736\ As described above, President Trump
engaged in conduct that constitutes a violation of Section 201.
President Trump conditioned specific ``official acts''--the
provision of military and security assistance and a White House
meeting--on President Zelensky announcing investigations that
benefitted him personally, while harming national interests. In
doing so, President Trump willfully set out to defraud the
American people, through bribery, of his ``honest services.''
---------------------------------------------------------------------------
\736\See, e.g., United States v. Suhl, 885 F.3d 1106, 1111 (8th
Cir. 2018), cert. denied, 139 S. Ct. 172 (2018); Woodward v. United
States, 905 F.3d 40, 44 (1st Cir. 2018).
---------------------------------------------------------------------------
The underlying wire fraud statute, upon which the ``honest
services'' crime is based, requires a transmission by ``wire,
radio, or television communication in interstate or foreign
commerce any writings . . . for the purpose of executing [a] .
. . scheme or artifice.''\737\ President Trump's July 25 call
to President Zelensky, as well as his July 26 call to
Ambassador Gordon Sondland both were foreign wire
communications made in furtherance of an ongoing bribery
scheme. Thus, the President's telephone calls on July 25th and
July 26th lay bare the final element to find him criminally
liable for his failure to provide ``honest services'' to the
American people.
---------------------------------------------------------------------------
\737\18 U.S.C. Sec. 1343.
---------------------------------------------------------------------------
d. Conclusion
For the reasons given above, President Trump's abuse of
power encompassed both the constitutional offense of
``Bribery'' and multiple federal crimes. He has betrayed the
national interest, the people of this Nation, and should not be
permitted to be above the law. It is therefore all the more
vital that he be removed from office.
5. President Trump Poses a Continuing Threat if Left in Office
Impeachment exists ``not to inflict personal punishment for
past wrongdoing, but rather to protect against future
Presidential misconduct that would endanger democracy and the
rule of law.''\738\ By virtue of the conduct encompassed by the
First Article of Impeachment, President Trump ``has
demonstrated that he will remain a threat to national security
and the Constitution if allowed to remain in office, and has
acted in a manner grossly incompatible with self-governance and
the rule of law.'' That is true in at least two respects:
first, he has shown no remorse or regret, but rather insists
that his conduct was ``perfect'' and continues to engage in
misconduct; and second, the egregiousness and complexity of his
scheme confirm his willingness to abuse the powers of his
office for private gain.
---------------------------------------------------------------------------
\738\Constitutional Grounds for Impeachment (2019) at 10.
---------------------------------------------------------------------------
a. Lack of Remorse and Continued Misconduct
``It is true that the President has expressed regret for
his personal misconduct. But he has never--he has never--
accepted responsibility for breaking the law. He has never
taken that essential step . . . He has stubbornly resisted any
effort to be held accountable for his violations of the law,
for his violations of his constitutional oath, and his
violation of his duty as President. To this day, he remains
adamantly unrepentant.''\739\
---------------------------------------------------------------------------
\739\Proceedings of the U.S. Senate in the Impeachment Trial of
President William Jefferson Clinton Vol. II: Floor Trial Proceedings,
106th Cong. 1471 (1999) (statement of Rep. Charles Canady).
---------------------------------------------------------------------------
Representative Charles Canady, serving as a House Manager,
spoke those words while urging the Senate to uphold articles of
impeachment against President Clinton. They apply here with
full force and only one modification: it is not true ``that the
President has expressed regret for his personal misconduct.''
When President Trump, for his own personal political gain,
asked for a favor from President Zelensky, he did exactly what
our Framers feared most. He invited the influence of a foreign
power into our elections--and used the powers of his office to
secure that advantage at the direct expense of our national
security. Yet President Trump has admitted to no wrongdoing. He
maintains that he was always in the right and that his July 25
call with President Zelensky was ``perfect.''\740\ President
Trump has made it clear that he believes he is free to use his
Presidential powers the same way, to the same ends, whenever
and wherever he pleases.
---------------------------------------------------------------------------
\740\Ukraine Report at 10.
---------------------------------------------------------------------------
Any doubt on that score is resolved by his conduct since
the scheme came to light. He has made repeated false
statements. He has stonewalled Congressional investigators and
ordered others to do the same. He has argued that it is
illegitimate for the House to investigate him. He has stayed in
contact with Mr. Giuliani, his private lawyer, who remains hard
at work advancing his client's personal interests in Ukraine.
He has attacked Members of the House, as well as witnesses in
House proceedings, who questioned his conduct. He has asserted
and exercised the prerogative to urge foreign nations to
investigate citizens who dare to challenge him
politically.\741\
---------------------------------------------------------------------------
\741\See Ukraine Report at 140-50; 207-60.
---------------------------------------------------------------------------
Indeed, even after the Speaker announced the impeachment
inquiry, President Trump stated on October 2, ``And just so you
know, we've been investigating, on a personal basis--through
Rudy and others, lawyers--corruption in the 2016
election.''\742\ The next day, President Trump went further: he
not only acknowledged that he wanted Ukraine to investigate
former Vice President Biden, but also publicly suggested that
China should do the same. When asked what he hoped President
Zelensky would do about the Bidens, he stated as follows:
---------------------------------------------------------------------------
\742\The White House, Remarks by President Trump and President
Niinisto of the Republic of Finland in Joint Press Conference (Oct. 2,
2019).
Well, I would think that, if they were honest about
it, they'd start a major investigation into the Bidens.
It's a very simple answer. They should investigate the
Bidens, because how does a company that's newly
formed--and all these companies, if you look at--And,
by the way, likewise, China should start an
investigation into the Bidens, because what happened in
China is just about as bad as what happened with--with
Ukraine. So, I would say that President Zelensky--if it
were me, I would recommend that they start an
investigation into the Bidens. Because nobody has any
doubt that they weren't crooked. That was a crooked
deal--100 percent. He had no knowledge of energy;
didn't know the first thing about it. All of a sudden,
he is getting $50,000 a month, plus a lot of other
things. Nobody has any doubt. And they got rid of a
prosecutor who was a very tough prosecutor. They got
rid of him. Now they're trying to make it the opposite
way. But they got rid--So, if I were the President, I
would certainly recommend that of Ukraine.\743\
---------------------------------------------------------------------------
\743\The White House, Remarks by President Trump Before Marine One
Departure (Oct. 3, 2019).
President Trump added that asking President Xi of China to
investigate the Bidens ``is certainly something we can start
thinking about.''\744\ And the day after that, on October 4, in
remarks before he departed on Marine One, the President stated:
---------------------------------------------------------------------------
\744\Id.
When you look at what Biden and his son did, and when
you look at other people--what they've done. And I
believe there was tremendous corruption with Biden, but
I think there was beyond--I mean, beyond corruption--
having to do with the 2016 campaign, and what these
lowlifes did to so many people, to hurt so many people
in the Trump campaign--which was successful, despite
all of the fighting us. I mean, despite all of the
unfairness.\745\
---------------------------------------------------------------------------
\745\The White House, Remarks by President Trump Before Marine One
Departure (Oct. 4, 2019).
President Trump then once again reiterated his willingness
to solicit foreign assistance related to his personal
interests: ``Here's what's okay: If we feel there's corruption,
like I feel there was in the 2016 campaign--there was
tremendous corruption against me--if we feel there's
corruption, we have a right to go to a foreign country.''
b. The Egregiousness of the President's Conduct Confirms His
Willingness to Abuse His Power for Personal Political Gain
The first Article of Impeachment does not seek President
Trump's removal for an isolated error of judgment on the July
25 phone call, or for a mere series of related misjudgments in
his public statements since then. The President's abuse of
power involved a course of conduct in which he willfully chose,
time and again, to place his own personal political gain above
our national security and commitment to free and fair
elections. He did so in ways large and small, using many
Executive Branch agencies, offices, and officers to advance his
corrupt agenda throughout 2019. Some may have joined knowingly;
others, including several witnesses who testified before the
Investigating Committees, only recognized the impropriety of
the activity once the White House released the record of the
President's July 25 call with President Zelensky or were
dragooned against their will and resisted within the bounds of
professional propriety. In the end, President Trump relied on a
network of agents within and beyond the United States
government to bend our Ukraine policy to use the powers of the
presidency to harm a prominent political opponent, all at the
expense of our security and democracy.
No private citizen could do this. Ordinary citizens cannot
deny White House meetings, block Congressionally-appropriated
military and security assistance, or condition such official
acts on an agreement to sabotage their political opponents.
These powers reside in the Office of the President. It was thus
solely by virtue of powers entrusted to his office that
President Trump could distort our foreign policy, and weaken
our national security, to his own personal political gain. His
conduct is thus an ``abuse or violation of . . . public trust''
and evokes the Framers' fear that ``the Executive will have
great opportunitys [sic] of abusing his power.''\746\ It also
demonstrates that he will continue to engage in such abuses
unless he is removed from office.
---------------------------------------------------------------------------
\746\2 Farrand, Records of the Federal Convention, at 67 (statement
of Edmund Randolph).
---------------------------------------------------------------------------
The Minority has objected that there is no such risk
because the assistance to Ukraine was eventually released. But
that is irrelevant. The fact that the President's scheme was
discovered and disrupted does not cure his abuse of power or
suggest that he will honor his Oath of Office in the future.
That is true as a matter of law and as a matter of fact.
Starting with the law, as this Committee made clear in
President Nixon's case, a President who tries and fails to
abuse power remains subject to removal for his underlying
wrong.\747\ George Mason confirmed this principle at the
Constitutional Convention, where he declared that ``attempts to
subvert the Constitution'' rank as ``great and dangerous
offenses.''\748\ That is because attempts can still reveal the
President as a threat to our society. Impeachment exists to
save the Nation from such threats; we need not wait for harm to
befall, or for the President to try again, before deeming his
conduct impeachable.\749\ This principle applies with added
force where the President has insisted that he did nothing
wrong and has unrepentantly continued his pattern of
misconduct.
---------------------------------------------------------------------------
\747\See Nixon Impeachment Report at 82-136.
\748\Cass R. Sunstein, Impeachment: A Citizen's Guide 47 (2017).
\749\As Professor Feldman testified, ``If the President of the
United States attempts to abuse his office, that is a complete
impeachable offense. The possibility that the President might get
caught in the process of attempting to abuse his office and then not be
able to pull it off does not undercut in any way the impeachability of
the act. . . . The attempt itself is the impeachable act.''
Constitutional Grounds Hearing (2019).
---------------------------------------------------------------------------
Turning to the facts, the military and security assistance
was released to Ukraine only after President Trump got caught.
On August 12, 2019, a whistleblower filed a complaint
concerning the President's July 25 call and his actions towards
Ukraine.\750\ In late August, the President's counsel
reportedly briefed President Trump about the complaint.\751\ On
September 5, The Washington Post published an editorial
alleging that President Trump had withheld aid to Ukraine in an
attempt ``to force Mr. Zelensky to intervene in the 2020 U.S.
presidential election by launching an investigation of the
leading Democratic candidate, Joe Biden.''\752\ On September 9,
several House Committees launched an investigation into
``reported efforts by President Trump, the President's personal
lawyer Rudy Giuliani, and possibly others to pressure the
government of Ukraine to assist the President's reelection
campaign.''\753\ On September 10, Intelligence Committee
Chairman Adam Schiff requested that the complaint be provided
to the Committee, as required by law.\754\ Finally, on
September 11, without any public explanation, President Trump
abruptly ordered that the assistance be released to Ukraine;
remarkably, he still has not held a White House meeting with
President Zelensky.
---------------------------------------------------------------------------
\750\Letter from Michael K. Atkinson, Inspector General of the
Intelligence Community, to Adam Schiff, Chairman, H. Permanent Select
Comm. on Intelligence, and Devin Nunes, Ranking Member, H. Permanent
Select Comm. on Intelligence (Sept. 9, 2019).
\751\Michael S. Schmidt et al., Trump Knew of Whistleblower
Complaint When He Released Aid to Ukraine, N.Y. Times, Nov. 26, 2019.
\752\Editorial, Trump Tries to Force Ukraine to Meddle in the 2020
Election, Wash. Post, Sept. 5, 2019.
\753\H. Perm. Select Comm. on Intelligence, Three House Committees
Launch Wide-Ranging Investigation into Trump-Giuliani Ukraine Scheme
(Sept. 9, 2019).
\754\Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, to Joseph Maguire, Acting Director of Nat'l Intelligence
(Sept. 10, 2019).
---------------------------------------------------------------------------
This delay in releasing the assistance had significant
real-world consequences. By the time the President ordered the
release of security assistance to Ukraine, the Department of
Defense was unable to spend approximately 14 percent of the
funds appropriated by Congress for Fiscal Year 2019; as a
result, Congress had to pass a new law to extend the funding in
order to ensure the full amount could be used by Ukraine to
defend itself.\755\ Moreover, by delaying the assistance for
purposes understood by United States and Ukrainian officials as
corrupt, President Trump harmed our relationship with Ukraine,
signaled vulnerability to Russia, and more broadly injured
American credibility and national security. As Ambassador
Taylor testified, President Vladimir Putin of Russia would
``love to see the humiliation of President Zelensky at the
hands of the Americans,''\756\ which ``would give the Russians
a freer hand.''\757\ Ambassador Taylor further emphasized that
the Ukrainians ``counted on . . . the assurance of U.S.
support'' and so the hold on assistance had ``shaken their
faith in us.''\758\ President Zelensky echoed a similar
sentiment in a recent interview with Time: ``I don't want us to
look like beggars. But you have to understand, we're at war. If
you're our strategic partner, then you can't go blocking
anything for us.''\759\
---------------------------------------------------------------------------
\755\Cooper-Hale Hearing Tr. at 13, 69; see also Continuing
Appropriations Act, 2020, and Health Extenders Act of 2019, H.R. 4378,
116th Cong (2019).
\756\Taylor-Kent Hearing Tr. at 40.
\757\Taylor Dep. Tr. at 210.
\758\Id. at 28, 39.
\759\Simon Shuster, `I Don't Trust Anyone at All.' Ukrainian
President Volodymyr Zelensky Speaks Out on Trump, Putin and a Divided
Europe, Time, Dec. 2, 2019.
---------------------------------------------------------------------------
The bottom line is that President Trump used for personal
political gain the powers entrusted to his office. He did so
knowingly, deliberately, and repeatedly. He involved parts of
the Executive Branch in his scheme. He undermined American
security and democracy to help ensure his re-election--and did
not care. And after he was caught, President Trump not only
insisted his conduct was acceptable and did everything in his
power to obstruct Congress's investigation into his misconduct,
he also sought to normalize and justify his behavior by
publicly soliciting foreign powers to investigate a citizen who
is challenging him in next year's election.
A President who acts this way believes he stands above the
law. That belief is itself a guarantee that allowing him to
remain in our highest office, vested with our mightiest
political powers, poses a continuing threat to the
Constitution. Unless he is stopped, President Trump will
continue to erode our democracy and the fundamental values on
which the Nation was founded.
6. Consistency with Previous Conduct
The First Article of Impeachment impeaches President Trump
for abuse of power relating to Ukraine. Yet, as noted in that
Article, President Trump's conduct is ``consistent with
President Trump's previous invitations of foreign interference
in United States elections.'' An understanding of those
previous efforts, and the pattern of misconduct they represent,
sheds light on the particular conduct set forth in that Article
as sufficient grounds for the impeachment of President Trump.
These previous efforts include inviting and welcoming
Russian interference in the 2016 United States Presidential
election. On July 27, 2016, then-candidate Trump declared at a
public rally: ``Russia, if you're listening, I hope you're able
to find the 30,000 emails that are missing. I think you will
probably be rewarded mightily by our press.''\760\ The
referenced emails were stored on a personal server used by
then-candidate Trump's political opponent, Hillary Clinton. And
Russia was listening. Within approximately five hours of
Trump's statement, Russian hackers targeted Clinton's personal
office and the referenced emails for the very first time.\761\
---------------------------------------------------------------------------
\760\Mueller Report, Vol. I at 49.
\761\Id.
---------------------------------------------------------------------------
In the fall of 2016, as Election Day approached, WikiLeaks
began publishing stolen emails that were damaging to the
Clinton Campaign. WikiLeaks received these e-mails from the
GRU, a Russian military group. Rather than condemn this
interference in our elections, then-candidate Trump repeatedly
praised and encouraged Wikileaks. For instance, he said on
October 10, 2016: ``This just came out. WikiLeaks! I love
WikiLeaks!''\762\ Two days later, he said: ``This WikiLeaks
stuff is unbelievable. It tells you the inner heart, you gotta
read it.''\763\ Similar statements from then-Candidate Trump
continued over the following weeks. As the Special Counsel
testified before House Committees, to call these statements
``problematic'' would be an ``understatement'' because they
gave ``hope or some boost to what is and should be illegal
activity.''\764\
---------------------------------------------------------------------------
\762\Former Special Counsel Robert S. Mueller, III on the
Investigation into Russian Interference in the 2016 Presidential
Election: Hearing Before the H. Perm. Select Comm. on Intelligence,
116th Cong. 49 (July 24, 2019) (hereinafter ``HPSCI Mueller Hearing'').
\763\Id. at 48-49.
\764\Id.
---------------------------------------------------------------------------
During this period, senior members of the Trump Campaign
were maintaining significant contacts with Russian nationals
and seeking damaging information on candidate Hillary
Clinton.\765\ Among other evidence of such contacts, the
Special Counsel's Report notes that President Trump somehow
knew in advance about upcoming releases of stolen emails;\766\
that the Trump Campaign's foreign policy adviser met repeatedly
with Russian officials who claimed to have ``dirt'' on Clinton
``in the form of thousands of emails'';\767\ and that Trump
Campaign Chairman Paul Manafort caused internal campaign
polling data to be shared with a Russian national.\768\ There
is no indication that anyone from the Trump Campaign, including
the candidate, reported any of these contacts or offers of
foreign assistance to U.S. law enforcement.\769\
---------------------------------------------------------------------------
\765\Mueller Report, Vol. I at 5-7, 66-144.
\766\Id. at 54.
\767\Id. at 5-6. This individual--George Papadopoulos has since
been sentenced to 14 days in prison for lying to the F.B.I. about his
contacts with Russian intermediaries during the 2016 presidential race.
See Mark Mazzetti & Sharon LaFraniere, George Papadopoulos, Ex-Trump
Adviser, Is Sentenced to 14 Days in Jail, N.Y. Times, Sept. 7, 2018.
\768\Mueller Report, Vol. I at 129. Mr. Manafort has since been
sentenced to over 7 years in prison for various federal crimes,
including conspiracy against the United States and obstruction of
justice. See id., Vol I at 129 n.838.
\769\See HPSCI Mueller Hearing Tr. at 29.
---------------------------------------------------------------------------
A redacted version of the Special Counsel's Report was
released to the public on April 18, 2019. The evidence obtained
by the Special Counsel relating to this conduct, including
Russia's attack on our elections, resulted in the criminal
indictment of more than a dozen defendants.\770\ It also
indicated that the President had sought to thwart rather than
advance the Special Counsel's investigation into Russian
interference. When this Committee conducted its own
investigation, President Trump similarly sought to thwart
rather than advance those fact-finding efforts.
---------------------------------------------------------------------------
\770\Mueller Report, Vol. I at 14 n.4; see also id., Vol. I at 174-
75.
---------------------------------------------------------------------------
Since the release of the Special Counsel's report,
President Trump has confirmed his willingness to welcome and
invite foreign interference in our elections. For example, two
months after the report was released and while President Trump
was under congressional investigation, he admitted on live
television that he would still welcome foreign interference. In
an interview with George Stephanopoulos, President Trump
disputed the idea that if a foreign government provided
information on a political opponent--as Russia had done in
2016--it would be considered interference in our elections:
``[I]t's not an interference, they have information--I think
I'd take it if I thought there was something wrong, I'd go
maybe to the FBI--if I thought there was something wrong. But
when somebody comes up with oppo research, right, they come up
with oppo research, `oh let's call the FBI.' The FBI doesn't
have enough agents to take care of it.''\771\
---------------------------------------------------------------------------
\771\Interview by George Stephanopoulos of President Donald Trump,
ABC News, Jun. 13, 2019.
---------------------------------------------------------------------------
On July 24, 2019, the Special Counsel testified before
HPSCI and this Committee.\772\ He affirmed his Report's
evidence, which showed that--despite over 100 contacts between
individuals associated with the Trump Campaign and Russian
nationals or their agents while Russia was attacking our
elections--no one from the Trump Campaign reported those
contacts to law enforcement.\773\ The Special Counsel
emphasized to the Committees that reporting such information is
something that Presidential campaigns ``would and should do,''
not least because ``knowingly accepting foreign assistance
during a Presidential campaign'' is a crime.\774\
---------------------------------------------------------------------------
\772\Oversight of the Report on the Investigation into Russian
Interference in the 2016 Presidential Election: Former Special Counsel
Robert S. Mueller, III: Before the H. Comm. On the Judiciary, 116th
Cong. (July 24, 2019); see also HPSCI Mueller Hearing.
\773\See Karen Yourish & Larry Buchanan, Mueller Report Shows Depth
of Connections Between Trump Campaign and Russians, N.Y. Times, Apr.
19, 2019.
\774\HPSCI Mueller Hearing Tr. at 30.
---------------------------------------------------------------------------
The next day, however, President Trump did the opposite: he
did not just accept and fail to report foreign interference in
our elections, he demanded it on his July 25 call with
President Zelensky. Moreover, this time he leveraged the powers
of his presidential office, including military and security
assistance and a White House visit, against a vulnerable
foreign ally.
The Constitution creates a democracy that derives its power
from the American people. Elections are crucial to that system
of self-government. But the Framers knew that elections alone
could ``not guarantee that the United States would remain a
republic'' if ``unscrupulous officials''' rigged the process.
President Trump has done just that. He has done it before, he
has done it here, and he has made clear he will do it again. As
Professor Karlan observes, what happened in ``2016 was bad
enough: there is a widespread agreement that Russian operatives
intervened to manipulate our political process.''\775\ But
``that distortion is magnified'' when the President uses his
official powers to procure and induce foreign intervention, all
as part of a scheme to ensure his own re-election.\776\
---------------------------------------------------------------------------
\775\Constitutional Grounds Hearing (2019) (written testimony of
Professor Pamela S. Karlan).
\776\Id.
---------------------------------------------------------------------------
Although the First Article of Impeachment addresses
President Trump's solicitation and pressuring of Ukraine to
announce two investigations for his own personal political
benefit, as well as his persistence in such conduct since the
scheme came to light, the consistency of this scheme with his
broader pattern of welcoming and inviting foreign interference
into our elections is relevant and striking.
E. IT IS NECESSARY TO APPROVE ARTICLES OF IMPEACHMENT WITHOUT DELAY
There is an instinct in any investigation to seek more
evidence, interview more witnesses, and turn over every
remaining stone. But there also comes a point when the evidence
is powerful enough, and the danger of delay is great enough,
that inaction is irresponsible. We have reached that point
here. For all the reasons given above, President Trump will
continue to threaten the Nation's security, democracy, and
constitutional system if he is allowed to remain in office.
That threat is not hypothetical. As noted above, President
Trump has persisted during this impeachment inquiry in
soliciting foreign powers to investigate his political
opponent. The President steadfastly insists that he did nothing
wrong and is free to do it all again. Every day that this
Committee fails to act is thus another day that the President
might use the powers of his office to rig the election while
ignoring or injuring vital national interests. In Chairman
Schiff's words: ``The argument `Why don't you just wait?'
amounts to this: `Why don't you just let him cheat in one more
election? Why not let him cheat just one more time? Why not let
him have foreign help just one more time?'''\777\
---------------------------------------------------------------------------
\777\Allan Smith & Rebecca Shabad, House Leaders Unveil Two
Articles of Impeachment, Accusing Trump of `High Crimes and
Misdemeanors,' NBC News, Dec. 10, 2019 (quoting Chairman Schiff).
---------------------------------------------------------------------------
Members of the Minority have objected that the evidence is
too thin; that it rests entirely on hearsay, speculation, and
presumptions. That accusation is false. The evidentiary record
developed by the Investigating Committees is extensive. The
Committees heard more than 100 hours of deposition testimony
from 17 witnesses with personal knowledge of key events. HPSCI
heard an additional 30 hours of public testimony from 12 of
those witnesses.\778\ In addition, the Committees considered
the records of President Trump's phone calls with President
Zelensky. They obtained hundreds of text messages, which
navigate the months-long efforts by Mr. Giuliani and United
States officials to push Ukraine to make a public statement
announcing the politically-motivated investigations sought by
President Trump. They relied on hundreds of public statements,
interviews, and tweets by the President and Mr. Giuliani, his
personal attorney, unabashedly describing efforts to pursue
investigations into former Vice President Biden prior to the
2020 election. And they relied on the press briefing by Mr.
Mulvaney, who confirmed why the military and security
assistance was withheld and then told Americans to ``get over''
it.\779\
---------------------------------------------------------------------------
\778\Ukraine Report at 7.
\779\Id. at 12; The White House, Press Briefing by Acting Chief of
Staff Mick Mulvaney (Oct. 17, 2019).
---------------------------------------------------------------------------
The record contains extensive direct evidence--powerfully
corroborated by circumstantial evidence--rendering the key
facts indisputable. Most critically, the record includes the
President's own words on the July 25 call, which by itself
reveals his corrupt scheme. It includes testimony and
contemporaneous text messages from Ambassadors Volker and
Sondland, who were directed by the President to ``Talk to
Rudy,''\780\ and who pushed Ukrainian officials to publicly
announce the two investigations to ``break the logjam'' on
assistance and a White House visit.\781\ It includes the
testimony of three first-hand witnesses to the July 25 phone
call. It includes the testimony of Mr. Holmes, who overheard
President Trump ask Ambassador Sondland whether President
Zelensky was ``going to do the investigation,''\782\ and who
was then told by Ambassador Sondland that President Trump cared
only about the ``big stuff'' (namely, the investigations and
nothing else relating to Ukraine).\783\ It includes the
testimony of Ambassador Sondland, a political appointee of the
President who had multiple discussions with him--and who
confirmed that there was a ``quid pro quo'' relating to the
potential White House visit for President Zelensky, and that,
in light of President Trump's statements and conduct, it became
clear that assistance was also conditioned on an announcement
of the investigations.\784\
---------------------------------------------------------------------------
\780\Sondland Dep. Tr. at 62; Volker Dep. Tr. 305; Morrison-Volker
Hearing Tr. at 39.
\781\Sondland Hearing Tr. at 29.
\782\Hill-Holmes Hearing Tr. at 29.
\783\Id.
\784\Sondland Hearing Tr. at 26.
---------------------------------------------------------------------------
Collectively, the evidence gathered by the Investigating
Committees is consistent, reliable, well-corroborated, and
derived from diverse sources. It paints a detailed picture of
President Trump's scheme. To the extent that the Committees did
not obtain additional documents--or additional testimony from
witnesses with personal knowledge of the relevant events--that
is a direct consequence of the President's unprecedented,
categorical, and indiscriminate order that the entire Executive
Branch unlawfully defy duly authorized Congressional subpoenas.
As explained in the discussion of the Second Article of
Impeachment, the President's obstruction of Congress is not
cured by the possibility of judicial review, which, among other
difficulties, would undoubtedly last well beyond the very
election that President Trump seeks to corrupt. Given the
President's unlawful cover up, and given the powerful evidence
of a looming Presidential threat to the next election, this
Committee cannot stand silent. Nor can it agree that the record
is insufficient just because it could be broader. The record
stands firmly on its own two feet. Indeed, President Trump has
not stonewalled the entire impeachment inquiry so that he can
protect a hidden trove of exculpatory evidence.
Put simply, President Trump's own words reveal that he
solicited a foreign government to investigate his political
rival. The President did so for his own political gain, rather
than for foreign policy reasons. The testimony of experienced,
expert officials in his own administration--including several
of his own appointees--reveal that the President used his
official powers as leverage to pressure a vulnerable strategic
partner to do his bidding. And every indication, every piece of
evidence, supports that the President will abuse his power
again. Under these circumstances, Congress is duty-bound to
invoke its ``sole Power of Impeachment.''
IV. Conclusion
To the Framers of our Constitution, tyranny was no
abstraction. They had suffered under King George III. They had
studied republics that faltered when public virtue fell to
private vice. They knew that freedom demands constant
protection from leaders whose taste of power sparks a voracious
need for more. So even as they created a powerful Presidency,
they authorized Congress to impeach and remove Presidents whose
persistence in office threatened the Constitution. As they
designed this impeachment power, they turned repeatedly to
three risks: corrupt abuse of power; betrayal of the nation
through foreign entanglements; and corruption of free and fair
elections.
President Trump has realized the Framers' worst nightmare.
He has abused his power in soliciting and pressuring a
vulnerable foreign nation to corrupt the next United States
Presidential election by sabotaging a political opponent and
endorsing a debunked conspiracy theory promoted by our
adversary, Russia. President Trump has done all this for his
own personal gain, rather than for any legitimate reason, and
has compromised our national security and democratic system in
the process. After he was caught, President Trump defiantly
insisted his conduct was ``perfect.''
Democracy is fragile. Men and women have fought and died to
protect ours--and for the right to participate in it. The
President of the United States is a steward of that system, in
which ``We the People'' are sovereign. His duty is to uphold
the Constitution and protect our lives and liberty. But
President Trump has betrayed that trust. He has placed his own
interest in retaining power above our national security and
commitment to self-governance. He has done so before, he has
done so here, and he will undoubtedly do so again. To protect
the Nation, and preserve our freedom, President Trump must be
impeached by the House of Representatives for abuse of power.
Article II: Obstruction of Congress
I. The Second Article of Impeachment
The Constitution provides that the House of Representatives
``shall have the sole Power of Impeachment'' and that the
President ``shall be removed from Office on Impeachment for,
and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.'' In his conduct of the office of President of
the United States--and in violation of his constitutional oath
faithfully to execute the office of President of the United
States and, to the best of his ability, preserve, protect, and
defend the Constitution of the United States, and in violation
of his constitutional duty to take care that the laws be
faithfully executed--Donald J. Trump has directed the
unprecedented, categorical, and indiscriminate defiance of
subpoenas issued by the House of Representatives pursuant to
its ``sole Power of Impeachment''. President Trump has abused
the powers of the Presidency in a manner offensive to, and
subversive of, the Constitution, in that:
The House of Representatives has engaged in an impeachment
inquiry focused on President Trump's corrupt solicitation of
the Government of Ukraine to interfere in the 2020 United
States Presidential election. As part of this impeachment
inquiry, the Committees undertaking the investigation served
subpoenas seeking documents and testimony deemed vital to the
inquiry from various Executive Branch agencies and offices, and
current and former officials.
In response, without lawful cause or excuse, President
Trump directed Executive Branch agencies, offices, and
officials not to comply with those subpoenas. President Trump
thus interposed the powers of the Presidency against the lawful
subpoenas of the House of Representatives, and assumed to
himself functions and judgments necessary to the exercise of
the ``sole Power of Impeachment'' vested by the Constitution in
the House of Representatives.
President Trump abused the powers of his high office
through the following means:
(1) Directing the White House to defy a lawful
subpoena by withholding the production of documents
sought therein by the Committees.
(2) Directing other Executive Branch agencies and
offices to defy lawful subpoenas and withhold the
production of documents and records from the
Committees--in response to which the Department of
State, Office of Management and Budget, Department of
Energy, and Department of Defense refused to produce a
single document or record.
(3) Directing current and former Executive Branch
officials not to cooperate with the Committees--in
response to which nine Administration officials defied
subpoenas for testimony, namely John Michael ``Mick''
Mulvaney, Robert B. Blair, John A. Eisenberg, Michael
Ellis, Preston Wells Griffith, Russell T. Vought,
Michael Duffey, Brian McCormack, and T. Ulrich
Brechbuhl.
These actions were consistent with President Trump's
previous efforts to undermine United States Government
investigations into foreign interference in United States
elections.
Through these actions, President Trump sought to arrogate
to himself the right to determine the propriety, scope, and
nature of an impeachment inquiry into his own conduct, as well
as the unilateral prerogative to deny any and all information
to the House of Representatives in the exercise of its ``sole
Power of Impeachment''. In the history of the Republic, no
President has ever ordered the complete defiance of an
impeachment inquiry or sought to obstruct and impede so
comprehensively the ability of the House of Representatives to
investigate ``high Crimes and Misdemeanors''. This abuse of
office served to cover up the President's own repeated
misconduct and to seize and control the power of impeachment--
and thus to nullify a vital constitutional safeguard vested
solely in the House of Representatives.
In all of this, President Trump has acted in a manner
contrary to his trust as President and subversive of
constitutional government, to the great prejudice of the cause
of law and justice, and to the manifest injury of the people of
the United States.
Wherefore, President Trump, by such conduct, has
demonstrated that he will remain a threat to the Constitution
if allowed to remain in office, and has acted in a manner
grossly incompatible with self-governance and the rule of law.
President Trump thus warrants impeachment and trial, removal
from office, and disqualification to hold and enjoy any office
of honor, trust, or profit under the United States.
II. Introduction
This Nation has no kings. Unlike a monarch, whose every
word is law, the President of the United States answers to the
Constitution and the American people. He ordinarily does so
through elections, legislative oversight, judicial review, and
public scrutiny. In truly extraordinary cases, however, the
Constitution empowers the House of Representatives to hold the
President accountable through its ``sole Power of
Impeachment.''\785\ This power is not to be exercised lightly.
It is one of the greatest powers in the Constitution. But when
the House, in its own independent judgment, has cause to
suspect the President of committing ``high Crimes and
Misdemeanors,'' it has the constitutional right and duty to
investigate his conduct.\786\ As Presidents, legislators, and
judges have long recognized, that authority inheres in the
``sole Power of Impeachment,'' which would be undermined if the
House lacked a thorough power of inquiry.
---------------------------------------------------------------------------
\785\U.S. Const., art. I, Sec. 2, cl. 5.
\786\U.S. Const., art. II, Sec. 4.
---------------------------------------------------------------------------
In the history of the Republic, no President has ever
claimed the unilateral prerogative to categorically and
indiscriminately defy a House impeachment inquiry. Nor has any
President ever directed his administration to do so. On the
contrary, every President to address the issue has acknowledged
that Congress possesses a broad and penetrating power of
inquiry when investigating grounds for impeachment. Even
President Richard M. Nixon, who resisted full personal
compliance with House subpoenas, instructed his staff to
testify voluntarily in the Senate Watergate inquiry: ``All
members of the White House Staff will appear voluntarily when
requested by the committee. They will testify under oath, and
they will answer fully all proper questions.''\787\
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\787\The White House, Remarks by President Nixon (Apr. 17, 1973).
---------------------------------------------------------------------------
Presidents wield extraordinary power, but they do so under
law. That law provides the House with sole authority to impeach
Presidents. It does not allow Presidents to dictate the terms
on which they will be impeached or investigated for impeachable
offenses, to order subordinates to break the law by ignoring
subpoenas, or to use executive power to orchestrate a cover up.
The Constitution confirms that the House alone, and not the
President, determines what documents and testimony are relevant
to its exercise of the impeachment power.
If allowed to stand, President Trump's actions will
undermine the Constitution's defenses against a tyrannical
President. Over the past months, the House has engaged in an
impeachment inquiry focused on President Trump's corrupt
solicitation and inducement of Ukrainian interference in the
2020 United States Presidential Election. As part of this
inquiry, the Investigating Committees served subpoenas on
various Executive Branch agencies and offices, as well as
current and former officials, seeking documents and testimony
relevant to the investigation. President Trump responded by
directing all Executive Branch agencies, offices, and officials
not to cooperate with the impeachment inquiry. In so doing, he
arrogated to himself the power to determine when and how an
impeachment inquiry should be carried out. President Trump's
direction has no precedent in American history. His order to
the Executive Branch was categorical and indiscriminate. It did
not allow for any case-by-case weighing of privacy or national
security interests, nor did it permit any efforts at
accommodation or compromise. Through his order, the President
slammed the door shut.
Following President Trump's direction, and at his behest,
the White House, the Department of State under Secretary
Michael R. Pompeo, the Office of Management and Budget under
Acting Director Russell T. Vought, the Department of Energy
under Secretary James Richard ``Rick'' Perry, and the
Department of Defense under Secretary Mark T. Esper refused to
produce a single document or record in response to
Congressional subpoenas. Moreover, adhering to President
Trump's direction, nine Administration officials defied
subpoenas for testimony, namely John Michael ``Mick'' Mulvaney,
Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston
Wells Griffith, Russell T. Vought, Michael Duffey, Brian
McCormack, and T. Ulrich Brechbuhl. In directing these
agencies, offices, and officials to disobey subpoenas,
President Trump prevented Congress from obtaining additional
evidence highly pertinent to the House's impeachment inquiry.
He did so, moreover, through an official direction lacking any
valid cause or excuse--and that strikingly reflected his
previous pattern of obstructing United States government
investigations into foreign interference in our elections. By
engaging in this conduct, President Trump grossly abused his
power and sought to arrogate to himself the right to determine
the propriety, scope, and nature of an impeachment inquiry into
his own wrongdoing.
Despite President Trump's obstruction, the Investigating
Committees gathered overwhelming evidence of his misconduct
from courageous public servants who were willing to follow the
law, comply with subpoenas, and tell the truth. On the basis of
that formidable body of evidence, the House Committee on the
Judiciary recommends the adoption of the First Article of
Impeachment.
Yet there can be no doubt that President Trump's blanket
defiance of Congressional subpoenas, and his direction that
many others defy such subpoenas, substantially interfered with
the House's efforts to fulfill its constitutional
responsibilities. ``If left unanswered, President Trump's
ongoing effort to thwart Congress' impeachment power risks
doing grave harm to the institution of Congress, the balance of
power between our branches of government, and the
Constitutional order that the President and every Member of
Congress have sworn to protect and defend.''\788\
---------------------------------------------------------------------------
\788\The Trump-Ukraine Impeachment Inquiry Report: Report for the
H. Perm. Select Comm. on Intelligence Pursuant to H. Res. 660 in
Consultation with the H. Comm. on Oversight and Reform and the H. Comm.
on Foreign Affairs at 28, 116th Cong. (2019) (hereinafter ``Ukraine
Report'').
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President Trump's obstruction of Congress does not befit
the leader of a democratic society. It calls to mind the very
claims of royal privilege against which our Founders rebelled.
Nor is President Trump's obstruction mitigated by a veneer of
legal arguments. Some conclusions are so obviously wrong that
their premises cannot be taken seriously; that is true of
President Trump's theory that he sets the terms of his own
impeachment. Through this conduct, President Trump has shown
his rejection of checks and balances. A President who will not
abide legal restraint or supervision is a President who poses
an ongoing threat to our liberty and security.
The Second Article of Impeachment reflects the judgment of
the Committee that President Trump committed ``high Crimes and
Misdemeanors'' in directing the unprecedented, categorical, and
indiscriminate defiance of subpoenas issued by the House
pursuant to its ``sole Power of Impeachment.'' As the Article
explains: ``This abuse of office amounts to an effort by the
President to seize and control the power of impeachment--and
thus to nullify a vital constitutional safeguard vested solely
in the House of Representatives.''\789\
---------------------------------------------------------------------------
\789\H. Res. 755, Articles of Impeachment Against President Donald
J. Trump, 116th Cong. (Dec. 11, 2019).
---------------------------------------------------------------------------
III. President Trump Committed ``High Crimes and Misdemeanors'' in
Directing Categorical and Indiscriminate Defiance of the House
Impeachment Inquiry
Under our Constitution, the House is empowered to
investigate grounds for impeachment and the President is
required to cooperate with such investigations. Given the
impeachment power's central role in protecting the Nation from
Presidential wrongdoing--and as confirmed by historical
practice and precedent--Congressional investigative authority
is at its constitutional zenith during an impeachment inquiry.
When the House takes up its ``sole Power of Impeachment,'' the
overwhelming presumption is that its subpoenas must be and will
be obeyed, including by the President and all other recipients
in the Executive Branch. In such cases, the House acts not only
pursuant to its ordinary legislative powers, but also serves as
a ``grand inquest of the nation.''\790\ It is therefore
presumed that ``all the archives and papers of the Executive
Departments, public or private, would be subject to . . .
inspection'' and ``every facility in the power of the Executive
[would] be afforded to enable [the House] to prosecute the
investigation.''\791\
---------------------------------------------------------------------------
\790\Report of the Committee on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, H. Rep. No. 93-1305
at 207 (1974) (quoting President Polk) (citations omitted) (hereinafter
``Committee Report on Nixon Articles of Impeachment (1974)'').
\791\Id.
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In contravention of those settled principles, and in
violation of the assignment of powers under the Constitution,
President Trump has defied a subpoena served on the White
House. He has also directed other agencies, offices, and
officials across the Executive Branch to violate their own
obligations under the law. His direction has been complete and
wholly unqualified in nature. Rather than undertake a process
of dialogue and accommodation, the President has stonewalled
all investigative prerogatives and interests held by the House
in an impeachment inquiry. Although the Justice Department and
individual Executive Branch officials have additionally raised
specific objections to certain subpoenas--none of which have
merit--President Trump's general direction that the Executive
Branch obstruct Congress has rendered those objections
practically irrelevant. President Trump's unprecedented conduct
thus raises a single question: Is it an impeachable offense
under the Constitution for the President to direct the
categorical and indiscriminate defiance of subpoenas issued
pursuant to a House impeachment inquiry?
The Committee has undertaken a thorough survey of relevant
authorities and concludes that the answer is plainly ``yes.''
This is not a close case. President Trump has asserted and
exercised the unilateral prerogative to direct complete
defiance of every single impeachment-related subpoena served on
the Executive Branch. He has purported to justify this
obstruction by attacking the motives, procedures, and
legitimacy of the House impeachment inquiry--in overt violation
of our Constitution, which vests the House (and not the
President) with the ``sole Power of Impeachment.''
Simply stated, these are not judgments for the President to
make. His position would place Presidents in control of a power
meant to restrain their own abuses. That is not what the
Constitution provides. As Judiciary Committee Chairman Peter W.
Rodino correctly explained to President Nixon in May 1974,
``[u]nder the Constitution it is not within the power of the
President to conduct an inquiry into his own impeachment, to
determine which evidence, and what version or portion of that
evidence, is relevant and necessary to such an inquiry. These
are matters which, under the Constitution, the House has the
sole power to determine.''\792\
---------------------------------------------------------------------------
\792\Committee Report on Nixon Articles of Impeachment (1974), at
194.
---------------------------------------------------------------------------
President Trump's direction to obstruct the House
impeachment inquiry is thus grossly incompatible with, and
subversive of, the Constitution. It marks a dangerous step
toward debilitating the Impeachment Clause and unraveling the
Framers' plan. This claim of Presidential power is also
recognizably wrong--as every President in American history,
except President Trump, has in fact recognized. Through his
conduct, President Trump's has revealed himself as a continuing
threat to constitutional governance if he remains in office. It
is one thing for a President to use harsh rhetoric in
criticizing an impeachment inquiry. It is something else
entirely for that President to declare such an inquiry
``illegitimate'' and use his official powers to stonewall the
House.\793\ A President who declares himself above impeachment
is a President who sees himself as above the law. That
President is a monarch in all but name and imperils our
democracy.\794\
---------------------------------------------------------------------------
\793\Letter from Pat A. Cipollone, Counsel to the President, The
White House, to Hon. Nancy Pelosi, Speaker of the House, Hon. Adam B.
Schiff, Chairman, H. Perm. Select Comm. on Intelligence, Hon. Eliot L.
Engel, Chairman, H. Foreign Affairs Comm., and Hon. Elijah E. Cummings,
Chairman, H. Comm. on Oversight and Reform, at 8 (Oct. 8, 2019)
(hereinafter, ``Oct. 8 Cipollone Letter'').
\794\See The Federalist No. 69, at 444-45 (Alexander Hamilton)
(Benjamin Fletcher Wright ed. 1961) (``The President of the United
States would be liable to be impeached, tried, and, upon conviction of
treason, bribery, or other high crimes or misdemeanors, removed from
office; and would afterwards be liable to prosecution and punishment in
the ordinary course of law. The person of the king of Great Britain is
sacred and inviolable; there is no constitutional tribunal to which he
is amenable; no punishment to which he can be subjected without
involving the crisis of a national revolution.'').
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To explain our judgment that President Trump's conduct
constitutes ``high Crimes and Misdemeanors,'' we first describe
the House's power of inquiry, as well as its power to
investigate grounds for impeachment. We next confirm the
Committee's assessment from President Nixon's case that
obstruction of a House impeachment inquiry is an impeachable
offense. Finally, we apply the law to President Trump's
conduct, consider his various excuses, and assess whether he
remains a continuing threat to constitutional governance and
democracy if allowed to remain in office.
A. THE HOUSE'S POWER OF INQUIRY
``[L]egislative subpoenas are older than our country
itself.''\795\ They originated in the English Parliament,
``when that body, as part of its campaign to `challenge the
absolute power of the monarch,' asserted `plenary authority' to
hold offending parties in contempt.''\796\ By the late 17th
century, ``[t]he privileges and powers of the [House of]
Commons''--which include the linked powers of contempt and
inquiry--``were naturally assumed to be an incident of the
representative assemblies of the Thirteen Colonies.''\797\ In
part for that reason, ``[a]fter the Revolutionary War and the
Constitutional Convention, the U.S. Congress wasted little time
in asserting its power to use compulsory process to investigate
matters of national--and potentially legislative--
importance.''\798\ Such Congressional oversight activity was
grounded in Article I of the Constitution, which grants
Congress ``[a]ll legislative Powers,''\799\ and authorizes
``[e]ach House [to] determine the Rules of its
Proceedings.''\800\ Through these provisions, the Constitution
vests the House with a ``power of inquiry,'' including
``process to enforce it,'' as an ``essential and appropriate
auxiliary to the legislative function.''\801\
---------------------------------------------------------------------------
\795\Trump v. Mazars USA, LLP, 940 F.3d 710, 718 (D.C. Cir. 2019),
cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)
(``Mazars'').
\796\Id. (quoting Watkins v. United States, 354 U.S. 178, 188
(1957)).
\797\Id. (citations omitted).
\798\Id.; see also M'Culloch v. State, 17 U.S. 316, 401 (1819)
(``[A] doubtful question . . . if not put at rest by the practice of
the government, ought to receive a considerable impression from that
practice.'').
\799\U.S. Const., art. I, Sec. 1.
\800\Id. at Sec. 5.
\801\McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
---------------------------------------------------------------------------
``So long as the [House] is investigating a matter on which
Congress can ultimately propose and enact legislation, the
[House] may issue subpoenas in furtherance of its power of
inquiry.''\802\ And the House's constitutional authority ``to
conduct investigations'' is ``broad.''\803\ ``It encompasses
inquiries concerning the administration of existing laws as
well as proposed or possibly needed statutes,'' ``[i]t includes
surveys of defects in our social, economic or political system
for the purpose of enabling the Congress to remedy them,'' and
``[i]t comprehends probes into departments of the Federal
Government to expose corruption, inefficiency or waste.''\804\
Congress may not usurp the constitutional functions of other
branches of government, violate individual rights, engage in
law enforcement, or investigate topics over which it cannot
legislate.\805\ But apart from these narrow limitations, ``[a]
legislative inquiry may be as broad, as searching, and as
exhaustive as is necessary to make effective the constitutional
powers of Congress.''\806\ Moreover, the ultimate outcome of
oversight need not be apparent from the outset for it to be
proper: ``The very nature of the investigative function--like
any research--is that it takes the searchers up some `blind
alleys' and into nonproductive enterprises. To be a valid
legislative inquiry there need be no predictable end
result.''\807\
---------------------------------------------------------------------------
\802\Comm. on Judiciary, U.S. House of Representatives v. Miers,
558 F. Supp. 2d 53, 77 (D.D.C. 2008).
\803\Watkins, 354 U.S. at 187; accord Eastland v. U.S. Servicemen's
Fund, 421 U.S. 491, 504 n.15 (1975) (``[T]he power to investigate is
necessarily broad.''); Barenblatt v. United States, 360 U.S. 109, 111
(1959) (describing Congress's investigative power as ``broad''); Quinn
v. United States, 349 U.S. 155, 161 (1955) (same); McGrain, 273 U.S.,
at 173-74 (same).
\804\Watkins, 354 U.S. at 187.
\805\See Mazars, 940 F.3d at 723.
\806\Townsend v. United States, 95 F.2d 352, 361 (D.C. Cir. 1938);
accord Mazars, 940 F.3d at 723.
\807\Eastland, 421 U.S. at 509.
---------------------------------------------------------------------------
Consistent with Congress's role in checking the Executive
Branch, ``Presidents, too, have often been the subjects of
Congress's legislative investigations.''\808\ ``Historical
examples stretch far back in time and broadly across subject
matters,'' ranging from investigations of contract fraud under
President Andrew Jackson, to allegations that President Abraham
Lincoln was mishandling military strategy during the Civil War,
to charges that President Franklin D. Roosevelt had incited the
Japanese into bombing Pearl Harbor, to President Nixon and the
Watergate scandal, to President Ronald W. Reagan's involvement
in the Iran-Contra Affair, to President William J. Clinton and
Whitewater, to the Benghazi investigation under President
Barack H. Obama.\809\
---------------------------------------------------------------------------
\808\Mazars, 940 F.3d at 721.
\809\See id. at 721-22; see also Ukraine Report, at 205-206.
---------------------------------------------------------------------------
As the Supreme Court has observed, ``[w]ithout the power to
investigate--including of course the authority to compel
testimony, either through its own processes or through judicial
trial--Congress could be seriously handicapped in its efforts
to exercise its constitutional function wisely and
effectively.''\810\esidential obstruction of legislative
subpoenas thus undermines Congress's constitutional function,
offends the separation of powers, and effectively places the
President above the law.
---------------------------------------------------------------------------
\810\Quinn, 349 U.S. at 160-61 (citations omitted).
---------------------------------------------------------------------------
B. THE HOUSE'S POWER TO INVESTIGATE GROUNDS FOR IMPEACHMENT
In light of the impeachment power's central role in our
system of checks and balances, the House's investigative
authority is at its peak during an impeachment inquiry. All
three branches of the federal government have repeatedly
confirmed this point.
When the Framers authorized the House to impeach
Presidents, they necessarily empowered it to obtain and examine
evidence deemed necessary to the exercise of that
constitutional responsibility. This understanding follows
directly from the Constitutional Convention. There, several
delegates opposed including an impeachment power in the
Constitution. They warned that it would be ``destructive of
[the executive's] independence.''\811\ The majority of
delegates agreed that allowing impeachment would affect the
separation of powers--but welcomed that result. As George Mason
declared, ``[n]o point is of more importance than that the
right of impeachment should be continued.''\812\ Alexander
Hamilton, in turn, later observed that ``the powers relating to
impeachments'' are ``an essential check in the hands of
[Congress] upon the encroachments of the executive.''\813\ Many
Americans in this period agreed that impeachment played an
important role; it would keep Presidents in line and protect
the Nation from abuse, betrayal, or corruption. Thus, even as
the Constitution created a powerful presidency, it included a
safety valve for emergencies.
---------------------------------------------------------------------------
\811\2 Farrand, Records of the Federal Convention, at 67.
\812\2 Farrand, Records of the Federal Convention, at 65.
\813\The Federalist No. 66, at 431 (Alexander Hamilton) (Benjamin
Fletcher Wright ed., 1961).
---------------------------------------------------------------------------
Yet the impeachment power could not serve that role if the
House were unable to investigate the facts necessary to make an
informed impeachment determination, or if the President could
liberally obstruct such efforts. This was recognized early on.
In 1796, the House requested that President George Washington
provide it with sensitive diplomatic materials relating to the
Jay Treaty. President Washington famously declined this request
on the ground that it exceeded the House's role and intruded
upon his executive functions. But in that same letter,
President Washington agreed that impeachment would change his
calculus: ``It does not occur that the inspection of the papers
asked for can be relative to any purpose under the cognizance
of the House of Representatives, except that of an impeachment,
which the resolution has not expressed.''\814\ In the ensuing
House debates, one Member noted that President Washington had
``admitted, by implication, that where the House expresses an
intention to impeach, the right to demand from the Executive
all papers and information in his possession belongs to
it.''\815\ And President Washington was right, because ``the
sole Power'' of impeachment includes ``a right to inspect every
paper and transaction in any department, otherwise the power of
impeachment could never be exercised with any effect.''\816\
---------------------------------------------------------------------------
\814\George Washington, Message to the House Regarding Documents
Relative to the Jay Treaty (Mar. 30, 1796) (emphasis added),
(hereinafter ``Message on Jay Treaty''); see also Laurence H. Tribe &
Joshua Matz, To End A Presidency: The Power of Impeachment 153-155
(2018) (hereinafter ``To End A Presidency'') (discussing scattered
calls in local newspapers for the impeachment of President Washington
over his handling of the Jay Treaty).
\815\Frauds Upon Indians--Right of the President to Withhold
Papers, H.R. Rep. No. 27-271, at 12 (1843); see also Message on Jay
Treaty (``It does not occur that the inspection of the papers asked for
can be relative to any purpose under the cognizance of the House of
Representatives, except that of an impeachment, which the resolution
has not expressed.'').
\816\Committee Report on Nixon Articles of Impeachment (1974) at
206 (citing 5 Annals of Congress 601 (1796)).
---------------------------------------------------------------------------
In 1833, Supreme Court Justice Joseph Story emphasized the
House's broad investigatory power in impeachments--and the
importance of not permitting the President to obstruct such
inquiries. In his influential Commentaries on the Constitution
of the United States, Justice Story addressed the interaction
between impeachment and Presidential pardons. While doing so,
he pointedly observed that ``[t]he power of impeachment will
generally be applied to persons holding high offices under the
government; and it is of great consequence that the President
should not have the power of preventing a thorough
investigation of their conduct, or of securing them against the
disgrace of a public conviction by impeachment.''\817\
---------------------------------------------------------------------------
\817\3 Joseph Story, Commentaries on the Constitution of the United
States Sec. 1495 at 352 (1833) (emphasis added).
---------------------------------------------------------------------------
In 1842, amid ongoing strife between the House and
President John Tyler, the House took substantial steps toward
an impeachment inquiry.\818\ During a dispute with President
Tyler over the production of documents--which he ultimately
provided--a Committee of the House confirmed its robust
understanding of the power to investigate impeachable offenses:
---------------------------------------------------------------------------
\818\Tribe and Matz, To End A Presidency at 19-20.
The House of Representatives has the sole power of
impeachment. The President himself in the discharge of
his most independent functions, is subject to the
exercise of this power which implied the right of
inquiry on the part of the House to the fullest and
most unlimited extent. . . . If the House possess the
power to impeach, it must likewise possess all the
incidents of that power--the power to compel the
attendance of all witnesses and the production of all
such papers as may be considered necessary to prove the
charges on which impeachment is founded. If it did not,
the power of impeachment conferred upon it by the
Constitution would be nugatory. It could not exercise
it with effect.\819\
---------------------------------------------------------------------------
\819\ Committee Report on Nixon Articles of Impeachment (1974) at
206 (internal citations omitted).
Consistent with this precedent, President James K. Polk
``cheerfully admitted'' in 1846 the right of the House to
investigate the conduct of all government officers with a view
to exercising its impeachment power.\820\ ``In such a case,''
he wrote:
---------------------------------------------------------------------------
\820\Committee Report on Nixon Articles of Impeachment (1974) at
207.
[T]he safety of the Republic would be the supreme
law, and the power of the House in the pursuit of this
object would penetrate into the most secret recesses of
the Executive Departments. It could command the
attendance of any and every agent of the Government,
and compel them to produce all papers, public or
private, official or unofficial, and to testify on oath
to all facts within their knowledge.\821\
---------------------------------------------------------------------------
\821\Committee Report on Nixon Articles of Impeachment (1974) at
207 (internal citations omitted).
President Andrew Johnson conducted himself in accordance
with this understanding when the Judiciary Committee undertook
an initial inquiry into grounds for impeachment. During that
investigation, which occurred in 1867, the Committee obtained
executive and Presidential records; interviewed cabinet
officers and Presidential aides about cabinet meetings and
conversations with the President; and examined a number of
Presidential decisions, including Presidential pardons, the
issuance of executive orders, the implementation of
Congressional Reconstruction, and the vetoing of
legislation.\822\ Multiple witnesses, moreover, answered
questions about the opinions of the President, statements made
by the President, and advice given to the President.\823\
Significantly, as this Committee has previously summarized,
``[t]here is no evidence that [President] Johnson ever asserted
any privilege to prevent disclosure of presidential
conversations to the Committee, or failed to comply with any of
the Committee's requests.''\824\
---------------------------------------------------------------------------
\822\Committee Report on Nixon Articles of Impeachment (1974) at
206 (internal citations omitted).
\823\When asked to disclose a conversation between himself and
President Johnson regarding the preparation of a veto message, an
advisor named Jeremiah Black thus agreed he was ``bound in conscience
to answer a question which that tribunal declares he ought to answer;
that he is himself not the judge of what he ought to answer and what he
ought not.'' Committee Report on Nixon Articles of Impeachment (1974)
at 207.
\824\Id.
---------------------------------------------------------------------------
With only a few exceptions, invocations of the impeachment
power largely subsided from 1868 to 1972.\825\ Yet even in that
period, while objecting to acts of ordinary legislative
oversight, Presidents Ulysses S. Grant, S. Grover Cleveland,
and Theodore Roosevelt each noted that Congress could obtain a
broader set of Executive Branch documents in an impeachment
inquiry.\826\
---------------------------------------------------------------------------
\825\Tribe and Matz, To End A Presidency at 156-169.
\826\See Staff of H. Comm. on the Judiciary, 116th Cong.,
Constitutional Grounds for Presidential Impeachment 42 (Comm. Print
2019) (citing Jonathan David Shaub, The Executive's Privilege:
Rethinking the President's Power to Withhold Information, Lawfare (Oct.
31, 2019)) (hereinafter ``Constitutional Grounds for Impeachment
(2019)'').
---------------------------------------------------------------------------
In 1973 and 1974, this Committee investigated whether
President Nixon had committed ``high Crimes and Misdemeanors.''
During that period, the Senate also investigated events
relating to the Watergate break-in and its aftermath. Faced
with these inquiries, President Nixon allowed senior
administration officials to testify voluntarily in the Senate.
As a result, many senior White House officials testified,
including White House Counsel John W. Dean III, White House
Chief of Staff H.R. ``Bob'' Haldeman, Deputy Assistant to the
President Alexander P. Butterfield, and Chief Advisor to the
President for Domestic Affairs John D. Ehrlichman.\827\
President Nixon also produced numerous documents and records in
response to Congressional subpoenas, including more than 30
transcripts of White House recordings and notes from meetings
with the President.\828\ This was consistent with prior
practice. As the Judiciary Committee explained at the time:
``Before the current inquiry, sixty-nine Federal officials had
been the subject of impeachment investigations. With the
possible exception of one minor official who invoked the
privilege against self-incrimination, not one of them
challenged the power of the committee conducting the
investigation to compel the production of evidence it deemed
necessary.''\829\
---------------------------------------------------------------------------
\827\See, e.g., Senate Select Committee on Presidential Campaign
Activities, Testimony of John Dean, Watergate and Related Activities,
Phase I: Watergate Investigation, 93d Cong. (June 25, 1973); Senate
Select Committee on Presidential Campaign Activities, Testimony of H.R.
Haldeman, Watergate and Related Activities, Phase I: Watergate
Investigation, 93d Cong. (July 30, 1973); Senate Select Committee on
Presidential Campaign Activities, Testimony of Alexander Butterfield,
Watergate and Related Activities, Phase I: Watergate Investigation, 93d
Cong. (July 16, 1973); Senate Select Committee on Presidential Campaign
Activities, Testimony of John Ehrlichman, Watergate and Related
Activities, Phase I: Watergate Investigation, 93d Cong. (July 24,
1973); see also Ukraine Report at 206.
\828\Committee Report on Nixon Articles of Impeachment (1974) at
196.
\829\Id. at 206 (footnote omitted).
---------------------------------------------------------------------------
However, President Nixon's production of records was
incomplete in a very important respect: he did not produce key
tape recordings of Oval Office conversations, and some of the
transcripts of such recordings that he produced were heavily
edited or inaccurate.\830\ President Nixon claimed that his
noncompliance with House subpoenas was necessary to protect the
confidentiality of Presidential conversations. But as we
explain further in the next section, this Committee rejected
his arguments and approved an article of impeachment against
President Nixon for obstruction of the House's impeachment
inquiry.\831\
---------------------------------------------------------------------------
\830\Id. at 203.
\831\Id. at 382-83.
---------------------------------------------------------------------------
Twenty-four years later, the House undertook impeachment
proceedings against President Clinton. Consistent with
precedent, he ``pledged to cooperate fully with the
[impeachment] investigation.''\832\ And although the House
engaged in very little independent fact-finding, President
Clinton substantially cooperated, providing written responses
to 81 interrogatories from the Judiciary Committee during the
impeachment inquiry--as well as his own DNA.\833\
---------------------------------------------------------------------------
\832\Andrew Miga, White House in Crisis, Boston Herald, Oct. 9,
1998.
\833\Impeachment of William Jefferson Clinton, President of the
United States: Report of the Committee on the Judiciary, H. Rep. No.
105-830 at 77 (1998) (``On November 5, 1998, the Committee presented
President Clinton with 81 requests for admission.'') (hereinafter
``Committee Report on Clinton Articles of Impeachment (1998)''). The
Judiciary Committee nevertheless concluded that President Clinton's
failure to respond to certain written requests for admission, and his
alleged perjurious, false, and misleading sworn statements in response
to other requests, warranted impeachment. Id. at 76 (Article IV). This
proposed article of impeachment, however, was voted down on the House
floor. 144 Cong. Rec. H11975, 12042 (1998).
---------------------------------------------------------------------------
Thus, Presidents have long recognized that the House enjoys
a nearly plenary power of inquiry while investigating grounds
for impeachment. This conclusion is further supported by an
additional Executive Branch policy. In the current view of the
Department of Justice (DOJ)--the accuracy of which we do not
here opine upon--the President cannot be indicted or face
criminal prosecution while in office.\834\ As support for that
view, DOJ has reasoned that a President ``who engages in
criminal behavior falling into the category of `high Crimes and
Misdemeanors''' is ``always subject to removal from office upon
impeachment by the House and conviction by the Senate.''\835\
DOJ adds that ``the constitutionally specified impeachment
process ensures that the immunity [of a sitting President from
prosecution] would not place the President `above the
law.'''\836\ Given DOJ's refusal to indict or prosecute a
sitting President, impeachment and removal may be one of the
few available mechanisms to hold a President immediately
accountable for criminal conduct also constituting ``high
Crimes and Misdemeanors.'' On that view, the House must have
broad access to evidence supporting or refuting allegations of
impeachable misconduct, since an unduly narrow view of the
House's authority would place the President beyond all legal
constraint.
---------------------------------------------------------------------------
\834\See A Sitting President's Amenability to Indictment and
Criminal Prosecution, 24 Op. O.L.C. 222, 260 (2000).
\835\Id. at 257.
\836\Id.
---------------------------------------------------------------------------
The Judiciary has similarly concluded that the House enjoys
broad investigative power in an impeachment setting. In
Kilbourn v. Thompson, for example, the Supreme Court
invalidated a contempt order by the House, but emphasized that
``the whole aspect of the case would have changed'' were it an
impeachment proceeding, since ``[w]here the question of such
impeachment is before either [House of Congress] acting in its
appropriate sphere on that subject, we see no reason to doubt
the right to compel the attendance of witnesses, and their
answer to proper questions, in the same manner and by the use
of the same means that courts of justice can in like
cases.''\837\
---------------------------------------------------------------------------
\837\Kilbourn v. Thompson, 103 U.S. 168, 190, 194 (1880); see also
Barry v. U.S. ex rel. Cunningham, 279 U.S. 597, 616 (1929) (recognizing
that the Senate would have added power to compel witness testimony in
an impeachment trial).
---------------------------------------------------------------------------
More recently, Judge John J. Sirica's influential opinion
on the Watergate ``road map'' likewise emphasized the special
and substantial weight assigned to legislative interests in an
impeachment context: ``[I]t should not be forgotten that we
deal in a matter of the most critical moment to the Nation, an
impeachment investigation involving the President of the United
States. It would be difficult to conceive of a more compelling
need than that of this country for an unswervingly fair inquiry
based on all the pertinent information.''\838\ Sitting en banc,
the United States Court of Appeals for the District of Columbia
Circuit further recognized that the House has enhanced legal
powers to obtain material from the President in an impeachment
inquiry because ``[t]he investigative authority of the
Judiciary Committee with respect to presidential conduct has an
express constitutional source.''\839\
---------------------------------------------------------------------------
\838\In re Report & Recommendation of June 5, 1972 Grand Jury
Concerning Transmission of Evidence to House of Representatives, 370 F.
Supp. 1219, 1230 (D.D.C. 1974).
\839\Senate Select Comm. on Presidential Campaign Activities v.
Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974).
---------------------------------------------------------------------------
A spate of decisions from the 1980s further support the
House's robust investigative powers during impeachment. In
Nixon v. Fitzgerald, the Supreme Court announced a rule of
absolute Presidential immunity from civil damages.\840\ In so
doing, it emphasized that this rule ``will not leave the Nation
without sufficient protection against misconduct on the part of
the Chief Executive,'' since ``there remains the constitutional
remedy of impeachment.''\841\ The Court pointedly added that
``[v]igilant oversight by Congress also may serve to deter
Presidential abuses of office, as well as to make credible the
threat of impeachment.''\842\ This statement constituted a
recognition by the Court that the House cannot effectively
exercise its impeachment power without the ability to undertake
``vigilant oversight.''\843\
---------------------------------------------------------------------------
\840\Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982) (``[W]e hold
that petitioner, as a former President of the United States, is
entitled to absolute immunity from damages liability predicated on his
official acts.'').
\841\Id. at 757.
\842\Id.
\843\Id.
---------------------------------------------------------------------------
Over the following years, several federal courts agreed. In
1984, the United States Court of Appeals for the Eleventh
Circuit emphasized that impeachment inquiries require courts to
place a heavy thumb on the scale in favor of turning over
materials to Congressional investigators.\844\ Three years
later, a district judge elaborated that courts have limited
power to constrain legislative investigations in an impeachment
setting: ``Ancillary to the sole power of impeachment vested in
the House by the Constitution is the power to disclose the
evidence that it receives as it sees fit. Again, recognition of
the doctrine of separation of powers precludes the judiciary
from imposing restrictions on the exercise of the impeachment
power.''\845\ In affirming this decision, the Eleventh Circuit
noted that ``[p]ublic confidence in a procedure as political
and public as impeachment is an important consideration
justifying disclosure'' of grand jury materials to
Congress.\846\
---------------------------------------------------------------------------
\844\See In re Petition to Inspect & Copy Grand Jury Materials, 735
F.2d 1261, 1269-71 (11th Cir. 1984) (``Moreover, the question under
investigation--whether an Article III judge should be recommended for
impeachment by the Congress, otherwise disciplined, or granted a clean
bill of health--is a matter of great societal importance. Given the
character of an investigating committee and what is at stake--the
public confidence in the judiciary, the independence and reputation of
the accused judge--paragraph (c)(5) must in our view be read, with very
few strings, as conferring authority to look into whatever is material
to a determination of the truth or falsity of the charges.'').
\845\In re Grand Jury Proceedings of Grand Jury No. 81-1, 669 F.
Supp. 1072, 1078 (S.D. Fla. 1987).
\846\In re Request for Access to Grand Jury Materials Grand Jury
No. 81-1, Miami, 833 F.2d 1438, 1445 (11th Cir. 1987).
---------------------------------------------------------------------------
More recent opinions have echoed these points. As one judge
observed, when ``subpoenas [are] issued in connection with an
impeachment proceeding. . . . Congress's investigatory powers
are at their peak.''\847\ Other judges have more broadly
emphasized the public interest in obtaining Executive Branch
records that may be relevant to an ongoing impeachment
inquiry.\848\
---------------------------------------------------------------------------
\847\Trump v. Deutsche Bank AG, No. 19-1540, 2019 WL 6482561 at *38
n.1 (2d Cir. Dec. 3, 2019) (Livingston, J., concurring part and
dissenting in part); see also Comm. on the Judiciary, U.S. House of
Representatives v. Donald F. McGahn II, No. 19 Civ. 2379, 2019 WL
6463406 at *6 (D.D.C. Dec. 2, 2019) (emphasizing ``the public's
interest in thorough and well-informed impeachment proceedings.''); In
re Application of Comm. on Judiciary, U.S. House of Representatives,
for an Order Authorizing Release of Certain Grand Jury Materials, No.
19-48, 2019 WL 5608827 at *3 (D.D.C. Oct. 29, 2019) (```[A]n
impeachment investigation involving the President of the United States
is a matter of the most critical moment to the Nation' . . . Both HJC
itself and the public, therefore, have an interest in HJC gaining
immediate access to this grand jury material.'') (citations and
quotation marks omitted)).
\848\See, e.g., Ctr. for Pub. Integrity v. U.S. Dep't of Def., No.
19 Civ. 3265, 2019 WL 6270921 at *3 (D.D.C. Nov. 25, 2019)
(``Currently, the [House] is in the process of conducting impeachment
proceedings concerning the same subject matter as the documents
requested by Plaintiff. As such, the requested documents are sought in
order to inform the public on a matter of extreme national concern.
Only an informed electorate can develop its opinions and persuasively
petition its elected officials to act in ways which further the aims of
those opinions.''); Am. Oversight v. U.S. Dep't of State, No. 19 Civ.
2934, 2019 WL 5665930 at *4 (D.D.C. Oct. 25, 2019) (``This is the
extraordinary case where the public interest favors placing American
Oversight's requests ahead of other requests in the State Department's
FOIA queue. Presidential impeachment investigations are solemn affairs,
which Congress thankfully has seen fit to undertake only a few times in
the Nation's history. The records American Oversight seeks, if they
exist, could directly inform the present investigation and the
surrounding public debate. The public's interest in disclosure of
responsive, non-exempt records is therefore high and outweighs any harm
to other FOIA requesters that might result from a temporary diversion
of the State Department's FOIA resources to accelerate processing of
this request.'').
---------------------------------------------------------------------------
``Long settled and established practice is a consideration
of great weight in a proper interpretation of constitutional
provisions regulating the relationship between Congress and the
President.''\849\ Viewed together, the practices and express
statements set forth above confirm that the House enjoys an
exceedingly expansive power of inquiry when investigating
grounds for impeachment. Because the House's interests in any
such inquiry evoke the interests underlying the impeachment
power itself, subpoenas issued by a House impeachment inquiry
should overcome nearly any countervailing interest or
privilege. Finally, by virtue of the plain language of Article
I of the Constitution, which vests the House with the ``sole
Power of Impeachment'' as a check against the Presidency, it is
for the House--and not the President--to determine what
documents and testimony are needed for its exercise of the
impeachment power.
---------------------------------------------------------------------------
\849\N.L.R.B. v. Noel Canning, 573 U.S. 513, 524 (2014) (quotation
marks and citation omitted).
---------------------------------------------------------------------------
C. OBSTRUCTION OF CONGRESS IS AN IMPEACHABLE OFFENSE
Impeachment is a cornerstone of the Constitution. When the
House wields the impeachment power, it serves as a grand
inquest of the Nation on behalf of the American people, charged
with protecting our democracy. Because the premise of the
Impeachment Clause is that the House must be able to act when
the President has abused his power, betrayed the national
interest, or corrupted elections, a President who obstructs
House investigators has attacked the Constitution itself. Even
when the President strenuously disagrees with the impeachment
inquiry--and even when he doubts its motives--he must obey the
law and allow others to meet their legal obligations. The
absurdity of allowing Presidents to dictate the terms of
impeachment inquiries is obvious. The danger of allowing
Presidents to do so is manifest. For that reason, Presidential
obstruction of an impeachment inquiry is itself an impeachable
abuse of power under the Constitution.\850\
---------------------------------------------------------------------------
\850\See, e.g., Frank O. Bowman III, High Crimes & Misdemeanors: A
History of Impeachment for the Age of Trump 199 (2019) (``The subpoena
power in impeachment cases arises directly from an explicit
constitutional directive that the House conduct an adjudicative
proceeding akin to a grand jury, the success of which is necessarily
dependent on the availability of relevant evidence. Without the power
to compel compliance with subpoenas and the concomitant right to
impeach a president for refusal to comply, the impeachment power would
be nullified.'').
---------------------------------------------------------------------------
To be sure, Presidents may still raise privacy, national
security, and other concerns in the course of an impeachment
inquiry, to the extent they apply. There is room for inter-
branch negotiation and accommodation--though there is an
overwhelming presumption in favor of full disclosure and
compliance with House subpoenas. But when a President abuses
his office to defy House investigators on matters that they
deem pertinent to their inquiry, and does so without lawful
cause or excuse, his conduct may constitute an unconstitutional
effort to seize and break the impeachment power vested solely
in the House. In that respect, obstruction of Congress involves
``the exercise of official power in a way that, on its very
face, grossly exceeds the President's constitutional authority
or violates legal limits on that authority.''\851\
---------------------------------------------------------------------------
\851\Constitutional Grounds for Impeachment (2019) at 18; see also
id. (explaining that impeachable abuse of power was understood by the
Framers as encompassing, inter alia, ``conduct that is inherently and
sharply inconsistent with the law--and that amounts to claims of
monarchical prerogative'').
---------------------------------------------------------------------------
This is illustrated by President's Nixon case. As explained
above, President Nixon allowed senior administration officials
to testify and produced many documents. He did not direct
anything approximating a categorical and indiscriminate
blockade of the House's impeachment inquiry. But in response to
the Judiciary Committee's eight subpoenas for recordings and
materials related to 147 conversations, he produced only
limited documents and edited transcripts of roughly 30
conversations; many of those transcripts were inaccurate or
incomplete.\852\ President Nixon claimed that his non-
compliance was legally defensible, invoking the doctrine of
executive privilege.\853\
---------------------------------------------------------------------------
\852\Committee Report on Nixon Articles of Impeachment (1974), at
203.
\853\Id. at 207-208.
---------------------------------------------------------------------------
The Judiciary Committee rejected these arguments and deemed
President Nixon's conduct to be impeachable. It observed that
his ``statements that the institution of the Presidency is
threatened when he is required to comply with a subpoena in an
impeachment inquiry exaggerate both the likelihood of such an
inquiry and the threat to confidentiality from it.''\854\ The
Committee also emphasized that ``the doctrine of separation of
powers cannot justify the withholding of information from an
impeachment inquiry.''\855\ After all, ``[t]he very purpose of
such an inquiry is to permit the House, acting on behalf of the
people, to curb the excesses of another branch, in this
instance the Executive.''\856\ Therefore, ``[w]hatever the
limits of legislative power in other contexts--and whatever
need may otherwise exist for preserving the confidentiality of
Presidential conversations--in the context of an impeachment
proceeding the balance was struck in favor of the power of
inquiry when the impeachment provision was written into the
Constitution.''\857\
---------------------------------------------------------------------------
\854\Id. at 210.
\855\Id. at 208.
\856\Id.
\857\Id. at 209.
---------------------------------------------------------------------------
Because ``the refusal of [President Nixon] to comply with
the subpoenas was an interference by him with the efforts of
the Committee and the House of Representatives to fulfill their
constitutional responsibilities,'' the Judiciary Committee
deemed it impeachable.\858\ The Committee reached that
determination even though it had ``been able to conduct an
investigation and determine that grounds for impeachment
exist,'' despite ``the President's refusal to comply.''\859\ On
that point, the Committee observed that President Nixon's
obstruction ``was not without practical import,'' since ``[h]ad
it received the evidence sought by the subpoenas, the Committee
might have recommended articles structured differently or
possible ones covering other matters.''\860\
---------------------------------------------------------------------------
\858\Id. at 188.
\859\Id. at 189.
\860\Id.
---------------------------------------------------------------------------
President Nixon's obstruction of the House impeachment
inquiry featured in two of the three articles approved by the
Judiciary Committee. Article II charged President Nixon with
abuse of power, including ``failing to act when he knew or had
reason to know that his close subordinates endeavored to impede
and frustrate lawful inquiries by duly constituted executive,
judicial and legislative entities concerning the unlawful entry
into the headquarters of the Democratic National Committee, and
the cover-up thereof, and concerning other unlawful activities
. . . .''\861\
---------------------------------------------------------------------------
\861\Id. at 3-4 (emphasis added).
---------------------------------------------------------------------------
More directly, Article III charged President Nixon with
abusing his power by interfering with the discharge of the
Judiciary Committee's responsibility to investigate fully and
completely whether sufficient grounds existed to impeach him:
In refusing to produce these papers and things,
Richard M. Nixon, substituting his judgment as to what
materials were necessary for the inquiry, interposed
the powers of the Presidency against the lawful
subpoenas of the House of Representatives, thereby
assuming to himself functions and judgments necessary
to the exercise of the sole power of impeachment vested
by the Constitution in the House of Representatives.
In all of this, Richard M. Nixon has acted in a
manner contrary to his trust as President and
subversive of constitutional government, to the great
prejudice of the cause of law and justice, and to the
manifest injury of the people of the United States . .
. .\862\
---------------------------------------------------------------------------
\862\Id. at 4.
President Nixon's case is thus persuasive authority that
Presidential defiance of a House impeachment inquiry may
constitute ``high Crimes and Misdemeanors.''
This Committee took the same view in President Clinton's
case. The fourth article of impeachment against President
Clinton charged that he had ``impaired the due and proper
administration of justice and the conduct of lawful inquiries,
and contravened the authority of the legislative branch and the
truth seeking purpose of a coordinate investigative
proceeding.''\863\ Specifically, it accused him of failing to
respond to certain written requests and making false and
misleading statements to Congress. To justify impeaching
President Clinton on that basis, the Committee reasoned as
follows:
---------------------------------------------------------------------------
\863\Committee Report on Clinton Articles of Impeachment (1998) at
4.
In responding in such a manner, the President
exhibited contempt for the constitutional prerogative
of Congress to conduct an impeachment inquiry. The
impeachment duty is a solemn one vested exclusively in
the House of Representatives as a check and balance on
the President and the Judiciary. The Committee reached
the unfortunate conclusion that the President, by
giving perjurious, false, and misleading answers under
oath to the Committee's requests for admission, chose
to take steps to thwart this serious constitutional
process.\864\
---------------------------------------------------------------------------
\864\Id. at 77.
Ultimately, the House declined to approve this article.
That decision, however, did not constitute a determination that
obstruction of a House impeachment inquiry cannot be
impeachable. Instead, it appears to reflect a judgment by the
full House that President Clinton's conduct was not
substantial, malicious, or obstructive enough to warrant an
article of impeachment.
Applying these principles, a President commits ``high
Crimes and Misdemeanors''' when he abuses his office to
substantially obstruct House impeachment investigators on
matters that it deems pertinent to its inquiry, and does so
without lawful cause or excuse.
D. PRESIDENT TRUMP HAS COMMITTED ``[H]IGH CRIMES AND MISDEMEANORS''
1. President Trump Substantially Obstructed the Impeachment Inquiry
The evidentiary record bearing on President Trump's
obstruction of the House impeachment inquiry is set forth in
the Ukraine Report and incorporated by reference here.\865\ On
the basis of that record, it is indisputable that President
Trump substantially obstructed the House impeachment inquiry.
The essential facts bearing on that judgment include the
following:
---------------------------------------------------------------------------
\865\Ukraine Report at 201-260 & nn.1-441.
---------------------------------------------------------------------------
From September through November 2019, the
Investigating Committees served subpoenas on numerous Executive
Branch agencies, offices, and officials. These subpoenas sought
evidence and testimony regarding President Trump's efforts to
solicit and pressure the Government of Ukraine to announce
investigations into former Vice President Joseph R. Biden and a
discredited conspiracy theory alleging Ukrainian interference
in the 2016 United States Presidential election.\866\
---------------------------------------------------------------------------
\866\Id. at 216-42.
---------------------------------------------------------------------------
At the time the Investigating Committees served
these subpoenas, and continually since then, they were acting
pursuant to a House impeachment inquiry under Article I of the
Constitution.\867\
---------------------------------------------------------------------------
\867\See supra The Impeachment Inquiry.
---------------------------------------------------------------------------
Even before the House launched its Ukraine
inquiry, President Trump rejected the authority of Congress to
investigate his actions, stating, ``We're fighting all the
subpoenas,''\868\ and ``I have an Article [II], where I have
the right to do whatever I want as President.''\869\
---------------------------------------------------------------------------
\868\Jeremy Diamond & Allie Malloy, Trump at war with Democrats:
`We're fighting all the subpoenas', CNN, Apr. 24, 2019.
\869\Remarks by President Trump at Turning Point USA's Teen Student
Action Summit 2019, The White House, July 23, 2019.
---------------------------------------------------------------------------
Writing ``on behalf of President Donald J.
Trump,'' White House Counsel Pat A. Cipollone sent a letter to
senior House officials on October 8, 2019, confirming that
President Trump had directed his entire Administration to defy
the impeachment inquiry. Mr. Cipollone wrote: ``President Trump
cannot permit his Administration to participate in this
partisan inquiry under these circumstances.''\870\
---------------------------------------------------------------------------
\870\Oct. 8 Cipollone Letter at 1, 4.
---------------------------------------------------------------------------
Two days later, President Trump agreed that Mr.
Cipollone was conveying the President's direction in the
October 8 letter. President Trump stated: ``As our brilliant
White House Counsel wrote to the Democrats yesterday, he said
their highly partisan and unconstitutional effort threatens
grave and lasting damage to our democratic institutions, to our
system of free elections, and to the American people. That's
what it is. To the American people. It's so terrible. Democrats
are on a crusade to destroy our democracy. That's what's
happening. We will never let it happen. We will defeat
them.''\871\
---------------------------------------------------------------------------
\871\Speech: Donald Trump Holds a Political Rally in Minneapolis,
Minnesota, Factbase Videos, Oct. 10, 2019.
Consistent with these statements, President Trump never negotiated
in good faith with the Investigating Committees. He simply made one
demand after another--each of them unjustified as a matter of law--and
asserted that he would completely blockade the Investigating Committees
if they did not concede. By no definition of the term is that a good
faith negotiation. As Chief Judge Beryl Howell has observed in a
related context, ``The reality is that DOJ and the White House have
been openly stonewalling the House's efforts to get information by
subpoena and by agreement, and the White House has flatly stated that
the Administration will not cooperate with congressional requests for
information.'' In re Application of Comm. on Judiciary, U.S. House of
Representatives, for an Order Authorizing Release of Certain Grand Jury
Materials, 2019 WL 5485221, at *36 (citing the Oct. 8 Cipollone
Letter).
---------------------------------------------------------------------------
President Trump's direction was categorical and
indiscriminate: he directed all agencies, offices, and
officials not to cooperate with the impeachment inquiry. In
other words, President Trump directed officials throughout the
Executive Branch to violate their own independent legal
obligations.
President Trump's direction was unprecedented: no
President has ever issued such direction--or anything even
approximating it--in response to an impeachment inquiry.
President Trump's direction had the natural and
foreseeable consequence of obstructing--and did, in fact,
obstruct--the House impeachment inquiry:
Defying a subpoena, the White House refused to
produce any information or records to the Investigating
Committees as part of this inquiry.\872\
---------------------------------------------------------------------------
\872\See Ukraine Report at 217. The White House has not produced a
single document in response to the subpoena. Instead, it has released
to the public only two documents: call records from the President's
phone calls with President Zelensky on April 21 and July 25, 2019. The
public release of a mere two documents comes nowhere close to
satisfying President Trump's obligations, or to mitigating the sheer
scope and scale of his Administration-wide obstruction of Congress.
---------------------------------------------------------------------------
Defying subpoenas, the Department of State, the
Office of Management and Budget, the Department of
Energy, and the Department of Defense refused to
produce a single record to the Investigating Committees
as part of this inquiry.\873\
---------------------------------------------------------------------------
\873\See Ukraine Report at 219-227.
---------------------------------------------------------------------------
Defying subpoenas, nine Administration
officials refused to testify before the Investigating
Committees, namely Mick Mulvaney (Acting White House
Chief of Staff), Robert B. Blair (Assistant to the
President and Senior Advisor to the Chief of Staff),
John A. Eisenberg (Deputy Counsel to the President for
National Security Affairs and Legal Advisor, National
Security Council), Michael Ellis (Senior Associate
Counsel to the President and Deputy Legal Advisor,
National Security Council), Preston Wells Griffith
(Senior Director for International Energy and
Environment, National Security Council), Russell T.
Vought (Acting Director, Office of Management and
Budget), Michael Duffey (Associate Director for
National Security Programs, Office of Management and
Budget), Brian McCormack (Associate Director for
Natural Resources, Energy, and Science, Office of
Management and Budget, and former Chief of Staff to
Secretary of Energy Rick Perry), and T. Ulrich
Brechbuhl (Counselor, Department of State).\874\
---------------------------------------------------------------------------
\874\See Ukraine Report at 231-244. ``In addition to the
President's broad orders seeking to prohibit all Executive Branch
employees from testifying, many of these witnesses were personally
directed by senior political appointees not to cooperate with the
House's impeachment inquiry. These directives frequently cited or
enclosed copies of Mr. Cipollone's October 8 letter conveying the
President's order not to comply.'' Id. at 31, 243.
---------------------------------------------------------------------------
The Investigating Committees concluded--with ample
reason--that this defiance of their subpoenas resulted in the
denial of evidence relevant to the inquiry. Numerous witnesses
identified specific relevant documents that have been withheld,
and there is substantial evidence that officials who followed
President Trump's direction not to appear could have offered
testimony bearing on President Trump's course of conduct
regarding Ukraine.\875\
---------------------------------------------------------------------------
\875\See Ukraine Report at 216-227, 229.
---------------------------------------------------------------------------
President Trump lacked lawful cause or excuse for
issuing his direction that all Executive Branch officials defy
their legal obligations in response to Congressional
subpoenas.\876\
---------------------------------------------------------------------------
\876\See Ukraine Report at 211-215.
---------------------------------------------------------------------------
Despite President Trump's direction that the Executive
Branch blockade the impeachment inquiry, the Investigating
Committees found clear and overwhelming evidence of his
misconduct. This includes powerful direct evidence,
strengthened and supported by compelling circumstantial
evidence, of President Trump's course of conduct and corrupt
motivations in soliciting and pressuring the Government of
Ukraine to interfere in the 2020 Presidential election. Some of
the evidence before the Committee consists of testimony from
officials who properly complied with their Congressional
subpoenas, notwithstanding the President's contrary
direction.\877\ In response to such testimony, President Trump
used the world's most powerful bully pulpit to attack,
threaten, and intimidate numerous witnesses and potential
witnesses.\878\
---------------------------------------------------------------------------
\877\See Watkins, 354 U.S. at 187-88 (``It is unquestionably the
duty of all citizens to cooperate with the Congress in its efforts to
obtain the facts needed for intelligent legislative action. It is their
unremitting obligation to respond to subpoenas, to respect the dignity
of the Congress and its committees and to testify fully with respect to
matters within the province of proper investigation.'').
\878\See Ukraine Report at 255-60. The Minority's dissenting views
on the nature of impeachable offenses consist almost exclusively of
testimony by Professor Turley, who contends that the President did not
obstruct the inquiry because ``many officials opted to testify, despite
the orders from the President that they should decline.'' Minority
Views, Constitutional Grounds for Impeachment (2019), attaching Written
Statement of Jonathan Turley, Dec. 4, 2019, at 42. This is a curious
argument. When the House issues subpoenas in an impeachment inquiry and
the President orders total defiance, it is hardly a point in the
President's favor that a handful of his subordinates disobey that
unlawful order (even as most officials comply, and even as all agencies
and offices comply). Professor Turley further notes that the officials
who violated President Trump's directive ``remain in federal service in
good standing.'' Id. But the fact that President Trump has not (yet)
fired or disciplined the witnesses who came forward in no respect
ameliorates his unlawful order. His attempts at thwarting their
testimony is itself grounds for impeachment and, significantly, he
succeeded in substantially obstructing the House impeachment inquiry as
to the strong majority of documents and testimony sought.
---------------------------------------------------------------------------
Ultimately, as in President Nixon's case, House Committees
have ``been able to conduct an investigation and determine that
grounds for impeachment exist--even in the face of the
President's refusal to comply.''\879\ But here, as there, the
President's obstruction of the House impeachment inquiry was
not ``without practical import.''\880\ It may have prevented
the House from learning the full extent of the President's
misdeeds.
---------------------------------------------------------------------------
\879\Committee Report on Nixon Articles of Impeachment (1974 at
189.
\880\Id.
---------------------------------------------------------------------------
The President thus inflicted concrete harm on the House,
which is duty-bound to inquire when it has cause to believe the
President may have committed ``high Crimes and Misdemeanors.''
The House made that judgment here when evidence emerged that
President Trump had solicited and pressured a foreign power to
interfere in our elections for his own personal political
benefit. To discharge its constitutional obligations, the
House--acting through its Committees--pursued an impeachment
inquiry and subpoenaed relevant Executive Branch agencies,
offices, and officials. In seeking to thwart the House in the
faithful performance of that constitutional function, President
Trump committed a gross abuse of power. Most immediately, this
abuse involved ordering the defiance of Congressional
subpoenas. That stands as ``an affront to the mechanism for
curbing abuses of power that the Framers carefully crafted for
our protection.''\881\
---------------------------------------------------------------------------
\881\McGahn, 2019 WL 6312011, at *28 (D.D.C. Nov. 25, 2019), appeal
docketed, No. 19-5331 (D.C. Cir. Nov. 26, 2019).
---------------------------------------------------------------------------
More fundamentally, President Trump's direction to defy
House subpoenas constituted an assault on the Impeachment
Clause itself--and thus on our Constitution's final answer to
corrupt Presidents. As explained above, the ``sole Power of
Impeachment'' authorizes the House to review information that
resides within the very branch of government it is empowered to
scrutinize. By engaging in substantial obstruction of a House
impeachment inquiry, the President could effectively seek to
control a check on his own abuses. That is exactly what
happened here.
In President Nixon's case, this Committee concluded that
``[u]nless the defiance of the [House] subpoenas . . . is
considered grounds for impeachment, it is difficult to conceive
of any President acknowledging that he is obligated to supply
the relevant evidence necessary for Congress to exercise its
constitutional responsibility in an impeachment
proceeding.''\882\ The same lesson applies now, but with
exponentially greater force. President Nixon authorized other
officials and agencies to honor their legal obligations.\883\
He also turned over many of his own documents, failing only to
respond fully to eight subpoenas.\884\ President Trump, in
contrast, directed his entire Administration--every agency,
office, and official in the Executive Branch--not to cooperate
with the impeachment inquiry, including by disobeying duly
authorized subpoenas. If this does not qualify as impeachable
obstruction of Congress, then nothing does, and the House will
have sent a dangerous invitation to future Presidents to defy
impeachment inquiries.
---------------------------------------------------------------------------
\882\Nixon Impeachment Report (1974), at 213.
\883\The President's Remarks Announcing Developments and Procedures
to be Followed in Connection with the Investigation, The White House,
Apr. 17, 1973 (``All members of the White House Staff will appear
voluntarily when requested by the committee. They will testify under
oath, and they will answer fully all proper questions.'').
\884\Committee Report on Nixon Articles of Impeachment (1974) at
478-82.
---------------------------------------------------------------------------
2. President Trump's Obstruction of Congress Lacked Lawful Cause or
Excuse and Involved Recognizably Wrongful Conduct
President Trump and his lawyers have offered various
arguments to justify the President's complete defiance of the
House impeachment inquiry. Those arguments are indefensible as
a matter of law and come nowhere close to excusing the
President's unprecedented obstruction of Congress. They amount
to a claim that the President has the power to dictate the
terms on which he is investigated for ``high Crimes and
Misdemeanors''--a claim that is fundamentally at odds with the
Constitution.
The President's excuses consist mainly of complaints about
the procedures adopted by the House and its Committees. For
example, the President asserts that the full House needed to
vote to authorize the impeachment inquiry at an earlier date;
that the Investigating Committees were required to afford him a
broad array of rights to intervene and participate in their
proceedings as they engaged in fact finding; that the
Investigating Committees were forbidden to conduct portions of
their fact-finding investigations behind closed doors; that the
Investigating Committees were required to allow agency
attorneys to attend depositions; that the Minority was entitled
to certain subpoena powers; and that the House engaged in
``threats and intimidation'' by informing Executive Branch
subpoena recipients of the legal consequences of their failure
to comply with duly authorized Congressional subpoenas.\885\
---------------------------------------------------------------------------
\885\See Oct. 8 Cipollone Letter. President Trump also raised
arguments relating to ``confidentiality interests'' and the so-called
doctrine of ``absolute immunity.'' Id.; see also, e.g., McGahn, 2019 WL
6312011, at *34-45. As to the first argument, ``[t]here is no basis in
the law of executive privilege for declaring a categorical refusal to
respond to any House subpoena. In an impeachment inquiry the House's
need for information and its Constitutional authority are at their
greatest, and the Executive's interest in confidentiality must yield.''
Ukraine Report, at 214. Moreover, although executive privilege could
not excuse or justify the President's categorical and indiscriminate
defiance, it bears notice that the President has not actually asserted
executive privilege in the House's impeachment inquiry. Turning to the
second argument, the House has never recognized the fictional theory of
``absolute immunity'' as a valid ground for defying an impeachment
inquiry, and every federal court to consider the doctrine of ``absolute
immunity'' has rejected it. See McGahn, 2019 WL 6312011, at *45; Comm.
on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d
135-36 (D.D.C. 2008). It is inconceivable that this doctrine has
lurked, in hiding, for centuries as a hidden excuse for Presidents to
block untold numbers of current and former Executive Branch officials
from giving any testimony whatsoever to the House. In any event,
President Trump's direction that the Executive Branch undertake a total
blockade of the House impeachment inquiry extends well beyond even the
most extreme view of ``absolute immunity,'' and so this doctrine
neither excuses nor explains the President's position as articulated in
Mr. Cipollone's letter.
---------------------------------------------------------------------------
The President has asserted many procedural arguments, but
they all fail for similar reasons. First, the House--not the
President--has the ``sole Power of Impeachment''\886\ and the
sole power ``to determine the Rules of its Proceedings.''\887\
President Trump's process complaints thus concern matters
entrusted to the exclusive discretion of the House. His
disagreement with how the House has organized its hearings and
carried out its investigations offers no excuse for breaking
the law and directing others to do so. Second, as already
described, impeachment proceedings are not criminal in
character and involve only the charging-style decision on
whether to accuse the President of ``high Crimes and
Misdemeanors.''\888\ Thus, although President Trump has
described his demands as seeking ``due process,'' none of these
procedures are ``due'' to him under the Constitution here.
Third, President Trump's demands have no basis in history or
prior practice, which cut against him.\889\ Finally, in passing
H. Res. 660, the House implemented procedural protections for
the President that exceed (or are consistent with) those
afforded to Presidents Nixon and Clinton.\890\ The fact that
President Trump declined to take advantage of these protections
does not excuse his across-the-board stonewalling of the
House.\891\
---------------------------------------------------------------------------
\886\U.S. Const. art. I, Sec. 2.
\887\Id. at Sec. 5.
\888\See supra The Impeachment Inquiry.
\889\See supra The Impeachment Inquiry.
\890\See supra The Impeachment Inquiry.
\891\President Trump's process objections are addressed
individually, and at much greater length, in the Ukraine Report. We
incorporate its reasoning and conclusions by reference. The October 8
letter from Mr. Cipollone raises two additional arguments, both of
which fail for the reasons set forth above. First, the President cannot
defy an impeachment inquiry just because he concludes that the minority
has not been afforded sufficient subpoena rights in House committees;
the House has both the ``sole Power of Impeachment'' and the sole power
to ``determine the Rules of its Proceedings.'' Nor can the President
ignore Congressional subpoenas, or direct others to do so, by
complaining that the House has informed subpoena recipients that it
will treat non-compliance as evidence of obstruction. The House does
not somehow forfeit its ``sole Power of Impeachment'' by pointing out
that unlawful defiance of its duly-authorized Congressional subpoenas
may have legal consequences or bear on the impeachment inquiry.
---------------------------------------------------------------------------
President Trump's remaining arguments fare no better.
Through Mr. Cipollone's letter, he asserts the prerogative to
defy all House subpoenas because he has unilaterally decided
that he did not do anything wrong.\892\ He adds that the House
must be acting with ``partisan'' and ``illegitimate''
motives.\893\ Notably, the President did not simply make these
points at a press conference or on Twitter. He had the White
House Counsel include them in a letter to the House as part of
his formal legal basis for directing obstruction of the House
impeachment inquiry.\894\
---------------------------------------------------------------------------
\892\See Oct. 8 Cipollone Letter at 6 (``It is transparent that you
have resorted to such unprecedented and unconstitutional procedures
because you know that a fair process would expose the lack of any basis
for your inquiry. Your current effort is founded on a completely
appropriate call on July 25, 2019, between President Trump and
President Zelenskyy of Ukraine [. . .] That record clearly established
that the call was completely appropriate, that the President did
nothing wrong, and that there is no basis for an impeachment
inquiry.'').
\893\Oct. 8 Cipollone Letter at 7, 8.
\894\ See id. at 5 (``In fact, your transparent rush to judgment,
lack of democratically accountable authorization, and violation of
basic rights in the current proceedings make clear the illegitimate,
partisan purpose of this purported `impeachment inquiry.'''); see also
To End A Presidency at 64-66.
---------------------------------------------------------------------------
To state the obvious, a President cannot obstruct a House
impeachment inquiry because he believes his conduct was proper
and sees no need for his acts to be investigated. Nor can he do
so by impugning the House's motives or attacking its
legitimacy. Once again, the Constitution vests the House with
the ``sole Power of Impeachment.'' These are judgments for the
House alone to make, guided always by the Constitution.
Otherwise, in contravention of the entire Anglo-American legal
tradition, Presidents would truly be the judge of their own
case.\895\ That is why the Framers gave the impeachment power
to Congress, not the President, and it is why the House and
Senate, respectively, have ``sole Power'' to impeach and to
adjudicate articles of impeachment.\896\
---------------------------------------------------------------------------
\895\See Dr. Bonham's Case, 8 Co. Rep. 114a, 118b, 77 Eng. Rep.
638, 654 (1610) (Coke, C.J.).
\896\U.S. Const. art. I, Sec. Sec. 2, 3.
---------------------------------------------------------------------------
On this score, the Supreme Court's decision in Walter Nixon
v. United States is instructive: ``Judicial involvement in
impeachment proceedings, even if only for purposes of judicial
review, is counterintuitive because it would eviscerate the
important constitutional check placed on the Judiciary by the
Framers. [Judge] Nixon's argument would place final reviewing
authority with respect to impeachments in the hands of the same
body that the impeachment process is meant to regulate.''\897\
In practice, President Trump would do what the Supreme Court
has clearly warned against: place vital constitutional
judgments about exercises of the impeachment power ``in the
hands of the same [President] that the impeachment process is
meant to regulate.''\898\ Thus, while President Trump merely
erred in asserting that the impeachment inquiry was unfounded,
partisan, and ``illegitimate,'' he moved from error to ``high
Crimes and Misdemeanors'' in declaring that his self-determined
innocence somehow justifies his scorched-earth obstruction
campaign.
---------------------------------------------------------------------------
\897\Nixon v. United States, 506 U.S. 224, 235 (1993) (quotation
marks and citation omitted).
\898\Cf. id.
---------------------------------------------------------------------------
Throughout our history, impeachments--particularly of
Presidents--have been rare. Moreover, in Judge Walter Nixon's
case, the Supreme Court made clear its extreme wariness of
intruding on powers of impeachment entrusted solely to
Congress. As a result, impeachment proceedings against a
President will inevitably raise questions of constitutional law
that have not been definitively, specifically resolved by
judicial precedent or past practice of the House. This leaves
room for inter-branch negotiation. But it does not allow the
President to seize on specious arguments, cobble them together,
and use them in an effort to justify the unjustifiable: a
Presidential direction that all House subpoenas be entirely
defied under all circumstances. Such unyielding Presidential
obstruction of an impeachment inquiry is plainly wrong. When
the House investigates impeachable offenses, the President
cannot cover up his misconduct by holding hostage all evidence
contained within the Executive Branch. The Judiciary Committee
made this clear in President Nixon's case and reaffirms that
principle today.
Simply put, there are lines that a President cannot cross
in an impeachment inquiry. Those lines exist to ensure that the
Impeachment Clause can serve its fundamental purpose as a
safeguard for the people of the United States. In
comprehensively obstructing this House impeachment inquiry,
President Trump crossed every one of these lines. He did so
without any valid cause or excuse. He must therefore be
impeached, lest future Presidents follow his example and
persist in corruption, oppression, and abuse of power with
little risk of discovery or accountability.
3. Judicial Review is Unnecessary and Impractical Here
It has been suggested that the House cannot impeach
President Trump for obstruction of Congress without seeking
judicial enforcement of the subpoenas that he has ordered be
defied. This claim is mistaken as a matter of constitutional
law, precedent, and common sense.
As already explained, the Constitution vests the House--
rather than the President or Judiciary--with ``the sole Power
of Impeachment.'' That ``sole Power'' includes the
investigatory powers that the House has invoked in serving
subpoenas as part of the current impeachment inquiry. This
Committee therefore concluded in President Nixon's case that it
would frustrate the constitutional plan for the House to depend
entirely on the Judiciary to enforce subpoenas in impeachment
proceedings.\899\ That would risk making the House subservient
to courts in matters where the Constitution gives the House the
final word.\900\ It would also raise complexities in the case
of a President who directed Executive Branch officials to defy
House subpoenas--and then used his pardon power to immunize
them from contempt orders if instructed by the Judiciary to
honor those subpoenas.\901\
---------------------------------------------------------------------------
\899\Committee Report on Nixon Articles of Impeachment (1974) at
210-212.
\900\Id. at 210 (``The Committee concluded that it would be
inappropriate to seek the aid of the courts to enforce its subpoenas
against the President. This conclusion is based on the constitutional
provision vesting the power of impeachment solely in the House of
Representatives and the express denial by the Framers of the
Constitution of any role for the courts in the impeachment process.'').
\901\See id. at 212.
---------------------------------------------------------------------------
To be sure, judicial review may at first blush seem
desirable because ``it would be an independent determination by
an entity with no interest in the proceedings.''\902\ But as
this Committee has noted: ``[T]he impeachment process itself
provides an opportunity for such a determination--initially by
the House in deciding whether to prosecute the Article of
Impeachment, and, ultimately, by the Senate, the tribunal for
an impeachment trial. Neither the Committee nor the House would
be the final judge of the validity of the Committee's
subpoenas. Whether noncompliance with the subpoenas is a ground
for impeachment would ultimately be adjudicated in the
Senate.''\903\
---------------------------------------------------------------------------
\902\Id. at 212.
\903\Id.
---------------------------------------------------------------------------
Consistent with this understanding of the constitutional
plan, the House has never before relied on litigation to compel
witness testimony or the production of documents in a
Presidential impeachment proceeding.\904\ Some members of the
Minority have suggested otherwise, but there is no law or
practice to support such a theory.\905\ As explained above, the
history of House impeachment inquiries teaches a single lesson:
compliance with subpoenas is the rule, defiance the exceedingly
rare (and impeachable) exception. No President has ever issued
a blanket ban on compliance with House subpoenas and challenged
the House to find a way around his unlawful order. Under these
strange and unprecedented circumstances, it is appropriate for
the House to reach its own independent judgment that the
President is obstructing the exercise of its constitutional
impeachment power, rather than seeking judicial review.
---------------------------------------------------------------------------
\904\In President Nixon's case, the Special Prosecutor subpoenaed
certain Oval Office tape recordings and then litigated the President's
failure to comply with the subpoena. See United States v. Nixon, 418
U.S. 683, 686 (1974). The Judiciary Committee did not file suit when
the President failed to comply fully with its own subpoenas.
\905\H. Res. 755, Articles of Impeachment Against President Donald
J. Trump: Markup Before the H. Comm. on the Judiciary, 116th Cong.
(2019) (Statement of Rep. James Sensenbrenner).
---------------------------------------------------------------------------
Indeed, whereas the Minority suggests that recourse to
litigation is required, President Trump has repeatedly argued
that the House is forbidden to seek judicial enforcement of its
subpoenas. In pending lawsuits filed by the House or its
Committees, the Justice Department has raised jurisdictional
arguments on behalf of President Trump that, if accepted, would
hamper or negate the House's ability to enforce subpoenas in
court.\906\ Those arguments are mistaken and have already been
rejected several times,\907\ but reflect the President's
sustained and unwavering view that it is legally impermissible
for the House to obtain judicial relief. Where the President
orders total defiance of House subpoenas and vigorously argues
that the courthouse door is locked, it is clear that he seeks
to obstruct the House in the exercise of its impeachment power.
---------------------------------------------------------------------------
\906\Brief for Defendant-Appellant at 1 47, Comm. on the Judiciary,
U.S. House of Representatives v. Donald F. McGahn II, No. 19-5331 (D.C.
Cir. filed Dec. 9, 2019) (arguing courts lack jurisdiction to
adjudicate subpoena enforcement suits by the House and that the House
is not even injured for purposes of Article III standing when Executive
Branch officials defy subpoenas); Memorandum of Points and Authorities
in Support of Defendants' and Defendants-Intervenors' Motion to
Dismiss, Comm. on Ways and Means, U.S. House of Representatives v.
Dep't of Treasury, No. 19 Civ. 1974 (D.D.C. filed Sept. 6, 2019).
\907\See, e.g., United States v. Am. Tel. & Tel. Co., 551 F.2d 384,
391 (D.C. Cir. 1976) (``the House as a whole has standing to assert its
investigatory power''); McGahn, 2019 WL 6312011 at *16-34 (D.D.C. Nov.
25, 2019) (rejecting DOJ's jurisdictional arguments); Comm. on
Oversight & Gov't Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013)
(same); Miers, 558 F. Supp. 2d at 65-99 (same).
---------------------------------------------------------------------------
This conclusion comports with common sense. The President
is under investigation for soliciting and pressuring a foreign
power to interfere in an election that is less than a year
away. The House has already received compelling evidence of his
misconduct. Waiting any longer would thus be an abdication of
duty--particularly given the extreme implausibility that
litigation would soon bring new evidence to light. Consider
three lawsuits filed by House Committees over the past two
decades seeking to enforce subpoenas against senior Executive
Branch officials:
In Committee on the Judiciary v. Miers, this
Committee sought to enforce a subpoena requiring former White
House Counsel Harriet Miers to give testimony about the
contentious firing of nine United States Attorneys. The
Committee served that subpoena in June 2007, filed suit in
March 2008, and won a favorable district court order in July
2008, but did not receive testimony from Miers until June 2009
due to the entry of a stay by the Court of Appeals and further
negotiations between the parties.\908\
---------------------------------------------------------------------------
\908\See Miers, 558 F. Supp. 2d 53 (D.D.C. July 31, 2008) (holding
Miers was required to testify); 542 F.3d 909 (D.C. Cir. Oct. 6, 2008)
(staying decision pending appeal); Unopposed Motion for Voluntary
Dismissal by Plaintiff at 3, Miers (D.D.C. filed Oct. 22, 2009) (Miers
testified in a transcribed interview in June 2009).
---------------------------------------------------------------------------
In Committee on Oversight and Reform v. Holder,
the Committee on Oversight and Reform (COR) sought to compel
Attorney General Eric Holder to produce documents relating to
Operation Fast and Furious. The committee served that subpoena
in October 2011 and filed suit in August 2012. It then won a
series of orders requiring the production of documents, but the
first such order did not issue until August 2014.\909\
---------------------------------------------------------------------------
\909\The district court rejected DOJ's motion to dismiss in
September 2013, see Holder, 979 F. Supp. 2d 1; ordered production only
of documents for which DOJ did not assert any privileges in August
2014, see 2014 WL 12662665 (D.D.C. Aug. 20, 2014); and did not order
production of additional documents until January 2016, see 156 F. Supp.
3d 101 (D.D.C. Jan. 19, 2016).
---------------------------------------------------------------------------
In Committee on the Judiciary v. McGahn, this
Committee seeks to enforce a subpoena requiring White House
Counsel Donald F. McGahn II to give testimony regarding matters
relating to the Special Counsel's investigation. The Committee
served that subpoena in April 2019, filed suit in August 2019,
and won a favorable district court order in November 2019, but
the Court of Appeals has stayed that ruling and will not hear
oral argument until January 2020.\910\
---------------------------------------------------------------------------
\910\McGahn, 2019 WL 6312011; see id. at *4-6 (describing case
history); see Order, No. 19-5331 (D.C. Cir. Nov. 27, 2019) (entering
``administrative stay'' and scheduling argument in January).
---------------------------------------------------------------------------
Even when the House urges expedition, it usually takes
years--not months--to obtain documents or testimony through
judicial subpoena enforcement proceedings. It would be unwise,
indeed dangerous, to allow Presidents to defy all subpoenas in
an impeachment inquiry and then assert that the House cannot
impeach without exhausting judicial remedies. Particularly in a
case like this one, where the President's misconduct is a
constitutional crime in progress, waiting for the courts is the
practical equivalent of inaction. This Committee will not stand
idly by while the President abuses power by asking and
pressuring foreign powers to corrupt the upcoming election.
4. President Trump Poses a Continuing Threat if Left in Office
Impeachment exists ``not to inflict personal punishment for
past wrongdoing, but rather to protect against future
Presidential misconduct that would endanger democracy and the
rule of law.''\911\ By virtue of the conduct encompassed by
Article II, President Trump ``has demonstrated that he will
remain a threat to the Constitution if allowed to remain in
office, and has acted in a manner grossly incompatible with
self-governance and the rule of law.''\912\ That is true in at
least three respects: first, he has debased the impeachment
remedy; second, he has broadly argued that no government entity
in the United States has the legal power to investigate his
official misconduct except on terms of his choosing; and third,
his obstruction reflects a pattern of misconduct.
---------------------------------------------------------------------------
\911\Constitutional Grounds for Impeachment (2019) at 10.
\912\H. Res. 755, 116th Cong. Art. II. (2019).
---------------------------------------------------------------------------
a. Debasement of the Impeachment Remedy
The impeachment power exists for a reason. It is the
Framers' final and most definitive answer to a fundamental
question: ``Shall any man be above Justice?''\913\ Urging the
necessity of allowing impeachments, Elbridge T. Gerry thus
emphasized: ``A good magistrate will not fear them. A bad one
ought to be kept in fear of them.''\914\ In Federalist Papers
No. 69, Alexander Hamilton affirmed that the Impeachment Clause
separates Presidents from kings and khans.\915\ Where a
President abuses his power, betrays the public through foreign
entanglements, or corrupts his office or elections, impeachment
is our Nation's last line of defense against conduct ``fatal to
the Republic.''\916\ It was partly by virtue of this limit on
malfeasance that the Framers entrusted Presidents with sweeping
executive authority. A President who seeks to sabotage the
impeachment power thus disorders our system of checks and
balances, tilting it toward executive tyranny.
---------------------------------------------------------------------------
\913\2 Farrand, Records of the Federal Convention at 65 (George
Mason).
\914\Id. at 66 (Elbridge Gerry).
\915\The Federalist No. 69 at 444-45 (Alexander Hamilton) (Benjamin
Fletcher Wright ed. 1961).
\916\2 Farrand, Records of the Federal Convention at 66 (James
Madison).
---------------------------------------------------------------------------
That is what President Trump did here. The point bears
repetition: his conduct is unlike anything this Nation has ever
seen. Other Presidents have disapproved of impeachments. Other
Presidents have criticized the House and doubted its motives.
Other Presidents have insisted they did nothing wrong. But no
President before this one has declared himself and his entire
branch of government exempt from subpoenas issued by the House
under its ``sole Power of Impeachment.'' No President has made
compliance with his every demand a condition of even
considering whether to honor subpoenas. No President has
directed his senior officials to violate their own legal
obligations because an impeachment was ``illegitimate.''
Indeed, every President in our Nation's history but one has
done the opposite--and that President, Richard M. Nixon, faced
an article of impeachment in this Committee for withholding key
evidence from the House.
b. Denial of Any Mechanism of Legal Oversight or Accountability
Approval of the Second Article of Impeachment is further
supported by President Trump's apparent view that nobody in the
United States government has the lawful authority to
investigate any misconduct in which he engages. This view is
evident in the legal positions he has taken while in office. To
start, President Trump maintains that he is completely immune
from criminal indictment and prosecution while serving as
President.\917\ He also claims that he cannot be investigated--
under any circumstance--by state or federal law enforcement
while in office.\918\ He asserts the authority to terminate and
control federal law enforcement investigations for any reason
(or none at all), including when he is the subject of an
investigation.\919\ He insists that unfounded doctrines, such
as absolute immunity, preclude testimony by many current and
former officials who might shed light on any Presidential
abuses.\920\ He defies binding Congressional subpoenas on
topics of national importance based on his own determination
that they lack a legitimate purpose,\921\ and then he sues to
block third parties from complying with such subpoenas.\922\
Even as he pursues his own interests in court, his
administration simultaneously argues that Congress is barred
from obtaining judicial enforcement when Executive Branch
officials disregard its subpoenas.\923\
---------------------------------------------------------------------------
\917\Memorandum of Law in Support of Plaintiff's Emergency Motion
For a Temporary Restraining Order and a Preliminary Injunction, Trump
v. Vance, Jr. No. 19 Civ. 08694, 2019 WL 5557333 (S.D.N.Y Sept. 20,
2019) (``Under Article II, the Supremacy Clause, and the structure of
our Constitution, the President of the United States cannot be `subject
to the criminal process' while he is in office.''); Ann E. Marimow &
Jonathan O'Connell, In Court Hearing, Trump Lawyer Argues a Sitting
President Would be Immune from Prosecution Even If He Were to Shoot
Someone, Wash. Post, Oct. 23, 2019.
\918\Trump v. Vance, 941 F.3d 631, 640 (2d Cir. 2019) (``The
President relies on what he described at oral argument as `temporary
absolute presidential immunity'--he argues that he is absolutely immune
from all stages of state criminal process while in office, including
pre-indictment investigation . . . .'').
\919\Letter from John M. Dowd & Jay A. Sekulow to Robert S.
Mueller, III (Jan. 29, 2018) (``It remains our position that the
President's actions here, by virtue of his position as the chief law
enforcement officer, could neither constitutionally nor legally
constitute obstruction because that would amount to him obstructing
himself, and that he could, if he wished, terminate the inquiry, or
even exercise his power to pardon if he so desired.'').
\920\McGahn, 2019 WL 6312011 at *34 (``DOJ asserts that current and
former senior-level presidential aides have `absolute testimonial
immunity' from compelled congressional process, as a matter of law;
therefore, if the President invokes `executive privilege' over a
current or former aides' testimony--as he has done with respect to
McGahn--that aide need not accede to the lawful demands of
Congress.''). See also, e.g., Ukraine Report at 230 (President Trump
ordered Acting Chief of Staff Mick Mulvaney to defy a subpoena for his
testimony on grounds of ``absolute immunity''); id. at 231 (same, with
respect to White House advisor Robert Blair); id. at 232 (same, with
respect to Deputy Counsel to the President for National Security
Affairs John Eisenberg).
\921\See Oct. 8 Cipollone Letter at 2. See also, e.g.,
Congressional Committee's Request for the President's Tax Returns, 43
Op. O.L.C.__, 2019 WL 2563046 (supporting Department of the Treasury's
decision to override plain statutory text requiring disclosure of the
President's tax returns based on purported absence of a ``legitimate
legislative purpose'').
\922\See, e.g., Mazars, 940 F.3d at 717; Trump v. Deutsche Bank
AG,--F.3d--, 2019 WL 6482561 at *2 (2d Cir. Dec. 3, 2019).
\923\McGahn, 2019 WL 6312011, at *26 (``Here, as in Miers, DOJ
attempts to shoehorn its emasculating effort to keep House committees
from turning to the courts as a means of vindicating their
constitutional interests into various categories of established legal
arguments, some of which overlap substantially with jurisdictional
contentions that the Court has already considered and rejected.'').
Compare Memorandum of Points and Authorities in Support of Defendants'
and Defendant-Intervenors' Motion to Dismiss at 13, Comm. on Ways and
Means, U.S. House of Representatives v. Dep't of Treasury, No. 19 Civ.
01974 (D.D.C. filed Sept. 6, 2019) (warning against ``[t]he exertion of
Federal judicial power to declare victors in inter-branch disputes of
this nature''), with Brief for the United States as Amicus Curiae at 2,
Trump v. Deutsche Bank, No. 19-1540 (2d Cir. filed Aug. 19, 2019)
(encouraging the court to ``engage in a searching evaluation of
subpoenas directed at the President'').
---------------------------------------------------------------------------
Perhaps most remarkably, President Trump claims that the
House cannot investigate his misconduct outside of an
impeachment inquiry\924\--but also claims that it cannot
investigate his misconduct as part of an impeachment inquiry if
he deems it ``illegitimate.''\925\ And an inquiry ranks as
``illegitimate,'' in President Trump's view, if he thinks he
did nothing wrong, doubts the motives of the House, or prefers
a different set of Committee procedures. It is not hyperbole to
describe this reasoning as better suited to George Orwell or
Franz Kafka than the Office of the President.
---------------------------------------------------------------------------
\924\Mazars, 940 F.3d at 750 (quoting DOJ's brief, ``The House's
impeachment power is an express authority whose exercise does not
require a connection to valid legislation. But the Committee has
asserted neither jurisdiction over, nor an objective of pursuing
impeachment.'').
\925\Oct. 8 Cipollone Letter at 8 (``For the foregoing reasons, the
President cannot allow your constitutionally illegitimate proceedings
to distract him and those in the Executive Branch from their work on
behalf of the American people.'').
---------------------------------------------------------------------------
Viewed in their totality, President Trump's positions
amount to an insistence that he is above the law; that there is
no governmental entity in the United States outside his direct
control that can investigate him for official misconduct and
hold him accountable for any wrongdoing. Even the House,
wielding one of the mightiest powers in the Constitution--a
power that exists specifically to address a rogue President--
has no authority at all to investigate his official acts if he
decides otherwise.
That is not our law. It never has been. The President is a
constitutional officer. Unlike a despot, he answers to a higher
legal authority. It is disconcerting enough that the President
has attacked and resisted the House's explicit oversight
authority in unprecedented ways. But it is worse, much worse,
that he now claims the further prerogative to ignore a House
impeachment inquiry.\926\ The continuing threat posed by
President Trump's conduct, as set forth in the Second Article
of Impeachment, is thus exacerbated by his public and legal
assertions that it is illegitimate and unlawful for anyone to
investigate him for abuse of office except on his own terms.
---------------------------------------------------------------------------
\926\The President has accompanied this conduct with a series of
public statements advocating the view that it is illegitimate for the
House to investigate him. See Ukraine Report at 28-29 (``He has
publicly and repeatedly rejected the authority of Congress to conduct
oversight of his actions and has directly challenged the authority of
the House to conduct an impeachment inquiry into his actions regarding
Ukraine . . . . [President Trump's] rhetorical attacks appeared
intended not just to dispute public reports of his misconduct, but to
persuade the American public that the House lacks authority to
investigate the President.'').
---------------------------------------------------------------------------
c. Consistency with Previous Conduct
The Second Article of Impeachment impeaches President Trump
for obstructing Congress with respect to the House impeachment
inquiry relating to Ukraine. Yet, as noted in that Article,
President Trump's obstruction of that investigation is
``consistent with [his] previous efforts to undermine United
States Government investigations into foreign interference in
United States elections.''\927\ An understanding of those
previous efforts, and the pattern of misconduct they represent,
sheds light on the particular conduct set forth in that Article
as sufficient grounds for the impeachment of President
Trump.\928\
---------------------------------------------------------------------------
\927\H. Res. 755, 116th Cong. Art. II (2019).
\928\This Committee has undertaken an investigation relating to the
Special Counsel's report. That includes inquiring into President
Trump's obstruction of the Special Counsel, as well as a review of
other aspects of the Special Counsel's underlying work that the
President obstructed. As part of this investigation, the Committee has
sought to compel testimony by former White House Counsel Donald F.
McGahn II, and to review certain grand jury materials relating to the
Special Counsel's report. Should the Committee obtain the information,
it would be utilized, among other purposes, in a Senate trial on these
articles of impeachment, if any. The Committee, moreover, has continued
and will continue those investigations consistent with its own prior
statements respecting their importance and purposes.
---------------------------------------------------------------------------
These previous efforts include, but are not limited to,
President Trump's endeavor to impede the Special Counsel's
investigation into Russian interference with the 2016 United
States Presidential election, as well as President Trump's
sustained efforts to obstruct the Special Counsel after
learning that he was under investigation for obstruction of
justice.\929\ There can be no serious doubt that the Special
Counsel's investigation addressed an issue of extraordinary
importance to our national security and democracy. As the
Special Counsel concluded, ``[t]he Russian government
interfered in the 2016 presidential election in sweeping and
systematic fashion.''\930\ This assessment accords with the
consensus view of the United States intelligence
community.\931\
---------------------------------------------------------------------------
\929\See generally Special Counsel Robert S. Mueller, III, Report
On The Investigation Into Russian Interference In The 2016 Presidential
Election, Vols. I and II (March 2019) (hereinafter, ``Mueller
Report'').
\930\Mueller Report Vol. I at 1.
\931\Ukraine Report at 13 (``[T]he U.S. Intelligence Community had
unanimously determined that Russia, not Ukraine, interfered in the 2016
election to help the candidacy of Donald Trump.'').
---------------------------------------------------------------------------
Ultimately, although the Special Counsel ``did not
establish that members of the Trump Campaign conspired or
coordinated with the Russian government in its election
interference activities,'' he did conclude that ``the Russian
government perceived it would benefit from a Trump presidency
and worked to secure that outcome, and that the Campaign
expected it would benefit electorally from information stolen
and released through Russian efforts.''\932\ Yet there is no
indication in the Special Counsel's report that anyone from the
Trump Campaign, including President Trump, reported to law
enforcement any contacts or offers of foreign assistance.
Instead, President Trump openly welcomed and invited Russian
interference in the election.\933\
---------------------------------------------------------------------------
\932\Mueller Report Vol. I at 5.
\933\See generally Mueller Report Vol. II.
---------------------------------------------------------------------------
Rather than aid the Special Counsel's investigation into
Russian interference, President Trump sought to thwart it--and
used the powers of his office as part of that scheme.\934\ Most
notably, after learning that he was himself under
investigation, President Trump among other things ordered the
firing of the Special Counsel,\935\ sought to curtail the
Special Counsel's investigation in a manner exempting his own
prior conduct,\936\ instructed the White House Counsel to
create a false record and make false public statements,\937\
and tampered with at least two key witnesses in the Special
Counsel's investigation.\938\ Based on the Special Counsel's
report, these acts were obstructive in nature, and there is
evidence strongly supporting that President Trump acted with
the improper (and criminal) purpose of avoiding potential
liability and concealing information that he viewed as
personally and politically damaging.\939\
---------------------------------------------------------------------------
\934\See id.
\935\See id. at 77-90.
\936\See id. at 90-98.
\937\See id. at 113-20.
\938\See id. at 120-56.
\939\See id. at 87-90, 97-98, 118-20, 131-33, 153-56.
---------------------------------------------------------------------------
The pattern is as unmistakable as it is unnerving. There,
President Trump welcomed and invited a foreign nation to
interfere in a United States Presidential election to his
advantage; here, President Trump solicited and pressured a
foreign nation to do so. There, Executive Branch law
enforcement investigated; here, the House impeachment inquiry
investigated. There, President Trump used the powers of his
office to obstruct and seek to fire the Special Counsel; here,
President Trump used the powers of his office to obstruct and
embargo the House impeachment inquiry. There, while obstructing
investigators, the President stated that he remained free to
invite foreign interference in our elections; here, while
obstructing investigators, President Trump in fact invited
additional foreign interference. Indeed, President Trump placed
his fateful July 25 call to President Zelensky just one day
after the Special Counsel testified in Congress about his
findings.
Viewed in this frame, it is apparent that President Trump
sees no barrier to inviting (or inducing) foreign interference
in our elections, using the powers of his office to obstruct
anyone who dares to investigate such misconduct, and engaging
in the same conduct with impunity all over again. Although the
Second Article of Impeachment focuses on President Trump's
categorical and indiscriminate obstruction of the House
impeachment inquiry, the consistency of this obstruction with
his broader pattern of misconduct is relevant and
striking.\940\
---------------------------------------------------------------------------
\940\The same point applies to President Trump's unjustified and
improper obstruction of this Committee's efforts to investigate the
evidence bearing on the question of whether President Trump committed
obstruction of justice in his efforts to undermine the Special
Counsel's investigation. See, e.g., Nadler Statement on White House
Obstruction of Dearborn, Porter & Lewandowski Testimony, House
Committee on the Judiciary, Sept. 16, 2019 (addressing White House
obstruction of witness testimony on grounds of ``absolute immunity'').
Of course, several matters relating to that issue are currently pending
before the courts. See, e.g., McGahn, 2019 WL 6312011, at *28 (D.D.C.
Nov. 25, 2019), appeal docketed, No. 19-5331 (D.C. Cir. Nov. 26, 2019).
---------------------------------------------------------------------------
IV. Conclusion
As the Investigating Committees concluded, ``it would be
hard to imagine a stronger or more complete case of obstruction
than that demonstrated by the President since the [impeachment]
inquiry began.''\941\ In the history of our Republic, no
President has obstructed Congress like President Trump. If
President Nixon's obstruction of Congress raised a slippery
slope concern, we now find ourselves at the bottom of the
slope, surveying the damage to our Constitution.
---------------------------------------------------------------------------
\941\Ukraine Report at 9.
---------------------------------------------------------------------------
That damage is extraordinary. As explained above, and as
set forth in Article II, President Trump has ``sought to
arrogate to himself the right to determine the propriety,
scope, and nature of an impeachment inquiry into his own
conduct, as well as the unilateral prerogative to deny any and
all information to the House of Representatives in the exercise
of its `sole Power of Impeachment.'''\942\ This abuse of the
Presidential office, moreover, ``served to cover up the
President's own repeated misconduct and to seize and control
the power of impeachment--and thus to nullify a vital
constitutional safeguard vested solely in the House of
Representatives.''\943\ If President Trump is left unchecked,
we will send an alarming message to future Presidents.
---------------------------------------------------------------------------
\942\H. Res. 755, 116th Cong. Art. II (2019).
\943\Id.
---------------------------------------------------------------------------
In word and deed, President Trump has sought to write the
Impeachment Clause out of the Constitution. If his excuses for
that conduct are accepted, then every future President can
choose to ignore House subpoenas, and a bulwark against tyranny
will be undone. This time, courageous and patriotic public
servants defied the President's direction and offered testimony
about his corrupt solicitation and inducement of foreign
interference in our elections. Next time, we may not be so
fortunate, and a President may perpetrate abuses that remain
unknown or unprovable. That is exactly what the Framers feared
most as they designed the Office of the President. It is what
they warned against in their deliberations, and what they
sought to prevent by authorizing impeachments. We are the
inheritors of that legacy--of a Republic, if we can keep it.
Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress and pursuant to H. Res. 660, the following
hearings were used to develop H. Res. 755:
1. ``The Impeachment Inquiry into President Donald J.
Trump: Constitutional Grounds for Presidential Impeachment,''
held before the Judiciary Committee on December 4, 2019. During
this hearing, the Committee heard testimony from: Noah Feldman,
Felix Frankfurter Professor of Law and Director, Julis-
Rabinowitz Program on Jewish and Israeli Law at Harvard Law
School; Pamela S. Karlan, Kenneth and Harle Montgomery
Professor of Public Interest Law and Co-Director, Supreme Court
Litigation Clinic at Stanford Law School; Michael Gerhardt,
Burton Craige Distinguished Professor of Jurisprudence at the
University of North Carolina School of Law; and Jonathan
Turley, J.B. and Maurice C. Shapiro Professor of Public
Interest Law at the George Washington University Law School. In
this hearing, the witnesses testified on the permissible
grounds for presidential impeachment.
2. ``The Impeachment Inquiry into President Donald J.
Trump: Presentations from the House Permanent Select Committee
on Intelligence and House Judiciary Committee,'' held before
the Judiciary Committee on December 9, 2019. During this
hearing, the Committee heard presentations from: Barry Berke,
Majority Counsel for the House Committee on the Judiciary;
Daniel Goldman, Majority Counsel for the House Permanent Select
Committee on Intelligence; and Stephen Castor Minority Counsel
for the House Committee on the Judiciary and the House
Permanent Select Committee on Intelligence. Pursuant to H. Res.
660, in this hearing, Majority and Minority Counsels for the
House Committee on the Judiciary presented opening statements,
followed by presentations of evidence from Majority and
Minority Counsels for the House Permanent Select Committee on
Intelligence.
Committee Consideration
On December 11, 12, and 13, 2019, the Committee met in open
session to consider H. Res. 755. On December 13, the Committee
ordered the resolution favorably reported to the House with an
amendment. Pursuant to clause 5 of rule XVI, the vote on
reporting the resolution was divided into separate votes on the
articles. The Committee approved Article I (abuse of power) by
a rollcall vote of 23 to 17 and it approved Article II
(obstruction of Congress) by a rollcall vote of 23 to 17, in
each case a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration H. Res. 755:
1. A motion by Ms. Lofgren to lay on the table Mr. Collins'
appeal of the ruling of the chair that the Committee was not
required to hold a minority hearing day before considering
articles of impeachment, was agreed to by a vote of 23 to 17.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
2. An amendment by Mr. Jordan to strike article I from the
resolution, was defeated by a rollcall vote of 17 to 23.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
3. An amendment by Mr. Gaetz to replace a reference to the
investigation into Joseph R. Biden with Burisma and Hunter
Biden, was defeated by a rollcall vote of 17 to 23.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
4. An amendment by Mr. Biggs to insert a section asserting
foreign aid was released after President Zelensky signed anti-
corruption measures into law, was defeated by a rollcall vote
of 17 to 23.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
5. An amendment by Mr. Reschenthaler to strike article II
from the resolution, was defeated by a rollcall vote of 17 to
23.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
6. An amendment by Mr. Jordan to strike language asserting
President Trump's conduct has demonstrated that he warrants
``impeachment and trial, removal from office, and
disqualification to hold and enjoy any office of honor, trust,
or profit under the United States,'' was defeated by a rollcall
vote of 17 to 23.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
7. Upon demand that the vote to report the resolution, as
amended, favorably to the House be divided into two
propositions pursuant clause 5 of Rule XVI, Article I of the
resolution (abuse of power) was agreed to by a rollcall vote of
23 to 17.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
8. Upon demand that the vote to report the resolution, as
amended, favorably to the House be divided into two
propositions pursuant clause 5 of Rule XVI, Article II of the
resolution (obstruction of Congress) was agreed to by a
rollcall vote of 23 to 17.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974 and with respect to requirements of clause
(3)(c)(3) of rule XIII of the Rules of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, are inapplicable because this resolution does not
provide new budgetary authority or increased tax expenditures.
Additionally, the Committee believes that the resolution will
have no budget effect.
Duplication of Federal Programs
No provision of H. Res. 755 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H. Res.
755 recommends articles of impeachment for President Donald J.
Trump.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H. Res. 755 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Dissenting Views
CONTENTS
Page
I. Introduction....................................................181
II. Procedural Background...........................................183
A. Impeachment Proceedings Without Authorization......... 183
B. The Bifurcation of Impeachment Inquiry Proceedings
Under H. Res. 660.................................... 183
C. Committee Proceedings Under H. Res. 660............... 184
1. Failure to Schedule a Minority Hearing Day.......... 184
2. Staff Presentation.................................. 185
3. Rejection of All Republican Witness Requests........ 185
III.Factual Background..............................................186
IV. Article I Fails to Establish an Impeachable Offense.............187
A. Impeachment in the House of Representatives Requires
Clear and Convincing Evidence of Specific Impeachable
Conduct. The Majority Has Not Met Its Burden......... 188
B. Abuse of Power Allegations Are Overbroad and Fail to
Allege Specific Impeachable Conduct.................. 189
1. Claims About the 2020 Election are Hyperbolic and
Misleading......................................... 190
2. Prior Presidential Impeachments Were All Based on
Criminality........................................ 192
3. This is the First Presidential Impeachment Where the
Primary Allegations Have Not Been Proven........... 192
C. The Majority Fails to Explain Why Asking About Hunter
Biden's Role on Burisma Board of Directors is a High
Crime or Misdemeanor................................. 194
V. Article II Fails to Establish an Impeachable Offense............195
A. Obstruction of Congress Does Not Constitute a High
Crime or High Misdemeanor While Further Recourse is
Available............................................ 196
B. An Impeachment Inquiry Does Not Elevate the House of
Representatives Above Fundamental Privileges......... 198
C. The Majority's Failure to Conduct an Impeachment
Inquiry in Accordance with Precedent has Led to Ex
Post Facto Characterizations of that Inquiry......... 199
D. Assertions of Privilege by Previous Administrations
Never Merited Impeachment............................ 200
VI. Conclusion......................................................200
I. Introduction\1\
---------------------------------------------------------------------------
\1\As an initial matter, the Minority wishes to note for the record
its unwavering commitment to security for the people and the nation of
Ukraine. Throughout this process, the Minority has been cast variously
as against foreign aid, pro-Russia, or unsympathetic to the plight of
Ukrainians, who face unimaginable hardship in the face of Russian
aggression. To the Ukrainian people, we say we categorically reject
these characterizations and apologize that the Ukrainian democracy has
been thrust into the spotlight besmirching both of our leaders. We
congratulate you on your election of President Zelensky, whose
commitment to fighting corruption and the Russian threat are values all
decent Americans share with you.
---------------------------------------------------------------------------
Impeachment of an American president demands the accuser
prioritize legitimacy and thoroughness over expediency. In the
impeachment inquiries for Presidents Johnson, Nixon, and
Clinton, the facts had been established and agreed upon by the
time Articles of Impeachment were considered. Due to years-long
investigations into the allegations against Nixon and Clinton,
the only question to answer was what Congress would do to
confront the findings.
The evidence uncovered in this impeachment, by contrast,
shows the case is not only weak but dangerously lowers the bar
for future impeachments. The record put forth by the Majority
is based on inferences built upon presumptions and hearsay. In
short, the Majority has failed to make a credible, factually-
based allegation against this president that merits
impeachment.\2\
---------------------------------------------------------------------------
\2\See Jonathan Turley, ``The Impeachment Inquiry Into President
Donald J. Trump: The Constitutional Basis For Presidential
Impeachment,'' House Committee on the Judiciary, Written Statement,
Dec. 4, 2019, at 4. (``I am concerned about lowering impeachment
standards to fit a paucity of evidence and an abundance of anger. I
believe this impeachment not only fails the standard of past
impeachments but would create a dangerous precedent for future
impeachments.'').
---------------------------------------------------------------------------
By deciding to pursue impeachment first and build a case
second, the Majority has created a challenge for itself. In the
face of new information that exculpates or exonerates the
President, the Majority must choose: either accept that the
impeachment inquiry's findings do not merit impeachment and
face the political consequences or, alternatively, ignore those
facts. Regrettably, the Majority has chosen the latter.
As detailed in Section III below, since the delivery of the
Intelligence Committee's Reports (both Majority and Minority),
new developments have emerged that further undermine the case
for impeachment. The Majority's response to new exculpatory
facts, as it has been since the day the President was elected,
is to ignore them and press on.
The Majority has not only ignored exculpatory evidence but
proclaims the facts are ``uncontested.'' The facts are
contested, and, in many areas, the Majority's claims are
directly contradicted by the evidence. That assertion is
further contradicted by the Articles of Impeachment themselves.
Not one of the criminal accusations leveled at the President
over the past year--including bribery, extortion, collusion/
conspiracy with foreign enemies, or obstruction of justice--has
found a place in the Articles. Some of these accusations are,
in fact, holdovers from an earlier disingenuous attempt by the
Majority to weaponize the Russia collusion investigations for
political gain. The Majority has not made the case for
impeachment in part due to its decision to impeach being rooted
less in a concern for the nation than the debasement of the
President.
History will record the impeachment of President Donald J.
Trump as a signal that even the gravest constitutional remedy
is not beyond political exploitation. The Articles of
Impeachment alone, drafted by the Majority in haste to meet a
self-imposed December deadline, underscore the Majority's
anemic impeachment case. The Majority's actions are
unprecedented, unjustifiable, and will only dilute the
significance of the dire recourse that is impeachment. The
ramifications for future presidents are not difficult to
surmise. If partisan passions are not restrained, the House of
Representatives will be thrown into an endless cycle of
impeachment, foregoing its duty to legislate and usurping the
place of the American people in electing their president.
II. Procedural Background
Apart from those factual and evidentiary shortcomings
referenced above, the Majority's dedication to impeaching the
President at any cost was well-reflected by their willful
disregard of House Rules and congressional precedent.
Throughout the first session of the 116th Congress, Chairman
Jerrold Nadler repeatedly violated any Rules that
inconvenienced the Committee's ardent attempts to impeach the
President. The Committee's impeachment-related activities
during the first session of the 116th Congress should be viewed
as a cautionary tale.
In 1974, Chairman Peter Rodino approached the question of
presidential impeachment solemnly and with an eye towards
fairness and thoroughness. He worked diligently to ensure that
such a country-altering process was conducted with not only
bipartisan support, but with the support of the American
people. What has occurred in the halls of Congress over the
final months of 2019 has been a sharp and unfortunate departure
from Chairman Rodino's legacy. The institutional damage done to
the House of Representatives by the Majority throughout this
impeachment ``process'' can never be repeated.
A. IMPEACHMENT PROCEEDINGS WITHOUT AUTHORIZATION
For most of 2019, the House Committee on the Judiciary (the
``Committee'' or the ``Judiciary Committee'') conducted various
``impeachment'' hearings outside the scope of its authority
under rule X of the Rules of the House. The Chairman's refusal
to seek authorization by a vote of the full House of
Representatives--as was done in 1974 and 1998--denied every
Member of the House of Representatives the opportunity to
determine whether such proceedings should commence.
Not only did the Majority fail to seek authorization from
the House of Representatives, they insisted they did not need
it. On multiple occasions, Speaker of the House Nancy Pelosi
and the Chairman denied that a vote of the full House of
Representatives was necessary prior to conducting an
impeachment inquiry, arguing that House committees could
conduct oversight pursuant to rule X of the Rules of the
House.\3\ This is a manipulative reading of the Rules. Rule X
prescribes--in list format--the specific topics over which each
House committee may exercise jurisdiction. Impeachment is not
listed in rule X.\4\ To add--even temporarily--to a committee's
jurisdiction, the full House of Representatives must agree.\5\
---------------------------------------------------------------------------
\3\Nadler: These are `formal impeachment proceedings', CNN (Aug. 8,
2019); Susan Cornwall, U.S. House Will Hold Off on Vote to Authorize
Impeachment Probe: Pelosi, Reuters, (Oct. 15, 2019).; Lindsey
McPherson, McCarthy Asks Pelosi to Suspend Impeachment Inquiry Until
She Defines Procedures, RollCall, (Oct. 3, 2019).
\4\Rules of the House of Representative, Rule X.
\5\Deschler-Brown's Precedents, Volume 3, Chapter 10. 94th Cong.
2042 (1994).
---------------------------------------------------------------------------
B. THE BIFURCATION OF IMPEACHMENT INQUIRY PROCEEDINGS UNDER H. RES. 660
The adoption of H. Res. 660 diverged substantially, and
without justification, from prior authorizations agreed to by
the House of Representatives in 1974 and 1998. Most notably, it
bifurcated impeachment proceedings, allowing the House
Permanent Select Committee on Intelligence (the ``Intelligence
Committee'') to usurp what has traditionally been the
Committee's investigative role in presidential impeachment. To
be clear, Members of the House of Representatives will soon
have to vote on Articles of Impeachment reported by a Judiciary
Committee that has barely reviewed the alleged evidence. After
the Intelligence Committee ``investigation,'' the Judiciary
Committee held only one hearing and one presentation from staff
on the impeachment inquiry. Not only was the Judiciary
Committee almost completely shut out from the impeachment
inquiry, it turned down the opportunity to examine all of the
evidence collected by the Intelligence Committee or to hear
testimony from even one fact witness.
The Majority allowed the entire investigative portion to
take place in a committee that denied Minority-requested
witnesses, would not allow the participation of the President's
counsel to question fact witnesses, and censored Minority
questions.\6\ After the Intelligence Committee's one-sided
investigation, the Judiciary Committee was unable to conduct a
full review, leaving the American people in the dark.
---------------------------------------------------------------------------
\6\Valerie Richardson, Adam Schiff Rejects Hunter Biden,
`Whistleblower' as Impeachment Witnesses, Washington Times (Nov. 10,
2019); Bob Fredericks & Aaron Feis, Adam Schiff Blocks Republicans'
Attempts to Question Impeachment Witnesses, New York Post (Nov. 19,
2019).
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C. COMMITTEE PROCEEDINGS UNDER H. RES. 660
1. Failure to Schedule a Minority Hearing Day
The Minority has a right to a minority day of hearings
under clause 2(j)(1) of Rule XI of the Rules of the House.\7\
The Rules set forth that a minority day of hearings must occur
on the ``measure or matter'' under consideration at the time of
the demand. On December 4, 2019, the Committee held a hearing
titled ``The Impeachment Inquiry into President Donald J.
Trump: Constitutional Grounds for Presidential
Impeachment.''\8\ It was during that hearing that a demand for
a minority day of hearings was made. In fact, a demand for a
minority day of hearings was made less than two minutes after
the start of the hearing, which was the first Committee hearing
designated pursuant to H. Res. 660.\9\ Given the issue under
consideration at the December 4 hearing, the Rules would
require that the Chairman schedule a minority day of hearings
on the impeachment inquiry into President Donald J. Trump, the
matter under consideration at the time of the demand. Once the
articles of impeachment were considered and adopted, the
impeachment inquiry ended, and the necessity of the minority
hearing day dissipated.
---------------------------------------------------------------------------
\7\Rules of the House of Representative, Clause (2)(j)(1), rule XI.
\8\The Impeachment Inquiry into President Donald J. Trump:
Constitutional Grounds for Presidential Impeachment, Hearing Before the
H. Comm. On the Judiciary, 116th Cong. (2019).
\9\Id. at 4.
---------------------------------------------------------------------------
After the Chairman failed to acknowledge his obligation to
schedule such a hearing during the December 4 hearing, Ranking
Member Doug Collins sent a letter the following day reminding
the Chairman that the requested minority hearing day must be
scheduled before Committee consideration of any articles of
impeachment.
The issue was again raised at the staff presentation
hearing on December 9, 2019.\10\ Each time the issue was raised
directly to the Chairman, he said that he was still considering
the request.\11\ At the markup of articles of impeachment, a
point of order was made against consideration of the articles
for the Chairman's failure to schedule a minority hearing day.
Instead of acknowledging his violation of the Rules, the
Chairman ruled against the point of order, depriving Minority
Members of their right to a minority day of hearings.
---------------------------------------------------------------------------
\10\The Impeachment Inquiry into President Donald J. Trump:
Presentations from the House Permanent Select Committee on Intelligence
and House Judiciary Committee, Hearing Before the H. Comm. on the
Judiciary, 116th Cong. 12 (2019).
\11\The Impeachment Inquiry into President Donald J. Trump:
Presentations from the House Permanent Select Committee on Intelligence
and House Judiciary Committee, Hearing Before the H. Comm. on the
Judiciary, 116th Cong. 13 (2019).
---------------------------------------------------------------------------
Such a blatant, intentional, and impactful violation of the
Rules during consideration of a matter as course-altering as
articles of impeachment has never occurred in the history of
the House of Representatives.
2. Staff Presentation
The staff ``presentation'' hearing held on Monday, December
9, 2019, could only be described as a bizarre, made-for-TV
divergence from the precedent set during the impeachments of
Presidents Nixon and Clinton. Staff presentations in 1974 and
1998 occurred as a means to assist Members of the Committee in
sorting through dense volumes of evidence. The December 9
hearing was set up by the Majority as a means to functionally
replace the participation of Members of Congress with paid,
outside consultants, not to advise them.
To begin, an outside consultant to the Majority, Barry
Berke, was permitted to make a presentation to the Committee
without being sworn in or questioned by Members of the
Committee.\12\ He was later permitted forty-five minutes to
cross-examine the Minority staff member (after said staffer had
been sworn in) that had earlier presented the counter argument
to his ``presentation,'' which was in fact just thirty minutes
of opinion.
---------------------------------------------------------------------------
\12\Id. at 74-5.
---------------------------------------------------------------------------
This aspect of the hearing comported with the procedures of
H. Res. 660, but we question any application of the Rules that
would permit a private consultant to use Committee proceedings
to cross examine a career staff member for forty-five minutes
but only allow the majority of Members on the Committee five
minutes to ask questions.
Future staff presentations of evidence during impeachment
inquiries should be just that--presentations of evidence
compiled and reviewed by the Committee. Instead, this Majority
chose to prioritize TV ratings over meaningful Member
participation and a greater understanding of the facts.
3. Rejection of All Republican Witness Requests
H. Res. 660 provided that the Ranking Member could request
that the Chairman subpoena witnesses. While H. Res. 660
provides no time constraints on such a request, the Chairman
sent a letter requiring that the Ranking Member submit any such
requests by December 6, 2019.\13\ Despite the unjustifiably
short time constraint, the Ranking Member sent a list of
witnesses to the Chairman by the deadline. On Monday December
9, the Chairman rejected all of the Ranking Member's requests
without justification beyond the Chairman's unilateral
determination that the witnesses were not relevant.\14\
Considering that Articles of Impeachment were announced the
very next morning, it is clear that the Chairman had no
intention to provide the Minority Members with an opportunity
to examine additional evidence or call additional witnesses.
---------------------------------------------------------------------------
\13\Letter from the Honorable Jerrold Nadler, Chairman, H. Comm. on
the Judiciary, to the Honorable Doug Collins, Ranking Member, H. Comm.
on the Judiciary (Nov. 29, 2019).
\14\Letter from the Honorable Jerrold Nadler, Chairman, H. Comm. on
the Judiciary, to the Honorable Doug Collins, Ranking Member, H. Comm.
on the Judiciary (Dec. 9, 2019).
---------------------------------------------------------------------------
III. Factual Background
From a substantive perspective, despite the Minority's
efforts,\15\ this Committee invited no fact witnesses to
testify during this impeachment inquiry. Instead, it held one
hearing with a panel of four academics, and one presentation
with a panel of Congressional staffers.
---------------------------------------------------------------------------
\15\See, e.g., Letter from the Honorable Doug Collins, Ranking
Member, H. Comm. on the Judiciary, to the Honorable Jerrold Nadler,
Chairman, H. Comm. on the Judiciary (December 6, 2019).
---------------------------------------------------------------------------
Rather than conduct its own investigation, this Committee
relied on the investigation conducted by the Intelligence
Committee. The Intelligence Committee Majority produced a
report. However, the Intelligence Committee's Minority Staff
Report is the more complete document, describing in significant
detail the evidentiary record.\16\ The Intelligence Committee
Minority Staff Report is incorporated into these Minority Views
and attached as Appendix A. As that Minority Report shows, the
Majority does not have evidence to support the allegations in
the Articles of Impeachment.\17\
---------------------------------------------------------------------------
\16\See Appendix A, Report of Evidence in the Democrats'
Impeachment Inquiry in the House of Representatives (``Intel. Comm.
Minority Report'') (Dec. 2, 2019).
\17\Id.
---------------------------------------------------------------------------
Since the conclusion of the Intelligence Committee's
investigation and the provision of its reports, significant new
facts have come to light that further contradict the Majority's
primary allegation that the President conditioned U.S. security
assistance on the initiation of Ukrainian investigations into a
political rival. The Majority has ignored those facts. First,
on December 2, President Zelensky repeated his earlier
statements\18\ that he was not pressured by President Trump. In
fact, he said he was not aware of a quid pro quo involving U.S.
security assistance.\19\ Second, on December 10, a close aide
to President Zelensky, Andriy Yermak, denied discussing a quid
pro quo with Gordon Sondland, which, as discussed below, is the
linchpin of the Majority's factual case.\20\ It is difficult to
conceive that a months-long pressure campaign existed when the
alleged victims are not aware of it and deny being pressured.
These exculpatory facts not only undercut the Majority's
primary factual claims, they emphasize the problems with the
rushed nature of the process.
---------------------------------------------------------------------------
\18\Tara Law, `Nobody Pushed Me.' Ukrainian President Denies Trump
Pressured Him to Investigate Biden's Son, TIME (Sep. 25, 2019).
\19\Simon Shuster, `I Don't Trust Anyone at All,' Ukrainian
President Volodymyr Zelensky Speaks Out on Trump, Putin and a Divided
Europe, TIME (Dec. 2, 2019).
\20\Simon Shuster, Top Ukraine Official Andriy Yermak Casts Doubt
on Key Impeachment Testimony, TIME (Dec. 10, 2019).
---------------------------------------------------------------------------
IV. Article I Fails to Establish an Impeachable Offense
Impeachment is only warranted for conduct that constitutes
``Treason, Bribery, or other high Crimes and
Misdemeanors.''\21\ For months, the Majority claimed the
President was guilty of bribery, extortion, and a host of other
common law and penal code crimes,\22\ but the Articles of
Impeachment do not include any of those specific offenses. In
fact, the first Article in the resolution sponsored by Chairman
Nadler alleges an amorphous charge of ``abuse of power.''\23\
---------------------------------------------------------------------------
\21\U.S. Const. Art. II, Sec. 4.
\22\See e.g., Mike DeBonis & Toluse Olorunnipa, Democrats sharpen
impeachment case, decrying `bribery' as another potential witness
emerges linking Trump to Ukraine scandal, Washington Post (Nov. 14,
2019).
\23\H. Res. 775, 116th Cong. (2019).
---------------------------------------------------------------------------
Simply put, the Majority has included the vague ``abuse of
power'' charge because they lack the evidence to prove bribery,
extortion, or any other crimes. For example, during the
Committee's markup of the articles of impeachment, Members from
the Minority explained in detail why the Majority's claims that
the President was guilty of bribery were erroneous.\24\
---------------------------------------------------------------------------
\24\See Markup of H. Res 755, Articles of Impeachment Against
President Donald J. Trump, Before the H. Comm. on the Judiciary, 116th
Cong. 77-78, 167-68 (statements of Reps. Buck and Reschenthaler;
specifically, that Democrats lacked the evidence to prove at least
three elements of the crime of bribery).
---------------------------------------------------------------------------
It is not the Minority's contention that an abuse of power
can never form the basis for an impeachment. But an accusation
of abuse of power must be based on a higher and more concrete
standard than conduct that ``ignored and injured the interests
of the Nation.''\25\ The people, through elections, decide what
constitutes the ``interests of the nation.'' For an abuse of
power charge, although ``criminality is not required . . .
clarity is necessary.''\26\
---------------------------------------------------------------------------
\25\Id. at 110 (Article I, charging that the President abused his
power because he ``ignored and injured the interests of the nation.'').
\26\Turley, supra note 2, at 11.
---------------------------------------------------------------------------
Unfortunately, such clarity is utterly lacking in the
Majority's articles. This is the first presidential impeachment
in American history without the allegation of a crime, let
alone a high crime or high misdemeanor. The absence of even an
allegation of criminality, after months of claiming multiple
crimes had been committed, reveals the Majority's inability to
substantiate their claims.\27\ The abuse of power charge in the
first Article is vague, unprovable, and confined only by the
impulses of the majority party in the House of Representatives.
The Majority has failed to distinguish its definition of
``abuse of power'' from simple dislike or disagreement with the
President's actions because this impeachment is inextricably
tied to the Majority's dislike and disagreement with the
President. That is not what the Founders intended.
---------------------------------------------------------------------------
\27\See Appendix A (Intel. Comm. Minority Report), outlining the
evidentiary deficiencies in the Majority's case.
---------------------------------------------------------------------------
The crux of the factual allegations in the first Article is
that the President directed a months-long pressure campaign to
force President Zelensky to announce particular investigations
in exchange for U.S. security assistance or a White House
meeting, in an effort to influence the 2020 election. The
Intelligence Committee Minority Report demonstrates that these
claims were not only unproven but, in fact, are undermined or
contradicted by the primary actors in the alleged scheme.\28\
Significantly, the alleged victims of the supposed pressure
campaign were not even aware of any so-called pressure
campaign.\29\ Indeed, if the Majority had proof of bribery,
they would have said so in the Articles.
---------------------------------------------------------------------------
\28\Id. at 32-64.
\29\Georgi Kantchev, Ukrainian President Denies Trump Pressured Him
During July Call, Wall Street Journal (Oct. 10, 2019) (President
Zelensky said, ``There was no blackmail.''); Matthias Williams, U.S.
envoy Sondland did not link Biden probe to aid: Ukraine minister,
Reuters (Nov. 14, 2019) (Ukraine's Foreign Minister Vadym Prystaiko
said Ambassador Sondland ``did not tell us . . . about a connection
between the assistance and the investigations.''); Mark Moore,
Ukraine's Zelensky again denies quid pro quo during Trump phone call,
NY Post (Dec. 2, 2019) (President Zelensky again denies there was a
quid pro quo); Simon Shuster, Top Ukraine Official Andriy Yermak Casts
Doubt on Key Impeachment Testimony, TIME (Dec. 10, 2019) (Andriy Yermak
denies discussing military assistance with Ambassador Sondland).
---------------------------------------------------------------------------
Because they do not have direct evidence of a pressure
campaign against the Ukrainians, the Majority's allegations are
based on presumptions, assumptions, hearsay, and
inferences.\30\ And its most critical assumptions and
inferences have been contradicted by direct evidence from the
primary actors in the alleged scheme.\31\ It is no surprise the
allegations shifted from quid pro quo, bribery, and extortion
to settle on an undefined ``abuse of power.'' The facts
uncovered by the Intelligence Committee fail to approach the
constitutional and historical standard for impeaching a
president.\32\ As Professor Jonathan Turley testified before
this Committee, this is the ``thinnest evidentiary record'' in
the history of presidential impeachments.\33\ The reason the
Majority has failed to seek information to substantiate that
record, as Professor Turley and the Minority agree, is ``an
arbitrary deadline at the end of December.''\34\
---------------------------------------------------------------------------
\30\See The Impeachment Inquiry into President Donald J. Trump:
Testimony of Ambassador Gordon Sondland, Hearing Before the H. Perm.
Sel. Comm. on Intelligence, 116th Cong. 148-51 (2019) (Ambassador
Sondland testifying that his testimony about military was a
``presumption'' and that nobody told him the aid was linked to
investigations); see also Appendix A (Intel. Comm. Minority Views) at
32-64.
\31\See supra note 29; Intel. Comm. Minority Views, at 43-44
(testimony of Ambassador Kurt Volker, the Special Envoy to Ukraine);
Letter from Sen. Ron Johnson to the Honorable Jim Jordan, Ranking
Member, H. Comm. on Oversight & Reform, and the Honorable Devin Nunes,
Ranking Member, H. Perm. Sel. Comm. on Intelligence (Nov. 18, 2019).
\32\See supra note 10 (Opening Statement of Stephen R. Castor).
\33\Turley, supra note 2, at 4.
\34\Id. at 48.
---------------------------------------------------------------------------
A. IMPEACHMENT IN THE HOUSE OF REPRESENTATIVES REQUIRES CLEAR AND
CONVINCING EVIDENCE OF SPECIFIC IMPEACHABLE CONDUCT. THE MAJORITY HAS
NOT MET ITS BURDEN.
Some in the Majority have argued that the House of
Representatives is like a grand jury that should vote to
impeach based on probable cause. This framing contradicts
historical precedent. In the Clinton Impeachment Minority
Views, House Democrats stated that the burden of proof, just as
it was in the Nixon inquiry, should be ``clear and convincing
evidence.''\35\ Chairman Nadler elaborated on that standard
when he said:
---------------------------------------------------------------------------
\35\See id. at 211.
At a bare minimum, [ ] the president's accusers must
go beyond hearsay and innuendo and beyond demands that
the president prove his innocence of vague and changing
charges. They must provide clear and convincing
evidence of specific impeachable conduct.\36\
---------------------------------------------------------------------------
\36\Impeachment Inquiry: William Jefferson Clinton, President of
the United States, 105th Cong., Consideration of Articles of
Impeachment 78 (Comm. Print 1998) (statement of Rep. Jerrold Nadler).
The Majority should reflect upon Chairman Nadler's words.
The staff report on Constitutional Grounds for Impeachment
filed during the Nixon impeachment further explains the high
bar required for impeachment:
Because impeachment of a President is a grave step
for the nation, it is to be predicated only upon
conduct seriously incompatible with either the
constitutional form and principles of our government or
the proper performance of constitutional duties of the
presidential office.\37\
---------------------------------------------------------------------------
\37\Staff of H. Comm. on the Judiciary, 93d Cong., Constitutional
Grounds for Presidential Impeachment 4, at 27 (Comm. Print 1974)
(``Nixon Constitutional Grounds for Presidential Impeachment'').
As described below, the Majority's case fails to meet the
burden of proof required.\38\
---------------------------------------------------------------------------
\38\See also Appendix A (Intel Comm. Minority Report).
---------------------------------------------------------------------------
B. ABUSE OF POWER ALLEGATIONS ARE OVERBROAD AND FAIL TO ALLEGE SPECIFIC
IMPEACHABLE CONDUCT
Instead of alleging specific impeachable conduct, such as
bribery or other high crimes, the Majority has alleged the
vague and malleable charge of ``abuse of power.'' While a
consensus of scholars agree it is possible to impeach a
president for non-criminal acts, the House of Representatives
has never done so based ``solely or even largely on the basis
of a non-criminal abuse of power allegation.''\39\ That is
because ``[c]riminal allegations not only represent the most
serious forms of conduct under our laws, but they also offer an
objective source for measuring and proving such conduct.''\40\
No such objective measure has been articulated by the Majority.
---------------------------------------------------------------------------
\39\Turley, supra note 2, at 47.
\40\Id. at 23.
---------------------------------------------------------------------------
The Majority claims its abuse of power standard is
satisfied when a president injures ``the interests of the
nation'' for a personal political benefit.\41\ What constitutes
an injury to the national interest has been left undefined. It
can mean anything a majority in Congress wants it to mean. The
opposition party almost unfailingly disagrees with a president
on many issues and can always argue his or her actions injure
the national interest. Here, for example, Majority Members have
already begun to argue the abuse of power allegations in the
first Article encompass conduct totally unrelated to the
Ukraine allegations.\42\ Moreover, nearly any action taken by a
politician can result in a personal political benefit. When a
certain standard can always be met by virtually all presidents,
depending on partisan viewpoints, that standard has no limiting
neutral principle and must be rejected. Simply stated, the
Majority is advancing an impeachment based on policy
differences with the President--a dangerous and slippery slope
that our Founders cautioned against during discussions crafting
the impeachment clause.
---------------------------------------------------------------------------
\41\See H. Res. 755, 116th Cong. (2019) (Article I).
\42\See, e.g., Rep. Rashida Tlaib, TWITTER, Dec. 10, 2019, 11:14am
(stating that ``abuse of power'' standard includes the allegation that
the ``President targeted people solely based on their ethic [sic]
background, their faith, disability, sexual orientation and even source
of income.'').
---------------------------------------------------------------------------
The Founders warned against such a vague and open-ended
charge because it can be applied in a partisan fashion by a
majority of the House of Representatives against an opposition
president. Alexander Hamilton called partisan impeachment
``regulated more by the comparative strength of parties, than
by the real demonstrations of innocence or guilt'' the
``greatest danger.''\43\ Additionally, the Founders explicitly
excluded the term ``maladministration'' from the impeachment
clause because they did not want to subject presidents to the
whims of Congress.\44\ James Madison said, ``So vague a term
will be equivalent to a tenure during pleasure of the
Senate.''\45\ As applied here, the Majority's abuse of power
standard does precisely what the Founders rejected.
---------------------------------------------------------------------------
\43\The Federalist No. 65 (Alexander Hamilton).
\44\2 The Records of the Federal Convention of 1787, 550 (Max
Farrand ed., 1937).
\45\Id.
---------------------------------------------------------------------------
Thus, when the House of Representatives impeaches a
president for non-criminal abuses of power, it must state with
clarity how the harm to ``national interests'' is so egregious
that it merits usurping the will of the electorate.\46\ The
Majority has attempted to do that by equating a telephone
conversation with election tampering. That argument is
resoundingly unconvincing.
---------------------------------------------------------------------------
\46\Turley, supra note 2, at 11.
---------------------------------------------------------------------------
To prove an abuse of power, the accusation and the evidence
against a president must ``be sufficiently clear to assure the
public that an impeachment is not simply an exercise of
partisan creativity in rationalizing a removal of a
president.''\47\ Here, specific impeachable conduct was not
clearly identified because the Majority failed to prove its
initial allegations of a quid pro quo, bribery, extortion, and
other statutory crimes.
---------------------------------------------------------------------------
\47\Id. at 25.
---------------------------------------------------------------------------
1. Claims About the 2020 Election are Hyperbolic and Misleading
The injury to the national interest alleged against the
President is harm to the integrity of the 2020 election. The
Majority claims the President has engaged in a pattern of
inviting foreign governments to intervene in American
elections, and removal is the only option to preserve American
democracy. Chairman Adam Schiff said not impeaching is
equivalent to saying, ``Why not let him cheat in one more
election?''\48\ That claim is hyperbolic and untrue.
---------------------------------------------------------------------------
\48\Allan Smith & Rebecca Shabad, House leaders unveil two articles
of impeachment, accusing Trump of `high crimes and misdemeanors', NBC
News (Dec. 10, 2019) (``Remarks by Chairman Adam Schiff'').
---------------------------------------------------------------------------
First, the basis for the Majority's claimed pattern of
conduct is a statement made in 2016 by then-candidate Trump
during a public press conference, when he jokingly and
mockingly asked Russia to find former Secretary of State
Hillary Clinton's infamous 30,000 missing emails.\49\ That
statement has now been used as a basis to impeach the President
because, the Majority argues, he invited a foreign power to
intervene in the 2016 election and will do it again. This claim
is specious for at least three reasons. First, the President
was speaking publicly to fellow Americans. The remark was not,
for example, caught on a hot microphone during a private
conversation with the Russian president.\50\ Second, the remark
was made in jest in response to a question at a public press
conference, following the news that 30,000 of Clinton's
emails--potentially incriminating evidence--had mysteriously
disappeared. Millions of Americans, including then-candidate
Trump, were wondering what had happened. Finally, there is no
evidence that the President actively sought to conspire with
Russia to interfere in the election. The Majority simply does
not like the comment.
---------------------------------------------------------------------------
\49\See Ian Schwartz, Trump to Russia: I Hope You're Able to Find
Clinton's 30,000 Missing Email, Real Clear Politics (July 27, 2016).
\50\J. David Goodman, Microphone Catches a Candid Obama, NY Times
(March 26, 2012).
---------------------------------------------------------------------------
The last point is particularly relevant. The Majority
actively ignores the fact that the FBI and a special counsel
spent nearly three years investigating the allegation that the
President or his campaign colluded or conspired with the
Russian government. Both concluded that the Trump-Russia
collusion narrative was baseless.\51\ The special counsel found
no conspiracy and no collusion.\52\ Indeed, on December 9,
2019--the same day the Committee received testimony from
Chairman Schiff's staff, rather than Schiff himself--the
Inspector General released a report outlining a myriad of
egregious errors committed by the FBI during its Russia
collusion investigation.\53\ That the Majority included
references to the Russia collusion narrative in these Articles
of Impeachment illuminates the Majority's disregard for
history, trivializes impeachment, and demonstrates an inability
by the Majority to accept the inconvenient conclusions of those
investigations--which, of course, the Majority previously
lauded. It should be noted that the misconduct uncovered by the
Department of Justice Inspector General largely occurred during
President Obama's administration. As such, there is no basis to
suspect President Trump's administration would allow the same
election year abuses seen in 2016--which included the
wiretapping of then-candidate Trump's campaign worker.\54\
---------------------------------------------------------------------------
\51\See Robert S. Mueller III, Report On The Investigation Into
Russian Interference In The 2016 Presidential Election (March 2019)
(``Mueller Report''); Michael Horowitz, A Review of Various Actions by
the Federal Bureau of Investigation and Department of Justice in
Advance of the 2016 Election (June 2018) (``Horowitz Report'').
\52\See Mueller Report at 1.
\53\See Horowitz Report at i.
\54\Id.
---------------------------------------------------------------------------
Second, there was no invitation by President Trump for
Ukraine to ``intervene'' in the 2020 election. By the
Majority's standard, any action taken by any president that may
affect an election is itself ``intervention'' in that election.
Assuredly, every elected official eligible for reelection gives
thought to how their actions will improve or harm their future
campaign. Asking the president of Ukraine to ``look into''
potential corruption involving Hunter Biden's employment at a
notoriously corrupt company in Ukraine is not ``corrupting
democratic elections.''\55\ Any request, however remote, that
might benefit a politician politically is not an invitation to
corrupt an election. To portray the President's request as
corrupting the 2020 election is disingenuous, at best. As
explained further below, the President did not ask for false
information, and the fact that a key player in a corrupt
Ukrainian company is the son of a politician does not transform
a legitimate question into election interference.
---------------------------------------------------------------------------
\55\H. Res. 755, 116th Cong. (2019) (Article I).
---------------------------------------------------------------------------
Finally, the Majority argues that it must act now to
prevent an ongoing ``crime spree''.\56\ This is a spurious
charge since the Articles of Impeachment do not allege any
crimes, past or present. The Majority's argument that it must
impeach the President to prevent future crimes, on the basis of
past crimes not alleged in the Articles, is difficult to
comprehend. Though impeachment is conceived of as prophylactic,
the Majority would wield it on prognostication alone. The
Majority must point to a high crime or other impeachable
offense before claiming it is acting to protect future
generations. It has completely failed to do so, instead relying
on politically-motivated innuendo.
---------------------------------------------------------------------------
\56\See supra note 24, at 62.
---------------------------------------------------------------------------
2. Prior Presidential Impeachments Were All Based on Criminality
The Majority's Articles of Impeachment are unprecedented in
American history because they are not based on criminality, as
were all prior presidential impeachments. President Johnson was
impeached by the House of Representatives in 1868 for violating
the Tenure of Office Act.\57\ The House Judiciary Committee
approved Articles of Impeachment against President Nixon based
on extensive and proven criminal conduct. As Professor Turley
explained:
---------------------------------------------------------------------------
\57\Turley, supra note 2, at 14-17.
The allegations began with a felony crime of burglary
and swept to encompass an array of other crimes
involving political slush funds, payments of hush
money, maintenance of an enemies list, directing tax
audits of critics, witness intimidation, multiple
instances of perjury, and even an alleged kidnapping.
Ultimately, there were nearly 70 officials charged and
four dozen of them found guilty. Nixon was also named
as an unindicted conspirator by a grand jury. . . . The
claim that the Ukrainian controversy eclipses Watergate
is unhinged from history.\58\
---------------------------------------------------------------------------
\58\Id. at 17-20.
The House of Representatives impeached President Clinton
for the federal crime of lying under oath to deny justice to a
fellow American.\59\ While individual Articles of Impeachment
have been passed against prior presidents that do not allege
criminality, no president has been impeached solely on non-
criminal accusations. This impeachment not only fails to
satisfy the standard of past impeachments but would create a
dangerous precedent because the alleged conduct is unproven.
---------------------------------------------------------------------------
\59\See H. Rept. 105-830, 105th Cong. (1998).
---------------------------------------------------------------------------
3. This Is the First Presidential Impeachment Where the Primary
Allegations Have Not Been Proven
The Majority has said repeatedly that the facts in this
impeachment inquiry are not in dispute. That is false. Not only
are the facts in dispute, the Majority's primary allegations
are based on presumptions that are contradicted by direct
evidence. Indeed, this is the first presidential impeachment
where the primary allegations have not been proven.\60\ In the
Nixon impeachment, the Judiciary Committee had tapes and a host
of proven crimes.\61\ In the Clinton impeachment, there was
physical evidence and a well-founded perjury claim that even
President Clinton's supporters acknowledged was a felony,
leaving them to argue that some felonies are not
impeachable.\62\ Here, all the Majority has presented
connecting the hold on foreign security assistance to a request
for investigations is a presumption by Ambassador Gordon
Sondland.\63\ But that presumption is contradicted by more
credible direct evidence. Specifically, Ambassador Kurt Volker
testified that there was no ``linkage'' between a White House
meeting and Ukrainian actions to investigate President Trump's
political rival.\64\ During his public testimony, in an
exchange with Rep. Mike Turner, Ambassador Volker reiterated
that there was no linkage between foreign security assistance
and investigations.\65\
---------------------------------------------------------------------------
\60\Turley, supra note 2, at 22.
\61\Id.
\62\See Staff of H. Comm. on the Judiciary, 105th Cong.,
Constitutional Grounds for Presidential Impeachment: Modern Precedents,
Minority Views, at 15 (1998) (``Clinton Impeachment Report'').
\63\See supra note 30, at 148-151 (Testimony of Gordon Sondland
stating that his testimony about security assistance was a
``presumption'' and that nobody told him the aid was linked to
investigations).
\64\Transcribed Interview of Ambassador Kurt Volker (Oct. 3, 2019)
at 35-36; 40.
\65\The Impeachment Inquiry into President Donald J. Trump:
Testimony of Ambassador Kurt Volker and Mr. Timothy Morrison, Hearing
Before the H. Perm. Sel. Comm. on Intelligence, 116th Cong. 106-108;
166 (2019).
---------------------------------------------------------------------------
There are four facts that will never change, making it
impossible for the Majority to make any convincing case for the
impeachment of the President on these facts. First, the
President has publicly released the transcript of the July 25
call, which shows no conditionality for any official act.\66\
Second, President Zelensky and his advisors did not know the
aid was on hold until it was reported publicly at the end of
August.\67\ Third, both President Trump and President Zelensky
have said repeatedly there was no pressure, no quid pro quo,
and no linkage between the aid and investigations.\68\ Fourth,
the foreign security assistance funds were released without
Ukraine announcing or undertaking any investigations.
---------------------------------------------------------------------------
\66\The White House, Memorandum of Telephone Conversation 1 (July
25, 2019).
\67\See Appendix A (Intel Comm. Minority Report), at 50 (citing
testimony of Ambassadors Volker and Taylor).
\68\See, e.g., Georgi Kantchev, Ukrainian President Denies Trump
Pressured Him During July Call, WALL STREET JOURNAL (Oct. 10, 2019)
(President Zelensky said ``There was no blackmail.''); Matthias
Williams, U.S. envoy Sondland did not link Biden probe to aid: Ukraine
minister, REUTERS (Nov. 14, 2019) (Ukraine's Foreign Minister Vadym
Prystaiko said Ambassador Sondland ``did not tell us . . . about a
connection between the assistance and the investigations.''); Simon
Shuster, `I Don't Trust Anyone at All,' Ukrainian President Volodymyr
Zelensky Speaks Out on Trump, Putin and a Divided Europe,'' TIME (Dec.
2, 2019) (President Zelensky again denies there was a quid pro quo).
---------------------------------------------------------------------------
Additionally, Andriy Yermak, the only Ukrainian who
allegedly was told about Ambassador Sondland's presumption,
described in great detail his brief encounter with Ambassador
Sondland that occurred when they were walking towards an
escalator and said Ambassador Sondland never told him that U.S.
security assistance was tied to investigations.\69\ It defies
logic to believe the President carefully orchestrated a months-
long pressure campaign involving security assistance when the
alleged victims of the supposed pressure campaign did not even
know about it or about conditionality on any official act.
Equally unconvincing is the assertion that everyone who
disagrees with Ambassador Sondland's presumption is just lying.
---------------------------------------------------------------------------
\69\Simon Shuster, Top Ukraine Official Andriy Yermak Casts Doubt
on Key Impeachment Testimony, TIME (Dec. 10, 2019).
---------------------------------------------------------------------------
Finally, the President was asked about Ambassador
Sondland's presumption on two separate occasions, and both
times President Trump said Sondland was wrong. After Ambassador
Sondland told Senator Ron Johnson on August 30 about his
presumption that U.S. security assistance was linked to
investigations, Senator Johnson called the President on August
31 and asked if Ambassador Sondland's presumption was
accurate.\70\ The President said, ``No way. I would never do
that.''\71\ Senator Johnson and Senator Murphy subsequently met
with President Zelensky. They discussed Ukraine's recent anti-
corruption efforts and U.S. security assistance, but, not
surprisingly, the question of investigations was not
raised.\72\ Likewise, when Ambassador Sondland asked President
Trump what he wants from Ukraine, the President said, ``I want
nothing.''\73\ In fact, the President said he wanted President
Zelensky to do what he ran on: root out corruption in
Ukraine.\74\
---------------------------------------------------------------------------
\70\Letter from Sen. Ron Johnson to the Honorable Jim Jordan,
Ranking Member, H. Comm. on Oversight & Reform, and the Honorable Devin
Nunes, Ranking Member, H. Perm. Sel. Comm. on Intelligence, at 5 (Nov.
18, 2019).
\71\Id. at 6.
\72\Id. at 6-7.
\73\See supra note 30, at 148-151 (Testimony of Ambassador Gordon
Sondland stating the President said ``I want nothing.'').
\74\Id.
---------------------------------------------------------------------------
Ultimately, Ukraine received the U.S. security assistance
and a meeting with the President without announcing any
investigations. There is no evidence that the President engaged
in a pressure campaign or other scheme to condition security
assistance on investigations. The Majority's case is built on a
presumption that is contradicted by the evidence. The
Intelligence Committee Minority Report provides further details
about the flaws in the Majority's factual case. If the Majority
proceeds with impeachment, it will be based on one presumption
from one witness who amended his story multiple times.
C. THE MAJORITY FAILS TO EXPLAIN WHY ASKING ABOUT HUNTER BIDEN'S ROLE
ON BURISMA BOARD OF DIRECTORS IS A HIGH CRIME OR MISDEMEANOR
After failing to substantiate the allegations related to
the U.S. security assistance, the Majority's remaining
allegation is that the President committed the ``high crime''
of asking President Zelensky to look into potential corruption
involving Hunter Biden's role on Burisma's board of
directors.\75\ This allegation is not a high crime or
misdemeanor.
---------------------------------------------------------------------------
\75\See supra note 69.
---------------------------------------------------------------------------
That question was the same question the American media had
been asking for years. For example, on June 20, 2019, ABC News
scrutinized Hunter Biden's involvement on the Burisma board of
directors on a nationally televised news report.\76\ The
reporter asked whether ``Hunter Biden profit[ed] off his Dad's
work as vice-president, and did Joe Biden allow it?''\77\
Numerous other publications have asked the same questions,
including the Wall Street Journal as far back as 2015.\78\
Former Vice President Biden himself, in a widely circulated
video, explained his role in leveraging foreign aid to get a
Ukrainian prosecutor who had investigated Burisma fired during
a speech at the Council on Foreign Relations.\79\ As the New
York Times reported earlier this year, ``Among those who had a
stake in the outcome was Hunter Biden, Mr. Biden's younger son,
who at the time was on the board of an energy company owned by
a Ukrainian oligarch who had been in the sights of the fired
prosecutor general.''\80\ Certainly, the questions surrounding
the Bidens' role in Ukraine have been topics of interest for
the media for a long time.
---------------------------------------------------------------------------
\76\Biden sidesteps questions about son's foreign work, ABC NEWS
(June 20, 2019).
\77\Id.
\78\Paul Sonne & Laura Mills, Ukrainians See Conflict in Biden's
Anticorruption Message, Wall Street Journal (Dec. 7, 2015) (Quoting
Ukrainian corruption expert stating: ``If an investigator sees the son
of the vice president of the United States is part of the management of
a company . . . that investigator will be uncomfortable pushing the
case forward.''); see also James Risen, Joe Biden, His Son and the Case
Against a Ukrainian Oligarch, NY Times (Dec. 8, 2015); Kenneth Vogel &
Iuliia Mendel, Biden Faces Conflict of Interest Questions that are
being Promoted by Trump and Allies, NY Times (May 1, 2019).
\79\Council on Foreign Relations, Foreign Affairs Issue Launch with
Former Vice President Joe Biden (Jan. 23, 2018).
\80\Kenneth Vogel & Iuliia Mendel, Biden Faces Conflict of Interest
Questions that are being promoted by Trump and Allies, NY Times (May 1,
2019).
---------------------------------------------------------------------------
There is nothing untoward about a president asking a
foreign government to investigate the same questions about
potential corruption the American media was asking publicly. In
fact, the United States has been party to a Mutual Legal
Assistance Treaty (MLAT) with Ukraine since 2001.\81\ The
purpose of that MLAT includes ``mutual assistance . . . in
connection with the investigation, prosecution, and prevention
of offenses, and in proceedings related to criminal
matters.''\82\
---------------------------------------------------------------------------
\81\See Department of State, ``Ukraine (12978)--Treaty on Mutual
Legal Assistance in Criminal Matters''.
\82\Id. at art. I cl. 1.
---------------------------------------------------------------------------
Furthermore, being a political campaign participant does
not immunize anyone from scrutiny. The President did not ask
for the creation of any false information. When Lt. Col.
Vindman was asked ``Would it ever be U.S. policy, in your
experience, to ask a foreign leader to open a political
investigation?'' he replied, ``. . . Certainly the President is
well within his right to do that.''\83\
---------------------------------------------------------------------------
\83\The Impeachment Inquiry into President Donald J. Trump:
Testimony of Ms. Jennifer Williams & Lt. Col. Alexander Vindman,
Hearing Before the H. Perm. Sel. Comm. on Intelligence, 116th Cong. 120
(2019).
---------------------------------------------------------------------------
V. Article II Fails To Establish an Impeachable Offense
The second Article of Impeachment, ``Obstruction of
Congress,'' appears to be a simple invective by the Majority
against the constitutional reality of separation of powers.\84\
The Majority's refusal to engage the Executive Branch in the
traditional accommodations process,\85\ or seek redress from
the Judicial Branch, has rendered this Article as baseless as
the first. The system of checks and balances is neither
theoretical nor dispassionate; the Founders fully intended to
put the three branches in conflict, and expected they would
argue self-interestedly for their respective powers.\86\ The
inclusion of the second Article may be due to the Majority's
reticence to propose only a single unsupported Article.
---------------------------------------------------------------------------
\84\See Montesquieu, Charles de Secondat, baron de, 1689-1755. The
Spirit of the Laws. The Colonial Press, 1899 (New York). (``But should
the legislative power usurp a share of the executive, the latter would
be equally undone . . . Here, then, is the fundamental constitution of
the government we are treating of. The legislative body being composed
of two parts, they check one another by the mutual privilege of
rejecting. They are both restrained by the executive power, as the
executive is by the legislative.'').
\85\Cf. U.S. v. Nixon, 418 U.S. 683, 703 (1974) (``In the
performance of assigned constitutional duties, each branch of the
Government must initially interpret the Constitution, and the
interpretation of its power by any branch is due great respect from the
others.'').
\86\The Federalist No. 51 (James Madison) (``This policy of
supplying, by opposite and rival interests, the defect of better
motives, might be traced through the whole system of human affairs,
private as well as public. We see it particularly displayed in all the
subordinate distributions of power, where the constant aim is to divide
and arrange the several offices in such a manner as that each may be a
check on the other that the private interest of every individual may be
a sentinel over the public rights . . . As the weight of the
legislative authority requires that it should be thus divided, the
weakness of the executive may require, on the other hand, that it
should be fortified.'').
---------------------------------------------------------------------------
No president has been impeached for obstruction of
Congress. The Majority seeks to impeach the President not for
violating the Constitution but, instead, for asserting
privileges that are part of its very structure. Though
Legislative frustration with Executive resistance has
previously inspired calls for impeachment and even the drafting
of Articles of Impeachment, in this instance, the Majority is
rushing to impeachment without attempting to engage available
alternative avenues to obtain information. They have failed to
do so because the Majority has set an arbitrary, politically-
motivated deadline, by which it believes it must finish
impeachment. Quite simply, further negotiations or the courts
would take too long for the Majority's liking. This situation
is truly unprecedented.
A. OBSTRUCTION OF CONGRESS DOES NOT CONSTITUTE A HIGH CRIME OR HIGH
MISDEMEANOR WHILE FURTHER RECOURSE IS AVAILABLE
The obstruction of Congress allegations in this second
Article do not meet the impeachable standard demanded by the
Constitution. The Founders intended to create interbranch
conflict. The fact that conflict exists here does not mean the
President has committed either a high crime or a high
misdemeanor. Most significantly, Congress has not pursued any
of its many remedies to resolve interbranch disputes.
Congress has legislated remedies for itself to enforce its
investigation requests, but it has not pursued those
remedies.\87\ Congress may also turn to the Judicial Branch to
resolve interbranch disputes over subpoenas, as it has done
many times in the past.\88\ The Majority has neglected to do
so. The Majority's claim that the current administration's
``total'' declination to participate in the effort to unseat
him--either by the President himself or other Executive Branch
officers--is somehow unprecedented is, simply, incorrect.\89\
The Majority has engaged in a fundamentally unfair process and
created a scenario in which the President's assertion of valid
constitutional privileges is being used as a weapon against
him.
---------------------------------------------------------------------------
\87\See, e.g., 2 U.S.C. Sec. Sec. 192.
\88\See, e.g., H. Comm. on the Judiciary v. Miers, 558 F. Supp. 2d
(D.D.C. 2008).
\89\Many presidents have instructed Executive Branch officials not
to comply with congressional demands. See Theodore Olson, History of
Refusals By Executive Branch Officials to Provide Information Demanded
by Congress, Part I, December 14, 1982, 6 Op. Off. Legal Counsel 751.
The Olson OLC Opinion describes, for example, President Jackson
stating, ``It is now, however, my solemn conviction that I ought no
longer, from any motive nor in any degree, to yield to these
unconstitutional demands. Their continued repetition imposes on me, as
the representative and trustee of the American people, the painful but
imperious duty of resisting to the utmost any further encroachment on
the rights of the Executive.'' President Theodore Roosevelt stated,
``[I have] instructed the Attorney General not to respond to that
portion of the resolution which calls for a statement of his reasons
for nonaction.'' And President Eisenhower, in a May 17, 1954, letter to
the Secretary of Defense said: ``[Y]ou will instruct employees of your
Department that in all of their appearances before the Subcommittee of
the Senate Committee on Government Operations regarding the inquiry now
before it they are not to testify to any such conversations or
communications, or to produce any such documents or reproductions.''
---------------------------------------------------------------------------
The Intelligence Committee Majority served numerous
subpoenas for documents and testimony. However, in at least one
case, when the witness sought judicial review of the subpoena,
the Majority withdrew it. Former Deputy National Security
Advisor and Assistant to the President Charles Kupperman was
one of the few people to listen in on the call between
President Trump and President Zelensky on July 25 and received
a subpoena to testify. When the White House instructed him to
not testify, he asked the court to resolve ``irreconcilable
commands'' from the Legislative and Executive Branches.\90\
Inexplicably, the Majority promptly withdrew the subpoena and
moved to dismiss the lawsuit.
---------------------------------------------------------------------------
\90\Brief of Plaintiff, Charles M. Kupperman, Kupperman v. House of
Representatives, Case No: 1:19-cv-03224 at 2 (D.D.C. Oct. 25, 2019).
---------------------------------------------------------------------------
Additionally, at least three subpoenas authorized and
signed by Intelligence Committee Chairman Schiff were served
prior to the passage of House Resolution 660 (``H. Res.
660'').\91\ Since H. Res. 660 gave Chairman Schiff jurisdiction
to pursue this impeachment inquiry, an authorization he did not
previously wield, it is likely these subpoenas would be
defective and unenforceable since they were issued prior to its
passage. Notably, the House of Representatives has chosen not
to ask the federal judiciary to opine on such questions,
instead rushing straight to impeachment without engaging the
courts to resolve this interbranch dispute.
---------------------------------------------------------------------------
\91\Subpoena of Secretary of State Mike Pompeo (Sept. 27), Subpoena
of Vice President Mike Pence (Oct. 4), and Subpoena of Acting White
House Chief of Staff Mick Mulvaney (Oct. 4).
---------------------------------------------------------------------------
The federal judiciary's recent ruling that White House
Counsel Don McGahn must appear before the Judiciary Committee
demonstrates that assertions of privileges by the White House
do not foreclose the House of Representatives' ability to hear
testimony from relevant witnesses.\92\ For the price of
legitimacy, the Majority is only required to pay a small amount
of patience and deference to the courts.
---------------------------------------------------------------------------
\92\H. Comm. on the Judiciary v. McGahn, Opinion of the Court, Case
No: 1:19-cv-02379 (D.D.C. Nov. 25, 2019).
---------------------------------------------------------------------------
The Majority's claim that the courts are too slow or
deliberative only demonstrates the Majority's pessimism about
the merits of this case.\93\ The Majority's actions show the
American people disdain for working within the constitutional
framework. Any case filed pursuant to an impeachment inquiry
can be expedited in the courts. In the Nixon litigation, courts
moved relevant cases quickly to and through the Supreme
Court.\94\ The decision to adopt an abbreviated schedule for
the investigation and not to seek to compel testimony is a
strategic choice by the Majority. It is not an appropriate
justification for impeachment.
---------------------------------------------------------------------------
\93\See supra note 49.
\94\Two months elapsed between the ruling of Judge Sirica of the
U.S. District Court for the District of Columbia and the Supreme
Court's final decision.
---------------------------------------------------------------------------
The feebleness of the Obstruction of Congress charge is
rooted not only in the Majority's refusal to petition a court
for enforcement of its subpoenas, but also the Majority's
disregard for the typical process of accommodation that
necessarily requires more time than the Majority has allowed.
The ``gold standard'' of impeachment inquiries was with
President Nixon.\95\ But in that case the ``Obstruction of
Congress'' Article of Impeachment authorized by the Judiciary
Committee (but not voted on by the full House) was built upon a
months-long negotiation with the White House, preceded by a
years-long investigation by both houses of Congress.\96\
---------------------------------------------------------------------------
\95\Turley, supra note 2, at 17.
\96\After requests were made to the White House on February 25,
1974, discussions were entered into to attempt to elicit further
cooperation with the White House. Only after these negotiations failed
was the first subpoena issued on April 11, 1974, authorized on a
bipartisan basis by a vote of 33 to 3. President Nixon proceeded to
release to the Committee and the public edited transcripts of 31 of the
42 subpoenaed recorded conversations. Finding the production
insufficient and incompliant with the subpoena, the Committee
authorized two additional subpoenas on May 15: the first, approved 37
to 1, demanded production of additional recorded telephone
conversations which included President Nixon; the second, approved by
separate but overwhelmingly bipartisan vote, demanded the ``daily
diaries'' of President Nixon's calls for four specified periods. In a
letter to Chairman Rodino on May 22, the President declined to produce
the subject material of the May 15 subpoenas. On May 30, the Committee
authorized a fourth subpoena, by a vote of 37 to 1, which demanded
additional tape recordings and all papers relating to Watergate. By a
vote of 28 to 10, the Committee also responded to President Nixon's
failure to produce subpoenaed material, which was in turn was replied
to by President Nixon on June 9. On June 24, the Committee authorized
additional subpoenas into the ITT antitrust litigation and Kleindienst
confirmation, domestic surveillance, governmental decisions affecting
the dairy industry and campaign contributions, and alleged misuse of
the IRS.
---------------------------------------------------------------------------
B. AN IMPEACHMENT INQUIRY DOES NOT ELEVATE THE HOUSE OF REPRESENTATIVES
ABOVE FUNDAMENTAL PRIVILEGES
The Majority cites the ``sole Power of Impeachment'' five
times in the two Articles of Impeachment. The recitation of
Article I, Section 2, Clause 5 of the Constitution is correct,
but it is utterly circular to assert the President deserves to
be impeached because he defended himself from impeachment. The
Constitution's grant of the impeachment power to the House of
Representatives does not temporarily suspend the rights and
powers of the other branches established by the Constitution.
The initiation of impeachment proceedings does not entitle the
House of Representatives automatic license to intrude into all
corners of the federal government. For additional information
regarding the unfair--and in fact, antagonistic--posture the
Majority took during its investigation, refer to Section III of
the Minority Views of the Intelligence Committee, attached as
Appendix A.
The Majority's Articles also illustrate the risk of
appropriating language from previous Articles of Impeachment
never brought to a vote before the House of Representatives.
Specifically, the Majority appears to have lifted from the
Articles of Impeachment of President Nixon the language
accusing the President of asserting privileges ``without lawful
cause or excuse.''\97\ But that is, of course, the heart of the
argument in opposition to this Article. It is not for the
Legislative Branch to determine unilaterally what is a ``lawful
cause or excuse.'' In fact, ``[i]t is emphatically the duty of
the Judicial Department to say what the law is.''\98\ The
initiation of an impeachment inquiry does not change this
calculus. The advantage an impeachment inquiry bestows to fact
gatherers is the greater legitimacy of the Legislative Branch
over the Executive Branch before a Judicial Branch judge or
magistrate, which the Majority avoided altogether. The House of
Representatives has no power to make laws by itself, and it has
no mandate to determine to what privileges the Executive Branch
is entitled. Though it may draft and pass Articles of
Impeachment cloaking itself in the parlance of the judiciary,
the House of Representatives is no substitute for the Judicial
Branch. The adoption of such terminology further undermines the
seriousness of this Article. In fact, it suggests the Majority
is either unaware of the Nixon precedent, or seeks to deceive
the American public about it.
---------------------------------------------------------------------------
\97\Cf. Third Article Impeaching Richard M. Nixon, President of the
United States. Approved by H. Comm. on the Judiciary (July 30, 1974).
\98\Marbury v. Madison, 5 U.S. 137 (1803).
---------------------------------------------------------------------------
C. THE MAJORITY'S FAILURE TO CONDUCT AN IMPEACHMENT INQUIRY IN
ACCORDANCE WITH PRECEDENT HAS LED TO EX POST FACTO CHARACTERIZATIONS OF
THAT INQUIRY
As detailed in Section II above, many of the Majority's
obstruction allegations are due to the Majority's failure to
conduct its inquiry in accordance with precedent.
Fundamentally, the Majority has offered conflicting accounts of
when the inquiry even began.
On September 24, Speaker of the House Nancy Pelosi
announced the House of Representatives was ``moving forward
with an official impeachment inquiry.''\99\ The media generally
reported that this was the commencement of impeachment
proceedings, and the Majority purported to act pursuant to the
Speaker's pronouncement.\100\
---------------------------------------------------------------------------
\99\See supra note 49 (Remarks by Speaker of the House Nancy
Pelosi).
\100\See, e.g., Nicholas Fandos, Nancy Pelosi Announces Formal
Impeachment Inquiry of Trump, NY Times (Sep. 24, 2019).
---------------------------------------------------------------------------
Nonetheless, over a month later, on October 31, the House
of Representatives voted to authorize the impeachment inquiry
that preceded these Articles, with the passage of H. Res. 660.
This resolution directed the Committees on Financial Services,
Foreign Affairs, the Judiciary, Oversight and Reform, and Ways
and Means ``to continue their ongoing investigations as part of
the existing House of Representatives inquiry into whether
sufficient grounds exist for the House of Representatives to
exercise its Constitutional power to impeach Donald John Trump,
President of the United States.''\101\
---------------------------------------------------------------------------
\101\H. Res. 660, 116th Cong. (2019).
---------------------------------------------------------------------------
Prior to the formal vote on October 31, serious and
legitimate questions were raised as to whether the Executive
Branch was being asked to comply with an impeachment inquiry,
standard legislative oversight, or a novel hybrid of the two.
The White House raised those concerns with the Majority on
October 8, but no steps were taken to accommodate reasonable
concerns about due process and fundamental fairness.\102\
---------------------------------------------------------------------------
\102\Letter from Pat Cipollone, White House Counsel, to the
Honorable Nancy Pelosi, Speaker of the House, et al. (Oct. 8, 2019).
---------------------------------------------------------------------------
The unnecessary confusion caused by the Majority about the
status of its investigation calls into question the legitimacy
of any subpoena issued prior to October 31 claiming to be part
of an impeachment inquiry, because subpoenas issued before that
date were not issued pursuant to a formal impeachment inquiry,
congressional oversight, or any cognizable legislative purpose.
A case addressing the validity of actions taken pursuant to
Speaker Pelosi's edict is pending before the D.C. Circuit
court.\103\
---------------------------------------------------------------------------
\103\See In re: Application of the H. Comm. on the Judiciary,
Department of Justice's Notice of Appeal, Case No: 1:19-gj-00048 BAH
(D.C.C. Oct. 28, 2019).
---------------------------------------------------------------------------
D. ASSERTIONS OF PRIVILEGE BY PREVIOUS ADMINISTRATIONS NEVER MERITED
IMPEACHMENT
The Executive Branch has resisted congressional requests
since the administration of President George Washington.\104\
Resisting and asserting privileges in response to congressional
demands has never formed the basis of impeachment.
---------------------------------------------------------------------------
\104\Washington famously declined to deliver to the House of
Representatives documents recording the negotiations with Great Britain
in what would be memorialized in the Jay Treaty of 1795.
---------------------------------------------------------------------------
For example, President Obama cited executive privilege and
barred essential testimony and documents during the
investigation of ``Fast and Furious,'' a gunwalking operation
in which the government arranged for the illegal sale of
weapons to drug cartels in order to track their movement. The
Obama administration argued that the courts had no authority
over its denial of such witnesses and evidence to Congress. In
Committee on Oversight & Government Reform v. Holder, Judge Amy
Berman Jackson, ruled that ``endorsing the proposition that the
executive may assert an unreviewable right to withhold
materials from the legislature would offend the Constitution
more than undertaking to resolve the specific dispute that has
been presented here. After all, the Constitution contemplates
not only a separation, but a balance, of powers.''\105\ The
position of the Obama Administration was extreme. It was also
widely viewed as an effort to run the clock out on the
investigation. Nevertheless, President Obama had every right to
seek judicial review in the matter.
---------------------------------------------------------------------------
\105\H. Comm. on Oversight & Gov't Reform v. Holder, 979 F. Supp.
2d 1, 3 (D.D.C. 2013).
---------------------------------------------------------------------------
The subpoena campaign against the Trump Executive Branch
began in earnest in September of this year, over a month before
the impeachment inquiry had been authorized by the House of
Representatives. In a letter to Secretary of State Michael
Pompeo, the Committee on Foreign Affairs compelled the
production of certain documents from the Department of
State.\106\ The subpoena issued by the Committee on Oversight
and Reform to the White House on October 4, 2019, ``compel[led]
[the White House] to produce documents set forth in the
accompanying schedule by October 18, 2019.''\107\ Any response
less than immediate and total acquiescence, the letter stated,
``shall constitute evidence of obstruction of the House's
impeachment inquiry and may be used as an adverse inference
against you and the President.''\108\ This refrain--a threat by
any definition--has accompanied every subpoena issued to the
Executive Branch and has needlessly created further tension
between the Executive and Legislative Branches. From the
commencement of this inquiry--whenever that may be definitively
ascertained--the Majority has not been reluctant to voice its
goal of impeaching the President.
---------------------------------------------------------------------------
\106\This subpoena followed requests for documents from the
Department of State made on September 9 and September 23 (prior to any
vote authorizing an impeachment inquiry).
\107\Letter from the Honorable Elijah Cummings, Chairman, H. Comm.
on Oversight & Reform, et al. to Pat Cipollone, White House Counsel
(Oct. 4, 2019).
\108\Id.
---------------------------------------------------------------------------
VI. Conclusion
Before the House of Representatives are two Articles of
Impeachment against the President of the United States, Donald
John Trump. To these Articles, the Minority dissents. The
President has neither abused the power granted to him by the
American people nor obstructed Congress. The Majority has
failed to prove a case for impeachment. In fact, the paltry
record on which the Majority relies is an affront to the
constitutional process of impeachment and will have grave
consequences for future presidents. The Majority's tactics and
behavior--procedurally and substantively--emulate the charade
impeachment of President Andrew Johnson, a president impeached
because the House of Representatives did not agree with his
policies.\109\
---------------------------------------------------------------------------
\109\See generally Association of the Bar of New York, the
Committee on Federal Legislation, The Law of Presidential Impeachment
(1974).
---------------------------------------------------------------------------
If President Nixon's impeachment proceedings are the ``gold
standard'' for presidential impeachment inquiries, these
proceedings, in stark contrast, will go down in history as the
quintessential example of how such proceedings should not be
conducted. The Majority Report and attendant documents will be
viewed only as maps to the lowest depths of partisanship that
no future Congress should follow. The quicker the Majority
Report and the Majority's actions are forgotten, the better. As
House Judiciary Republicans have repeatedly stated,\110\ this
institution should move on to working for the American people
and forego this exercise of overturning 63 million of the votes
cast on November 8, 2016.
\110\See, e.g., Letter from H. Comm. on the Judiciary Republican
Members to the Honorable Jerrold Nadler, Chairman, H. Comm. on the
Judiciary (December 3, 2019).
---------------------------------------------------------------------------
Doug Collins,
Ranking Member, House Committee on the Judiciary.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Executive Summary
On November 8, 2016, nearly 63 million Americans from
around the country chose Donald J. Trump to be the 45th
President of the United States. Now, less than a year before
the next presidential election, 231 House Democrats in
Washington, D.C., are trying to undo the will of the American
people.* As one Democrat admitted, the pursuit of this extreme
course of action is because they want to stop President Trump's
re-election.
---------------------------------------------------------------------------
\*\ H. Res. 660, 116th Cong. (2019) (Roll call vote 604).
Weekends with Alex Witt (MSNBC television broadcast May 5 2019)
(interview with Rep. Al Green).
---------------------------------------------------------------------------
Democrats in the House of Representatives have been working
to impeach President Trump since his election. Democrats
introduced four separate resolutions in 2017 and 2018 seeking
to impeach President Trump. In January 2019, on their first
day in power, House Democrats again introduced articles of
impeachment. That same day, a newly elected Congresswoman
promised to an audience of her supporters, ``we're going to go
in there and we're going to impeach the [expletive
deleted].''** Her comments are not isolated. Speaker Nancy
Pelosi called President Trump ``an impostor'' and said it is
``dangerous''' to allow American voters to evaluate his
performance in 2020.
---------------------------------------------------------------------------
1AH. Res. 705, 115th Cong. (2018); H. Res. 646, 115th Cong.
(2017); H. Res. 621, 115th Cong. (2017); H. Res. 438, 115th Cong.
(2017).
H. Res. 13, 116th Cong. (2019).
**Amy B. Wong, Rep. Rashida Tlaib profanely promised to impeach
Trump. She's not sorry., Wash. Post, Jan. 4, 2019.
Emily Tillett, Nancy Pelosi says Trump's attacks on witnesses
``very significant'' to impeachment probe, CBS News, Nov. 15, 2019;
Dear Colleague Letter from Speaker Nancy Pelosi (Nov. 18, 2019).
---------------------------------------------------------------------------
The Democrats' impeachment inquiry is not the organic
outgrowth of serious misconduct; it is an orchestrated campaign
to upend our political system. The Democrats are trying to
impeach a duly elected President based on the accusations and
assumptions of unelected bureaucrats who disagreed with
President Trump's policy initiatives and processes. They are
trying to impeach President Trump because some unelected
bureaucrats were discomforted by an elected President's
telephone call with Ukrainian President Volodymyr Zelensky.
They are trying to impeach President Trump because some
unelected bureaucrats chafed at an elected President's
``outside the beltway'' approach to diplomacy.
The sum and substance of the Democrats' case for
impeachment is that President Trump abused his authority to
pressure Ukraine to investigate former Vice President Joe
Biden, President Trump's potential political rival, for
President Trump's benefit in the 2020 election. Democrats say
this pressure campaign encompassed leveraging a White House
meeting and the release of U.S. security assistance to force
the Ukrainian President to succumb to President Trump's
political wishes. Democrats say that Mayor Rudy Giuliani, the
President's personal attorney, and a ``shadow'' group of U.S.
officials conspired to benefit the President politically.
The evidence presented does not prove any of these Democrat
allegations, and none of the Democrats' witnesses testified to
having evidence of bribery, extortion, or any high crime or
misdemeanor.
The evidence does not support the accusation that President
Trump pressured President Zelensky to initiate investigations
for the purpose of benefiting the President in the 2020
election. The evidence does not support the accusation that
President Trump covered up the summary of his phone
conversation with President Zelensky. The evidence does not
support the accusation that President Trump obstructed the
Democrats' impeachment inquiry.
At the heart of the matter, the impeachment inquiry
involves the actions of only two people: President Trump and
President Zelensky. The summary of their July 25, 2019,
telephone conversation shows no quid pro quo or indication of
conditionality, threats, or pressure--much less evidence of
bribery or extortion. The summary reflects laughter,
pleasantries, and cordiality. President Zelensky has said
publicly and repeatedly that he felt no pressure. President
Trump has said publicly and repeatedly that he exerted no
pressure.
Even examining evidence beyond the presidential phone call
shows no quid pro quo, bribery, extortion, or abuse of power.
The evidence shows that President Trump holds a deep-seated,
genuine, and reasonable skepticism of Ukraine due to its
history of pervasive corruption. The President has also been
vocal about his skepticism of U.S. foreign aid and the need for
European allies to shoulder more of the financial burden for
regional defense. Senior Ukrainian officials under former
President Petro Poroshenko publicly attacked then-candidate
Trump during the 2016 campaign--including some senior Ukrainian
officials who remained in their positions after President
Zelensky's term began. All of these factors bear on the
President's state of mind and help to explain the President's
actions toward Ukraine and President Zelensky.
Understood in this proper context, the President's initial
hesitation to meet with President Zelensky or to provide U.S.
taxpayer-funded security assistance to Ukraine without
thoughtful review is entirely prudent. Ultimately, President
Zelensky took decisive action demonstrating his commitment to
promoting reform, combatting corruption, and replacing
Poroshenko-era holdovers with new leadership in his
Administration. President Trump then released security
assistance to Ukraine and met with President Zelensky in
September 2019--all without Ukraine taking any action to
investigate President Trump's political rival.
House Democrats allege that Ukraine felt pressure to bend
to the President's political will, but the evidence shows a
different reality. Ukraine felt good about its relationship
with the United States in the early months of the Zelensky
Administration, having had several high-level meetings with
senior U.S. officials between July and September. Although U.S.
security assistance was temporarily paused, the U.S. government
did not convey the pause to the Ukrainians because U.S.
officials believed the pause would get worked out and, if
publicized, may be mischaracterized as a shift in U.S. policy
towards Ukraine. U.S. officials said that the Ukrainian
government in Kyiv never knew the aid was delayed until reading
about it in the U.S. media. Ambassador Kurt Volker, the key
American interlocutor trusted by the Ukrainian government, said
the Ukrainians never raised concerns to him until after the
pause became public in late August.
The Democrats' impeachment narrative ignores Ukraine's
dramatic transformation in its fight against endemic
corruption. President Trump was skeptical of Ukrainian
corruption and his Administration sought proof that newly-
elected President Zelensky was a true reformer. And after
winning a parliamentary majority, the new Zelensky
administration took rapid strides to crack down on corruption.
Several high-level U.S. officials observed firsthand these
anti-corruption achievements in Kyiv, and the security
assistance was released soon afterward.
The Democrats' impeachment narrative also ignores President
Trump's steadfast support for Ukraine in its war against
Russian occupation. Several of the Democrats' witnesses
described how President Trump's policies toward Ukraine to
combat Russian aggression have been substantially stronger than
those of President Obama--then under the stewardship of Vice
President Biden. Where President Obama and Vice President Biden
gave the Ukrainians night-vision goggles and blankets, the
Trump Administration provided the Ukrainians with lethal
defensive assistance, including Javelin anti-tank missiles.
The Democrats nonetheless tell a story of an illicit
pressure campaign run by President Trump through his personal
attorney, Mayor Giuliani, to coerce Ukraine to investigate the
President's political rival by withholding a meeting and
security assistance. There is, however, no direct, firsthand
evidence of any such scheme. The Democrats are alleging guilt
on the basis of hearsay, presumptions, and speculation--all of
which are reflected in the anonymous whistleblower complaint
that sparked this inquiry. The Democrats' narrative is so
dependent on speculation that one Democrat publicly justified
hearsay as ``better'' than direct evidence. Where there are
ambiguous facts, the Democrats interpret them in a light most
unfavorable to the President. In the absence of real evidence,
the Democrats appeal to emotion--evaluating how unelected
bureaucrats felt about the events in question.
---------------------------------------------------------------------------
\\ ``Impeachment Inquiry: Ambassador William B. Taylor and Mr.
George Kent'': Hearing before the H. Perm. Sel. Comm. on Intelligence,
116th Cong. (2019) (statement of Rep. Mike Quigley).
---------------------------------------------------------------------------
The fundamental disagreement apparent in the Democrats'
impeachment inquiry is a difference of world views and a
discomfort with President Trump's policy decisions. To the
extent that some unelected bureaucrats believed President Trump
had established an ``irregular'' foreign policy apparatus, it
was because they were not a part of that apparatus. There is
nothing illicit about three senior U.S. officials--each with
official interests relating to Ukraine--shepherding the U.S.-
Ukraine relationship and reporting their actions to State
Department and NSC leadership. There is nothing inherently
improper with Mayor Giuliani's involvement as well because the
Ukrainians knew that he was a conduit to convince President
Trump that President Zelensky was serious about reform.
There is also nothing wrong with asking serious questions
about the presence of Vice President Biden's son, Hunter Biden,
on the board of directors of Burisma, a corrupt Ukrainian
company, or about Ukraine's attempts to influence the 2016
presidential election. Biden's Burisma has an international
reputation as a corrupt company. As far back as 2015, the Obama
State Department had concerns about Hunter Biden's role on
Burisma's board. Ukrainian anti-corruption activists noted
concerns as well. Publicly available--and irrefutable--evidence
shows how senior Ukrainian government officials sought to
influence the 2016 U.S. presidential election in opposition to
President Trump's candidacy, and that some in the Ukrainian
embassy in Washington worked with a Democrat operative to
achieve that goal. While Democrats reflexively dismiss these
truths as conspiracy theories, the facts are indisputable and
bear heavily on the Democrats' impeachment inquiry.
* * *
In our system of government, power resides with the
American people, who delegate executive power to the President
through an election once every four years. Unelected officials
and career bureaucrats assist in the execution of the laws. The
unelected bureaucracy exists to serve the elected
representatives of the American people. The Democrats'
impeachment narrative flips our system on its head in service
of their political ambitions.
The Democrats' impeachment inquiry, led by House
Intelligence Committee Chairman Adam Schiff, is merely the
outgrowth of their obsession with re-litigating the results of
the 2016 presidential election. Despite their best efforts, the
evidence gathered during the Democrats' partisan and one-sided
impeachment inquiry does not support that President Trump
pressured Ukraine to investigate his political rival to benefit
the President in the 2020 presidential election. The evidence
does not establish any impeachable offense.
But that is not for Democrats' want of trying.
For the first phase of the Democrats' impeachment inquiry,
Chairman Schiff led the inquiry from his Capitol basement
bunker, preventing transparency on the process and
accountability for his actions. Because the fact-finding was
unclassified, the closed-door process was purely for
information control. This arrangement allowed Chairman Schiff--
who had already publicly fabricated evidence and misled
Americans about his interaction with the anonymous
whistleblower--to selectively leak information to paint
misleading public narratives, while simultaneously imposing a
gag rule on Republican members. From his basement bunker,
Chairman Schiff provided no due process protections for the
President and he directed witnesses called by the Democrats not
to answer Republican questions. Chairman Schiff also ignored
Republican requests to secure the testimony of the anonymous
whistleblower, despite promising earlier that the whistleblower
would provide ``unfiltered testimony.''
When the Democrats emerged from the bunker for the public
phase of their impeachment inquiry, Chairman Schiff continued
to deny fundamental fairness and minority rights. Chairman
Schiff interrupted Republican Members and directed witnesses
not to answer Republican questions. Chairman Schiff refused to
allow Republicans to exercise the limited procedural rights
afforded to them. Chairman Schiff rejected witnesses identified
by Republicans who would inject some semblance of fairness and
objectivity. Chairman Schiff denied Republican subpoenas for
testimony and documents, violating the Democrats' own rules to
vote down these subpoenas with no notice to Republicans.
Speaker Pelosi, Chairman Schiff, and House Democrats seek
to impeach President Trump--not because they have proof of a
high crime or misdemeanor, but because they disagreed with the
President's actions and his policies. But in our system of
government, the President is accountable to the American
people. The accountability to the American people comes at the
ballot box, not in House Democrats' star chamber.
Findings
Democrats allege that President Trump pressured Ukraine to
initiate investigations into his political rival, former Vice
President Biden, for the purpose of benefiting the President in
the 2020 U.S. presidential election. The evidence does not
support the Democrats' allegations. Instead, the findings
outlined below are based on the evidence presented and
information available in the public realm.
President Trump has a deep-seated, genuine, and
reasonable skepticism of Ukraine due to its history of
pervasive corruption.
President Trump has a long-held skepticism of U.S.
foreign assistance and believes that Europe should pay its fair
share for mutual defense.
President Trump's concerns about Hunter Biden's
role on Burisma's board are valid. The Obama State Department
noted concerns about Hunter Biden's relationship with Burisma
in 2015 and 2016.
There is indisputable evidence that senior
Ukrainian government officials opposed President Trump's
candidacy in the 2016 election and did so publicly. It has been
publicly reported that a Democratic National Committee
operative worked with Ukrainian officials, including the
Ukrainian Embassy, to dig up dirt on then-candidate Trump.
The evidence does not establish that President
Trump pressured Ukraine to investigate Burisma Holdings, Vice
President Joe Biden, Hunter Biden, or Ukrainian influence in
the 2016 election for the purpose of benefiting him in the 2020
election.
The evidence does not establish that President
Trump withheld a meeting with President Zelensky for the
purpose of pressuring Ukraine to investigate Burisma Holdings,
Vice President Joe Biden, Hunter Biden, or Ukrainian influence
in the 2016 election.
The evidence does not support that President Trump
withheld U.S. security assistance to Ukraine for the purpose of
pressuring Ukraine to investigate Burisma Holdings, Vice
President Joe Biden, Hunter Biden, or Ukrainian influence in
the 2016 election.
The evidence does not support that President Trump
orchestrated a shadow foreign policy apparatus for the purpose
of pressuring Ukraine to investigate Burisma Holdings, Vice
President Joe Biden, Hunter Biden, or Ukrainian influence in
the 2016 election.
The evidence does not support that President Trump
covered up the substance of his telephone conversation with
President Zelensky by restricting access to the call summary.
President Trump's assertion of longstanding claims
of executive privilege is a legitimate response to an unfair,
abusive, and partisan process, and does not constitute
obstruction of a legitimate impeachment inquiry.
CONTENTS
Executive Summary................................................ 203
Findings......................................................... 207
Contents......................................................... 208
Table of Names................................................... 211
I. The evidence does not establish that President Trump pressured the
Ukrainian government to investigate his political rival for the
purpose of benefiting him in the 2020 U.S. presidential election213
A. The evidence does not establish that President Trump
pressured President Zelensky during the July 25 phone
call to investigate the President's political rival
for the purpose of benefiting him in the 2020
election............................................. 215
1. The call summary does not reflect any improper
pressure or conditionality to pressure Ukraine to
investigate President Trump's political rival...... 215
2. President Zelensky has publicly and repeatedly said
he felt no pressure to investigate President
Trump's political rival............................ 218
3. President Trump has publicly and repeatedly said he
did not pressure President Zelensky to investigate
his political rival................................ 220
4. Read-outs of the phone call from both the State
Department and the Ukrainian government did not
reflect that President Trump pressured President
Zelensky to investigate his political rival........ 221
5. The National Security Council leadership did not see
the call as illegal or improper.................... 223
6. The anonymous, secondhand whistleblower complaint
misstated details about the July 25 call, which has
falsely colored the call's public characterization. 224
B. The evidence does not establish that President Trump
withheld a meeting with President Zelensky to
pressure Ukraine to investigate the President's
political rival for the purpose of benefiting him in
the 2020 election.................................... 225
1. Ukraine has a long history of pervasive corruption.. 226
2. President Trump has a deep-seated, genuine, and
reasonable skepticism of Ukraine due to its history
of pervasive corruption............................ 227
3. Senior Ukrainian government officials publicly
attacked President Trump during the 2016 campaign.. 228
4. U.S. foreign policy officials were split on
President Zelensky, a political novice with
untested views on anti-corruption and a close
relationship with a controversial oligarch......... 230
5. President Trump extended an invitation to the White
House to President Zelensky on three occasions
without conditions................................. 232
6. Despite difficulty scheduling a face-to-face
presidential meeting, senior Ukrainian officials
interacted often with senior American officials
between May and September 2019..................... 234
7. The evidence does not establish a linkage between a
White House meeting and Ukrainian investigations
into President Trump's political rival............. 235
8. The evidence does not establish that President Trump
directed Vice President Pence not to attend
President Zelensky's inauguration to pressure
Ukraine to investigate the President's political
rival.............................................. 240
9. President Trump and President Zelensky met during
the United Nations General Assembly in September
2019 without any Ukrainian action to investigate
President Trump's political rival.................. 242
C. The evidence does not establish that President Trump
withheld U.S. security assistance to Ukraine to
pressure Ukraine to investigate the President's
political rival for the purpose of benefiting him in
the 2020 election.................................... 243
1. President Trump has been skeptical about U.S.
taxpayer-funded foreign assistance................. 243
2. President Trump has been clear and consistent in his
view that Europe should pay its fair share for
regional defense................................... 245
3. U.S. foreign aid is often conditioned or paused, and
U.S. security assistance to Ukraine has been paused
before............................................. 247
4. Despite President Trump's skepticism, the Trump
Administration's policies have shown greater
commitment and support to Ukraine than those of the
Obama Administration............................... 249
5. Although security assistance to Ukraine was paused
in July 2019, several witnesses testified that U.S.
security assistance was not linked to any Ukrainian
action on investigations........................... 251
6. President Trump rejected any linkage between U.S.
security assistance and Ukrainian action on
investigations..................................... 256
7. Senior U.S. officials never substantively discussed
the delay in security assistance with Ukrainian
officials before the July 25 call.................. 258
8. The Ukrainian government denied any awareness of a
linkage between U.S. security assistance and
investigations..................................... 261
9. The Ukrainian government considered issuing a public
anti-corruption statement to convey that President
Zelensky was ``serious and different'' from
previous Ukrainian regimes......................... 262
10. President Zelensky never raised a linkage between
security assistance and investigations in his
meetings with senior U.S. government officials..... 267
11. In early September 2019, President Zelensky's
government implemented several anti-corruption
reform measures.................................... 269
12. The security assistance was ultimately disbursed to
Ukraine in September 2019 without any Ukrainian
action to investigate President Trump's political
rival.............................................. 271
D. The evidence does not establish that President Trump
set up a shadow foreign policy apparatus to pressure
Ukraine to investigate the President's political
rival for the purpose of benefiting him in the 2020
election............................................. 272
1. The President has broad Constitutional authority to
conduct the foreign policy of the United States.... 273
2. President Trump was likely skeptical of the
established national security apparatus as a result
of continual leaks and resistance from the federal
bureaucracy........................................ 273
3. The President has the constitutional authority to
remove Ambassador Yovanovitch...................... 275
4. Ambassador Volker, Ambassador Sondland, and
Secretary Perry were all senior U.S. government
officers with official interests in Ukraine policy. 276
5. Referencing Ukrainian corruption, President Trump
told Ambassador Volker, Ambassador Sondland, and
Secretary Perry to talk to Mayor Giuliani.......... 277
6. At the Ukrainian government's request, Ambassador
Volker connected them with Mayor Giuliani to change
his impression about the Zelensky regime........... 279
7. The Ukrainian government understood that Mayor
Giuliani was not speaking on behalf of President
Trump.............................................. 280
8. Ambassador Volker, Ambassador Sondland, and
Secretary Perry kept the National Security Council
and the State Department informed about their
actions............................................ 282
9. Although some in the U.S. foreign policy
establishment bristled, the roles of Ambassador
Volker, Ambassador Sondland, and Secretary Perry
and their interactions with Mayor Giuliani did not
violate the law or harm national security.......... 282
E. President Trump is not wrong to raise questions about
Hunter Biden's role with Burisma or Ukrainian
government officials' efforts to influence the 2016
campaign............................................. 284
1. It is appropriate for Ukraine to investigate
allegations of corruption in its country........... 285
2. There are legitimate concerns surrounding Hunter
Biden's position on the board of Ukrainian energy
company Burisma during his father's term as Vice
President of the United States..................... 286
3. There are legitimate questions about the extent to
which Ukrainian government officials worked to
oppose President Trump's candidacy in the 2016
election........................................... 291
F. The anonymous whistleblower who served as the basis
for the impeachment inquiry has no firsthand
knowledge of events and a bias against President
Trump................................................ 295
1. The anonymous whistleblower acknowledged having no
firsthand knowledge of the events in question...... 295
2. Press reports suggest that the anonymous
whistleblower acknowledged having a professional
relationship with former Vice President Biden...... 296
3. The anonymous whistleblower secretly communicated
with Chairman Schiff or his staff.................. 297
II. The evidence does not establish that President Trump engaged in a
cover-up of his interactions with Ukrainian President Zelensky..300
A. President Trump declassified and released publicly the
summary of his July 25 phone call with President
Zelensky............................................. 300
B. President Trump released a redacted version of the
classified anonymous whistleblower complaint......... 301
C. President Trump released publicly the summary of his
April 21 phone call with President Zelensky.......... 301
D. The Trump Administration has experienced a surge in
sensitive leaks, including details of the President's
communications with foreign leaders.................. 301
E. The evidence does not establish that access to the
July 25 call summary was restricted for inappropriate
reasons.............................................. 302
III.The evidence does not establish that President Trump obstructed
Congress in the Democrats' impeachment inquiry..................304
A. Democrats have abandoned long-standing precedent by
failing to guarantee due process and fundamental
fairness in their impeachment inquiry................ 306
B. Democrats have engaged in an abusive process toward a
pre-determined outcome............................... 307
C. President Trump may raise privileges and defenses in
response to unfair, abusive proceedings.............. 309
D. Although declining to submit to the Democrats' abusive
and unfair process, President Trump has released
information to help the American public understand
the issues........................................... 311
IV. Conclusion......................................................312
TABLE OF NAMES
------------------------------------------------------------------------
------------------------------------------------------------------------
Christopher Anderson................... Foreign Service Officer, U.S.
Department of State
Michael Atkinson....................... Inspector General of the
Intelligence Community (May
2018-present)
Arsen Avakov........................... Ukrainian Minister of Internal
Affairs (February 2014-
present)
Hunter Biden........................... Board Member, Burisma Holdings
(April 2014-October 2019)
Joseph R. Biden........................ Vice President of the United
States (January 2009-January
2017)
Robert Blair........................... Senior Advisor to the White
House Chief of Staff (January
2019-present)
Andriy Bohdan.......................... Head of Ukrainian Office of
Presidential Administration
(May 2019-present)
John Bolton............................ U.S. National Security Advisor
(April 2018-September 2019)
T. Ulrich Brechbuhl.................... Counselor to the U.S. Secretary
of State, U.S. Department of
State (May 2018-present)
Alexandra Chalupa...................... Former contractor, Democratic
National Committee
Valeriy Chaly.......................... Ukrainian Ambassador to the
United States (July 2015-July
2019)
Laura Cooper........................... Deputy Assistant Secretary of
Defense for Russia, Ukraine,
and Eurasia, U.S. Department
of Defense
Catherine Croft........................ Foreign Service Officer, U.S.
Department of State Director
for European Affairs, National
Security Council (July 2017-
July 2018)
Oleksandr Danylyuk..................... Secretary of the Ukrainian
National Security and Defense
Council (May 2019-September
2019)
Michael Duffey......................... Associate Director for National
Security Programs, U.S. Office
of Management and Budget (May
2019-present)
John Eisenberg......................... Legal Advisor, National
Security Council (2017-
present)
Michael Ellis.......................... Deputy Legal Advisor, National
Security Council (March 2017-
present)
Rudy Giuliani.......................... Mayor of New York City (1994-
2001) Personal Attorney to
President Trump (April 2018-
present)
Preston Wells Griffith................. Associate Director for Natural
Resources, Energy & Science,
U.S. Office of Management and
Budget (April 2018-present)
David Hale............................. Under Secretary of State for
Political Affairs, U.S.
Department of State (August
2018-present)
Fiona Hill............................. Senior Director for European
and Russian Affairs, National
Security Council (April 2017-
July 2019)
David Holmes........................... Political Counselor, U.S.
Embassy Kyiv (August 2017-
present)
Keith Kellogg.......................... National Security Advisor to
the Vice President (April 2018-
present)
George Kent............................ Deputy Assistant Secretary of
State, Bureau of European and
Eurasian Affairs, U.S.
Department of State (September
2018-present)
Igor Kolomoisky........................ Co-owner, PrivatBank
Co-owner, 1+1 Media Group
Charles Kupperman...................... U.S. Deputy National Security
Advisor (January 2019-
September 2019)
Serhiy Leshchenko...................... Ukrainian Member of Parliament
(November 2014-July 2019)
Yuriy Lutsenko......................... Prosecutor General of Ukraine
(May 2016-August 2019)
Joseph Maguire......................... Acting U.S. Director of
National Intelligence (August
2019-present)
Brian McCormack........................ Associate Director for Natural
Resources, Energy & Science,
U.S. Office of Management and
Budget (September 2018-
present)
Michael McKinley....................... Senior Advisor to the U.S.
Secretary of State, U.S.
Department of State (November
2018-October 2019)
Tim Morrison........................... Senior Director for European
and Russian Affairs, National
Security Council (July 2019-
November 2019)
Mick Mulvaney.......................... Director of the U.S. Office of
Management and Budget
(February 2017-present) Acting
Chief of Staff to the
President (January 2019-
present)
Nellie Ohr............................. Contractor, Fusion GPS
Mike Pence............................. Vice President of the United
States (January 2017-present)
Rick Perry............................. U.S. Secretary of Energy (March
2017-present)
Mike Pompeo............................ U.S. Secretary of State (April
2018-present)
Petro Poroshenko....................... President of Ukraine (June 2014-
May 2019)
Vadym Prystaiko........................ Minister of Foreign Affairs of
Ukraine (August 2019-present)
Philip Reeker.......................... Acting Assistant Secretary of
State, Bureau of European and
Eurasian Affairs, U.S.
Department of State (March
2019-present)
Mark Sandy............................. Deputy Associate Director for
National Security, U.S. Office
of Management and Budget
(December 2013-present)
Viktor Shokin.......................... Prosecutor General of Ukraine
(February 2015-March 2016)
Oksana Shulyar......................... Deputy Chief of Mission,
Embassy of Ukraine to the U.S.
Gordon Sondland........................ U.S. Ambassador to the European
Union (July 2018-present)
William Taylor......................... U.S. Ambassador to Ukraine
(June 2006-May 2009) U.S.
Charge d'Affaires, a.i., U.S.
Embassy Kyiv (June 2019-
present)
Andrii Telizhenko...................... Political officer, Embassy of
Ukraine to the U.S.
Donald J. Trump........................ President of the United States
(January 2017-present)
Alexander Vindman...................... Director for European Affairs,
National Security Council
(July 2018-present)
Kurt Volker............................ U.S. Special Representative for
Ukraine Negotiations, U.S.
Department of State (July 2017-
September 2019)
Russell Vought......................... Acting Director, U.S. Office of
Management and Budget
Kathryn Wheelbarger.................... Acting Assistant Secretary of
Defense for International
Affairs, U.S. Department of
Defense (November 2018-
present)
Jennifer Williams...................... Special Adviser for Europe and
Russia, Office of the Vice
President
Viktor Yanukovych...................... President of Ukraine (February
2010-February 2014)
Arseniy Yatsenyuk...................... Prime Minister of Ukraine
(February 2014-April 2016)
Andrey Yermak.......................... Adviser to President of Ukraine
Volodymyr Zelensky
Marie Yovanovitch...................... U.S. Ambassador to Ukraine
(August 2016-May 2019)
Volodymyr Zelensky***.................. President of Ukraine (May 2019-
present)
Mykola Zlochevsky...................... Co-founder, Burisma Holdings
(2002-present) Ukrainian
Minister of Ecology and
Natural Resources (July 2010-
April 2012)
------------------------------------------------------------------------
Sec. Sec. Consistent with the U.S. Board on Geographic Names, this
report spells the Ukrainian capital as ``Kyiv'' throughout.
***Although some sources use alternate spellings of the Ukrainian
President's surname, this report uses the spelling ``Zelensky'' for
consistency throughout.
I. The Evidence Does Not Establish That President Trump Pressured the
Ukrainian Government To Investigate His Political Rival for the Purpose
of Benefiting Him in the 2020 U.S. Presidential Election
Democrats have alleged that President Trump exerted
pressure on Ukrainian President Zelensky to force the Ukrainian
government to manufacture ``dirt'' or otherwise investigate a
potential Democrat candidate in the 2020 U.S. presidential
election for President Trump's political benefit.\1\ Democrats
allege that President Trump sought to use the possibility of a
White House meeting with President Zelensky and release of U.S.
security assistance to Ukraine as leverage to force Ukraine to
help the President politically. Democrats allege that President
Trump orchestrated a ``shadow'' foreign policy apparatus that
worked to accomplish the President's political goals.
---------------------------------------------------------------------------
\1\``Whistleblower Disclosure'': Hearing of the H. Perm. Sel. Comm.
on Intelligence, 116th Cong. (2019) (statement of Rep. Adam Schiff,
Chairman); Rep. Adam Schiff (@RepAdamSchiff), Twitter (Oct. 12, 2019,
2:53 p.m.), https://twitter.com/repadamschiff/status/
1183138629130035200; Lieu accuses Trump of asking Ukraine to
``manufacture dirt'' on Biden, The Hill, Sept. 25, 2019.
---------------------------------------------------------------------------
The evidence obtained in the Democrats' impeachment
inquiry, however, does not support these Democrat allegations.
In fact, witnesses called by the Democrats denied having any
awareness of criminal activity or an impeachable offense. Rep.
John Ratcliffe asked Ambassador Bill Taylor and Deputy
Assistant Secretary George Kent whether they were ``assert[ing]
there was an impeachable offense in [the July 25] call.''\2\
Neither said there was.\3\ Rep. Chris Stewart asked Ambassador
Marie Yovanovitch if she had any information about President
Trump's involvement in criminal activity.\4\ Ambassador
Yovanovitch said no.\5\ Rep. Ratcliffe asked National Security
Council (NSC) staff member LTC Alexander Vindman and Office of
the Vice President special adviser Jennifer Williams if they
have labeled the President's conduct as ``bribery.''\6\ Both
said no.\7\ Rep. Elise Stefanik asked Ambassador Kurt Volker,
the U.S. special envoy for Ukraine negotiations, and Tim
Morrison, the NSC senior director for Europe, whether they saw
any bribery, extortion, or quid pro quo.\8\ Both said no.\9\
---------------------------------------------------------------------------
\2\``Impeachment Inquiry: Ambassador William B. Taylor and Mr.
George Kent'': Hearing before the H. Perm. Sel. Comm. on Intelligence,
116th Cong. (2019).
\3\Id.
\4\``Impeachment Inquiry: Ambassador Marie Yovanovitch'': Hearing
before the H. Perm. Sel. Comm. on Intelligence, 116th Cong. (2019).
\5\Id.
\6\``Impeachment Inquiry: LTC Alexander Vindman and Ms. Jennifer
Williams'': Hearing before the H. Perm. Sel. Comm. on Intelligence,
116th Cong. (2019). This report abbreviates military titles consistent
with the U.S. Government Printing Office style manual. See U.S. Gov't
Printing Off., Style Manual 227 (2016).
\7\Id.
\8\``Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison'': Hearing before the H. Perm. Sel. Comm. on Intelligence,
116th Cong. (2019).
\9\Id.
---------------------------------------------------------------------------
Contrary to Democrat assertions, the evidence does not show
that President Trump pressured President Zelensky to
investigate his political rival during the July 25 phone call.
The best evidence of the conversation--the call summary--shows
no evidence of conditionality, threats, or pressure. President
Zelensky and President Trump have both said there was no
pressure, the initial read-out from the State Department and
the Ukrainian government reflected no concerns, and the NSC
leadership saw no illegality or impropriety with the call.
The evidence does not show that President Trump withheld a
meeting with President Zelensky to pressure Ukraine to
investigate his political rival. The evidence shows that
President Trump has a long-standing, deep-seated skepticism of
Ukraine due to its history of pervasive corruption. President
Zelensky was a political newcomer with untested views on anti-
corruption and a close association with a Ukrainian oligarch.
Even so, President Trump agreed to invite President Zelensky to
the White House, and in the interim, Ukrainian officials had
several high-level meetings with U.S. officials. President
Trump and President Zelensky met in September 2019 without
Ukraine ever taking any action on investigating President
Trump's political rival.
In addition, the evidence does not show that President
Trump withheld U.S. security assistance to Ukraine to pressure
Ukraine to investigate his political rival. The evidence shows
that President Trump has a skepticism of U.S. taxpayer-funded
foreign aid and believes Europe should carry more financial
burden for its regional defense. Although U.S. security
assistance was paused temporarily, Democrats' witnesses denied
there being any direct link to investigations of the
President's political rival. Both the Ukrainian government and
President Trump separately denied any linkage. U.S. officials
did not tell the Ukrainian officials about the delay because
they thought it would get worked out. Ambassador Volker, a
senior U.S. diplomat and primary interlocutor with senior
Ukrainian government officials, testified that the Ukrainians
did not raise concerns to him about a delay in aid until after
the pause was made public in late August 2019. The U.S.
security assistance to Ukraine was ultimately disbursed without
Ukraine taking any action to investigate President Trump's
political rival.
The evidence does not show that President Trump established
a ``shadow'' foreign policy apparatus to pressure Ukraine to
investigate his political rival. The President has broad
Constitutional authority over U.S. foreign policy, and
President Trump is likely suspicious of the national security
apparatus due to continual leaks of sensitive information and
the resistance within the federal bureaucracy. The three U.S.
officials who Democrats accuse of conducting an ``irregular''
foreign policy channel had legitimate responsibilities for
Ukraine policy. They kept the State Department and NSC aware of
their actions. To the extent Mayor Giuliani was involved, he
was in communication with these officials and the Ukrainians
did not see him as speaking on behalf of the President.
Although Democrats reflexively criticize President Trump
for promoting ``conspiracy theories''' about Hunter Biden's
role on Burisma's board or Ukrainian attempts to influence the
2016 election, evidence suggests there are legitimate questions
about both issues. The Democrats' witnesses testified that it
would be appropriate for Ukraine to investigate allegations of
corruption in Ukraine.
Finally, there are fundamental flaws with the anonymous
whistleblower complaint that initiated the Democrats'
impeachment inquiry. The complaint contained inaccurate and
misleading information that prejudiced the public understanding
of President Trump's conversation with President Zelensky. The
whistleblower had no firsthand knowledge of the events in
question and a bias against President Trump. The whistleblower
communicated with Chairman Schiff or his staff prior to
submitting the whistleblower complaint to the Inspector General
of the Intelligence Community. Several witnesses contradicted
assertions made by the anonymous whistleblower. The
whistleblower's complaint did not accurately reflect the tone
and substance of the phone call, which is unsurprising given
the whistleblower's reliance on secondhand information that had
likely already been colored by biases of the original sources.
A. THE EVIDENCE DOES NOT ESTABLISH THAT PRESIDENT TRUMP PRESSURED
PRESIDENT ZELENSKY DURING THE JULY 25 PHONE CALL TO INVESTIGATE THE
PRESIDENT'S POLITICAL RIVAL FOR THE PURPOSE OF BENEFITING HIM IN THE
2020 ELECTION
On July 25, 2019, President Trump and President Zelensky
spoke by telephone.\10\ This conversation would later serve as
the basis for the anonymous whistleblower complaint and the
spark for the Democrats' impeachment inquiry. Contrary to
allegations that President Trump pressured Ukraine to
investigate a domestic political rival during this call,\11\
the evidence shows that President Trump did not pressure
President Zelensky to investigate his political rival.
---------------------------------------------------------------------------
\10\President Trump had spoken with then-President-elect Zelensky
on April 21, 2019, to congratulate him on his election. See The White
House, Memorandum of Telephone Conversation (Apr. 21, 2019). This
conversation too contained no indication of pressure, intimidation or
threats. See id.
\11\See, e.g., Josh Dawsey et al., How Trump and Giuliani pressured
Ukraine to investigate the President's rivals, Wash. Post, (Sept. 20,
2019).
---------------------------------------------------------------------------
The call summary and initial read-outs of the conversation
reflect no indication of conditionality, coercion, or
intimidation--elements that would have been present if
President Trump had used his authority to pressure President
Zelensky to investigate his political rival. Importantly, both
President Zelensky and President Trump have said publicly there
was no pressure or anything inappropriate about their
conversation. The anonymous whistleblower complaint--which
sparked the impeachment inquiry--contains sensational rhetoric
about the July 25 phone conservation that has prejudged
subsequent views of the call.
1. The call summary does not reflect any improper pressure or
conditionality to pressure Ukraine to investigate President
Trump's political rival
The best evidence of the telephone conversation between
President Trump and President Zelensky is the contemporaneous
summary prepared by the White House Situation Room. The
Democrats' witnesses described how National Security Council
(NSC) policy staffers and White House Situation Room duty
officers typically listen in on presidential conversations with
foreign leaders to transcribe the contents of the
conversation.\12\ This process occurred for President Trump's
July 25 phone call with President Zelensky.
---------------------------------------------------------------------------
\12\See, e.g., Deposition of Dr. Fiona Hill, in Wash., D.C., at
297-300 (Oct. 14, 2019) [hereinafter ``Hill deposition'']. Although
some have alleged that the presence of ellipses in the call summary
connotes missing text, witnesses testified that call summaries often
use ellipses to denote unfinished thoughts and not to ``read too much''
into the use of ellipses. See, e.g., id. at 307. LTC Vindman testified
in his closed-door deposition that any editing decisions or missing
words were not done maliciously. See Deposition of LTC Alexander
Vindman, in Wash., D.C., at 253 (Oct. 29, 2019) [hereinafter ``Vindman
deposition'']. In his public testimony, LTC Vindman explained that
although the summary did not mention the word ``Burisma,'' it was ``not
a significant omission.'' Impeachment Inquiry: LTC Alexander Vindman
and Ms. Jennifer Williams, supra note 6. Morrison testified in his
deposition that he believed to call memorandum was an ``accurate and
complete'' reflection of the substance of the call. Deposition of
Timothy Morrison, in Wash., D.C., at 60 (Oct. 31, 2019) [hereinafter
``Morrison deposition'']
---------------------------------------------------------------------------
As transcribed, the call summary denotes laughter,
pleasantries, and compliments exchanged between President Trump
and President Zelensky. The summary does not evince any
threats, coercion, intimidation, or indication of
conditionality. Democrats even acknowledged that the call
summary reflected no quid pro quo.\13\ The summary bears
absolutely no resemblance to House Intelligence Committee
Chairman Adam Schiff's self-described ``parody'' interpretation
of the call, which the Chairman performed at a public hearing
on September 26.\14\
---------------------------------------------------------------------------
\13\See, e.g., MSNBC Live with Craig Melvin (MSNBC television
broadcast Sept. 25, 2019) (interview with Rep. Ro Khanna) (saying
evidence of a quid pro quo on the call summary is ``irrelevant'').
\14\Whistleblower Disclosure, supra note 1.
---------------------------------------------------------------------------
The summary of the July 25 phone call begins by President
Trump congratulating President Zelensky on a ``great victory,''
a ``terrific job,'' and a ``fantastic achievement.''\15\
President Zelensky reciprocated by complimenting President
Trump, saying:
---------------------------------------------------------------------------
\15\The White House, Memorandum of Telephone Conversation 1 (July
25, 2019).
Well, yes, to tell you the truth, we are trying to
work hard because we wanted to drain the swamp here in
our country. We brought in many, many new people. Not
the old politicians, not the typical politicians,
because we want to have a new format and a new type of
government. You are a great teacher for us and in
that.\16\
---------------------------------------------------------------------------
\16\Id. at 2.
President Trump expressed his concern that European
countries were not providing their fair share in terms of
assistance to Ukraine\17\--a topic about which President Trump
has been vocal.\18\ President Zelensky responded that President
Trump was ``absolutely right'' and that he had expressed
concerns to German Chancellor Angela Merkel and French
President Emmanuel Macron.\19\ President Zelensky thanked
President Trump for U.S. military support and said Ukraine was
``almost ready to buy more Javelins from the United States for
defense purposes.''\20\
---------------------------------------------------------------------------
\17\Id.
\18\See infra section I.C.2.
\19\Memorandum of Telephone Conversation, supra note 15, at 2.
\20\Id.
---------------------------------------------------------------------------
President Trump then transitioned to discuss the allegation
that some Ukrainian officials sought to influence the 2016 U.S.
presidential election. Although Democrats have seized on the
President's phrasing--``I would like you to do us a favor
though''\21\-- to accuse the President of pressuring President
Zelensky to target his 2020 political rival for his political
benefit,\22\ they omit the remainder of his sentence. The full
sentence shows that President Trump was not asking President
Zelensky to investigate his political rival, but rather asking
him to assist in ``get[ting] to the bottom'' of potential
Ukrainian involvement in the 2016 election.\23\ This reading is
supported by President Trump's subsequent reference to Special
Counsel Robert Mueller, who had testified the day before about
his findings,\24\ and to Attorney General William Barr, who had
initiated an official inquiry into the origins of the U.S.
government's 2016 Russia investigation.\25\
---------------------------------------------------------------------------
\21\Id. at 3.
\22\See, e.g., Whistleblower Disclosure, supra note 1 (statement of
Rep. Adam Schiff, Chairman).
\23\Memorandum of Telephone Conversation, supra note 15, at 3. The
President's reference to ``Crowdstrike'' during the conversation refers
to a cybersecurity firm that examined the Democratic National Committee
server following intrusion by the Russian government in 2016.
\24\``Oversight of the Report on the Investigation into Russian
Interference in the 2016 Presidential Election: Former Special Counsel
Robert S. Mueller, III'': Hearing before the H. Comm. on the Judiciary,
116th Cong. (2019).
\25\See, e.g., Adam Goldman et al., Barr assigns U.S. Attorney in
Connecticut to review origins of Russia inquiry, N.Y. Times, May 13,
2019.
---------------------------------------------------------------------------
President Zelensky did not express any concern that
President Trump had raised the allegations about Ukrainian
influence in the 2016 election. In fact, President Zelensky
responded by reiterating his commitment to cooperation between
Ukraine and the United States and mentioning that he had
recalled the Ukrainian Ambassador to the United States, Valeriy
Chaly.\26\ Ambassador Chaly had authored an op-ed in The Hill
during the height of the presidential campaign in 2016
criticizing a statement that President Trump had made by
Crimea.\27\ President Zelensky said he planned to surround
himself with ``the best and most experienced people'' and
pledged that ``as the President of Ukraine that all the
investigations will be done openly and candidly.''\28\
President Zelensky also raised former New York Mayor Rudy
Giuliani, saying ``we are hoping very much that Mr. Giuliani
will be able to travel to Ukraine and we will meet once he
comes to Ukraine.''\29\
---------------------------------------------------------------------------
\26\Memorandum of Telephone Conversation, supra note 15, at 3.
\27\Valeriy Chaly, Ukraine's ambassador: Trump's comments send
wrong message to world, The Hill, Aug. 4, 2016.
\28\Memorandum of Telephone Conversation, supra note 15, at 3.
\29\Id.
---------------------------------------------------------------------------
The call summary shows that the discussion then intertwined
several different topics. In response to President Zelensky's
statement about new personnel, President Trump and President
Zelensky discussed the position of prosecutor general.\30\
President Zelensky did not express any discomfort discussing
the prosecutor general position. He said the new prosecutor
general would be ``100% my person, my candidate'' and said the
prosecutor would look into the matters raised by President
Trump to ``mak[e] sure to restore the honesty'' of the
investigation.\31\ President Zelensky later said ``we will be
very serious about the case and will work on the
investigation.''\32\
---------------------------------------------------------------------------
\30\Id. at 3-4.
\31\Id. at 4.
\32\Id. at 5.
---------------------------------------------------------------------------
In response to President Zelensky's reference to Mayor
Giuliani, President Trump said Mayor Giuliani is ``a highly
respected man'' who ``very much knows what's happening and he
is a very capable guy.''\33\ President Trump said that he would
ask Mayor Giuliani to call President Zelensky, along with
Attorney General Barr, to ``get to the bottom of it.''\34\
President Zelensky did not express any concern about Mayor
Giuliani's engagement in fact, President Zelensky, not
President Trump, first referenced Mayor Giuliani in the
conversation.
---------------------------------------------------------------------------
\33\ Id. at 3-4.
\34\ Id. at 4.
---------------------------------------------------------------------------
President Trump then raised former U.S. Ambassador to
Ukraine, Marie Yovanovitch, saying that she was ``bad news'''
and ``the people she was dealing with in the Ukraine were bad
news.''\35\ President Zelensky did not express any hesitancy in
discussing the ambassador. Contrary to Democrats' assertion
that he felt obligated to agree with President Trump's
assessment, President Zelensky stated his independent negative
assessment of Ambassador Yovanovitch:
---------------------------------------------------------------------------
\35\Id.
Her attitude toward me was far from the best as she
admired the previous President and she was on his side.
She would not accept me as a new President well
enough.\36\
---------------------------------------------------------------------------
\36\Id.
President Trump also raised in passing--using the
transition phrase ``the other thing''--the topic of Vice
President Joe Biden's son, Hunter Biden, referring to his
position on the board of a Ukrainian energy company, Burisma,
known for its corruption.\37\ President Trump said ``a lot of
people want to find out about that so whatever you can do with
the Attorney General would be great.''\38\ President Zelensky
did not reply to President Trump's reference to the Bidens, and
the two did not discuss the topic substantively.
---------------------------------------------------------------------------
\37\Id.
\38\Id.
---------------------------------------------------------------------------
The call concluded with President Zelensky raising energy
cooperation between Ukraine and the United States and with
President Trump reiterating his invitation for President
Zelensky to visit the White House.\39\
---------------------------------------------------------------------------
\39\Id. at 5.
---------------------------------------------------------------------------
Although some later expressed concern about the call, the
call summary--the best evidence of the conversation--shows no
indication of conflict, intimidation, or pressure. President
Trump never conditioned a White House meeting on any action by
President Zelensky. President Trump never mentioned U.S.
security assistance to Ukraine. President Zelensky never
verbalized any disagreement, hostility, or concern about any
facet of the U.S.-Ukrainian relationship.
2. President Zelensky has publicly and repeatedly said he felt no
pressure to investigate President Trump's political rival
Since President Trump declassified and publicly released
the content of his July 25 phone conversation with President
Zelensky, President Zelensky and other senior Ukrainian
officials have publicly and repeatedly asserted that President
Zelensky felt no pressure to investigate President Trump's
political rival. President Zelensky has variously asserted,
``nobody pushed . . . me,'' ``I was never pressured,'' and
there was no ``blackmail.''
On September 25, President Zelensky and President Trump met
face-to-face for a bilateral meeting on the margins of the 74th
United Nations (U.N.) General Assembly in New York. The
presidents jointly participated in a media availability, during
which President Zelensky asserted that he felt no pressure.\40\
President Zelensky said then:
---------------------------------------------------------------------------
\40\Press Release, The White House, Remarks by President Trump and
President Zelensky of Ukraine Before Bilateral Meeting (Sept. 25,
2019), available at https://www.whitehouse.gov/briefings-statements/
remarks-president-trump-president-zelensky-ukraine-bilateral-meeting-
new-york-ny/.
Q. President Zelensky, have you felt any pressure
from President Trump to investigate Joe Biden and
Hunter Biden?
A. I think you read everything. So I think you read
text. I'm sorry, but I don't want to be involved to
democratic, open elections--elections of USA. No, you
heard that we had, I think, good phone call. It was
normal. We spoke about many things. And I--so I think,
and you read it, that nobody pushed--pushed me.\41\
---------------------------------------------------------------------------
\41\ Id. (emphasis added).
President Zelensky again reiterated that he was not
pressured to investigate President Trump's political rival
during an interview with a Kyodo News, a Japanese media outlet,
published on October 6. Kyodo News quoted President Zelensky as
saying, ``I was never pressured and there were no conditions
being imposed'' on a White House meeting or U.S. security
assistance to Ukraine.\42\ President Zelensky denied ``reports
by U.S. media that [President] Trump's requests were
conditions'' for a White House meeting or U.S. security
assistance.\43\
---------------------------------------------------------------------------
\42\ Ukraine president denies being pushed by Trump to investigate
Biden, Kyodo News, Oct. 6, 2019.
\43\ Id.
---------------------------------------------------------------------------
On October 10, during an all-day media availability in
Kyiv, President Zelensky again emphasized that he felt no
pressure to investigate President Trump's political rival.
President Zelensky said there was ``no blackmail'' during the
conversation, explaining: ``This is not corruption. It was just
a call.''\44\
---------------------------------------------------------------------------
\44\Ukraine's president says `no blackmail' in Trump call, BBC,
Oct. 10, 2019.
---------------------------------------------------------------------------
In addition, on September 21--before President Trump had
even declassified and released the call summary--Ukrainian
Foreign Minister Vadym Prystaiko denied that President Trump
had pressured President Zelensky to investigate President
Trump's political rival.\45\ Foreign Minister Prystaiko said:
---------------------------------------------------------------------------
\45\``Trump did not pressure Zelensky, Ukraine is independent
state''--Foreign Minister Prystaiko, Hromadske, Sept. 21, 2019.
I know what the conversation was about and I think
there was no pressure. There was talk, conversations
are different, leaders have the right to discuss any
problems that exist. This conversation was long,
friendly, and it touched on a lot of questions,
including those requiring serious answers.\46\
---------------------------------------------------------------------------
\46\Id. (emphasis added).
Similarly, Ambassador Bill Taylor explained that he had
dinner with Oleksandr Danylyuk, then-Secretary of the National
Security and Defense Council, the night of the phone
conversation between President Trump and President
Zelensky.\47\ He explained that Danylyuk said that the
Ukrainian government ``seemed to think that the call went fine,
the call went well. He wasn't disturbed by anything. He wasn't
disturbed that he told us about the phone call.''\48\
---------------------------------------------------------------------------
\47\Deposition of Ambassador William B. Taylor, in Wash., D.C., at
80 (Oct. 22, 2019).
\48\Id.
---------------------------------------------------------------------------
President Zelensky's repeated denials that President Trump
pressured him to investigate domestic political rival--
corroborated by Foreign Minister Prystaiko's similar denial--
carry significant weight.
3. President Trump has publicly and repeatedly said he did not pressure
President Zelensky to investigate his political rival
Like President Zelensky, President Trump has repeatedly and
publicly stated that he did not pressure President Zelensky to
investigate his political rival. During the September 25
bilateral meeting with President Zelensky, President Trump said
to the assembled members of the media: ``There was no pressure.
And you know there was--and, by the way, you know there was no
pressure. All you have to do it see it, what went on the
call.''\49\ When asked whether he wanted President Zelensky to
``do more'' to investigate Vice President Biden, President
Trump responded: ``No. I want him to do whatever he can. This
was not his fault; he wasn't there. He's just been here
recently. But whatever he can do in terms of corruption,
because the corruption is massive.''\50\
---------------------------------------------------------------------------
\49\Remarks by President Trump and President Zelensky of Ukraine
Before Bilateral Meeting, supra note 40.
\50\Id.
---------------------------------------------------------------------------
Despite the President's statements, some allege that an
overheard conversation the day after President Trump's
conversation with President Zelensky shows that the President
sought to pressure President Zelensky. On July 26, following a
meeting with President Zelensky, Ambassador Gordon Sondland,
the U.S. Ambassador to the European Union, telephoned President
Trump from Kyiv.\51\ According to a subsequent account of David
Holmes, a Political Counselor at U.S. Embassy Kyiv, Ambassador
Sondland told the President that he was in Ukraine and stated
President Zelensky ``loves your ass.''\52\ Holmes recounted
that President Trump asked Ambassador Sondland, ``So he's going
to do the investigation?''\53\ Ambassador Sondland allegedly
replied, ``He's going to do it.''\54\
---------------------------------------------------------------------------
\51\Deposition of David Holmes, in Wash., D.C., at 23-25 (Nov. 15,
2019) [hereinafter ``Holmes deposition'']. Ambassador Sondland did not
mention this phone call in his deposition. See generally Deposition of
Ambassador Gordon D. Sondland, in Wash., D.C. (Oct. 17, 2019)
[hereinafter ``Sondland deposition''].
\52\Holmes deposition, supra note 51, at 24
\53\Id.
\54\Id.
---------------------------------------------------------------------------
This conversation is not definitive evidence that President
Trump pressured President Zelensky to investigate his political
rival. First, according to Ambassador Sondland, it was not
clear that President Trump meant an investigation into the
Bidens. In his closed-door deposition, Ambassador Sondland
testified that he only had ``five or six'' conversations with
the President and did not mention this particular
conversation.\55\ In his public testimony, however, Ambassador
Sondland suddenly recalled the conversation, saying that it
``did not strike me as significant at the time'' and that the
primary purpose of the call was to discuss rapper A$AP Rocky,
who was imprisoned in Sweden.\56\ Ambassador Sondland testified
that he has no recollection of discussing Vice President Biden
or his son, Hunter Biden, with President Trump.\57\
---------------------------------------------------------------------------
\55\ Sondland deposition, supra note 51, at 56.
\56\ ``Impeachment Inquiry: Ambassador Gordon Sondland'': Hearing
before the H. Perm. Sel. Comm. on Intelligence, 116th Cong. (2019).
\57\ Id.
---------------------------------------------------------------------------
Second, Holmes testified that although he disclosed
Ambassador Sondland's conversation with the President to
multiple friends on multiple occasions, he did not feel
compelled to disclose it to the State Department or Congress
until weeks into the impeachment inquiry.\58\ Although Holmes
testified that he told his boss, Ambassador Taylor, about the
call on August 6 and received a ``knowing'' response, and that
he referred to the call often in staff meetings, Ambassador
Taylor testified publicly that he was ``not aware of this
information'' at the time of his October 22 deposition, and
that he only became aware of the Holmes account on November 8,
2019, two days after his hearing was publicly announced, at
which point he referred it (for the first time) to the Legal
Adviser for the Department of State.\59\
---------------------------------------------------------------------------
\58\ Holmes deposition, supra note 51, at 31, 158-62.
\59\ Id. at 81-82, 121-22, 167; see generally Taylor deposition,
supra note 47; Impeachment Inquiry: Ambassador William B. Taylor and
Mr. George Kent, supra note 2.
---------------------------------------------------------------------------
4. Read-outs of the phone call from both the State Department and the
Ukrainian government did not reflect that President Trump
pressured President Zelensky to investigate his political rival
Immediately following the telephone conversation between
President Trump and President Zelensky, senior U.S. and
Ukrainian government officials provided read-outs of the
conversation. According to witness testimony, none of these
read-outs indicated that the conversation between the
presidents was substantively concerning.
Ambassador Volker testified that he received informal read-
outs of the call from both his State Department assistant and
his high-level Ukrainian contacts.\60\ These read-outs did not
indicate any concern with the phone call. Ambassador Volker
explained:
---------------------------------------------------------------------------
\60\ Transcribed interview of Ambassador Kurt Volker, in Wash.,
D.C., at 102-03 (Oct. 3, 2019) [hereinafter ``Volker transcribed
interview'']. Ambassador Volker's assistant at the time, Catherine
Croft, testified that she only received a read-out of the phone call
was based on what President Zelensky told Ambassador Volker, Ambassador
Taylor, and Ambassador Sondland on July 26. Deposition of Catherine
Croft, in Wash., D.C., at 16 (Oct. 30, 2019) [hereinafter ``Croft
deposition''].
A. I got an oral readout from the staffer who works
for me in the State Department and our charge, as well
as from Andrey Yermak, who had been on the call in
Ukraine himself.
Q. So you got two readouts?
A. Yeah.
Q. One from each side?
A. Correct.
Q. What was the top line message you got from the
State Department?
A. Well, they were the same, actually, which is
interesting. But the message was congratulations from
the President to President Zelensky; President Zelensky
reiterating that he is committed to fighting corruption
and reform in the Ukraine; and President Trump
reiterating an invitation for President Zelensky to
visit him at the White House. That was it.\61\
---------------------------------------------------------------------------
\61\ Volker transcribed interview, supra note 60, at 102-03.
In fact, in his public testimony, Ambassador Volker
testified that President Zelensky was ``very upbeat about the
fact of the call.''\62\
---------------------------------------------------------------------------
\62\ Impeachment Inquiry: Ambassador Kurt Volker and Timothy
Morrison, supra note 8.
---------------------------------------------------------------------------
Ambassador Sondland received a summary of the phone call
from his staff.\63\ Ambassador Sondland testified that he was
pleased to learn that it was a ``good call.''\64\ George Kent,
the Deputy Assistant Secretary of State covering Ukraine,
testified that he received a read-out of the call from NSC
staffer LTC Alexander Vindman.\65\ According to Kent, although
LTC Vindman said the ``atmospherics''' of the conversation was
cooler and reserved, LTC Vindman did not mention Vice President
Biden's name or anything relating to 2016.\66\
---------------------------------------------------------------------------
\63\ Sondland deposition, supra note 51, at 116.
\64\ Id.
\65\ Deposition of George Kent, in Wash., D.C., at 163 (Oct. 15,
2019) [hereinafter ``Kent deposition''].
\66\ Id. at 163-65
---------------------------------------------------------------------------
In addition, the Office of the President of Ukraine issued
an official statement following the phone call.\67\ The
official statement also signaled no concern about the call or
any indication of coercion, intimidation, or pressure from
President Trump. The statement read in full:
---------------------------------------------------------------------------
\67\ Press Release, Office of the President of Ukraine, Volodymyr
Zelenskyy had a phone conversation with President of the United States
(July 25, 2019), available at https://www.president.gov.ua/en/news/
volodimir-zelenskij-proviv-telefonnu-rozmovu-z-prezidentom-s-56617.
President of Ukraine Volodymyr Zelensky had a phone
conversation with President of the United States Donald
Trump. President of the United States congratulated
Ukraine on successful holding free and democratic
parliamentary elections as well as Volodymyr Zelensky
with victory the Servant of the People Party.
Donald Trump is convinced that the new Ukrainian
government will be able to quickly improve image of
Ukraine, complete investigation of corruption cases,
which inhibited the interaction between Ukraine and the
USA.
He also confirmed continued support of the
sovereignty and territorial integrity of Ukraine by the
United States and the readiness of the American side to
fully contribute to the implementation of a Large-Scale
Reform Program in our country.
Volodymyr Zelensky thanked Donald Trump for US
leadership in preserving and strengthening the
sanctions pressure on Russia.
The Presidents agreed to discuss practical issues of
Ukrainian-American cooperation during the visit of
Volodymyr Zelensky to the United States.\68\
---------------------------------------------------------------------------
\68\ Id.
The initial read-outs of the July 25 telephone conversation
between President Trump and President Zelensky provide
compelling evidence that the key message conveyed during the
conversation was about fighting corruption in Ukraine--and not
about digging up dirt on President Trump's political rival for
the President's political benefit.
5. The National Security Council leadership did not see the call as
illegal or improper
The evidence shows that the NSC leadership did not see the
telephone conversation between President Trump and President
Zelensky as improper. Timothy Morrison, who served as the
Deputy Assistant to the President for National Security,
listened in on the conversation.\69\ He testified that he was
concerned information from the call could leak, but he was not
concerned that anything discussed on the call was illegal or
improper.\70\
---------------------------------------------------------------------------
\69\ Morrison deposition, supra note 12, at 15.
\70\ Id. at 16, 60-61.
---------------------------------------------------------------------------
LTG Keith Kellogg, Vice President Pence's National Security
Advisor, also listened in on the July 25 telephone
conversation.\71\ LTG Kellogg stated that like Morrison: ``I
heard nothing wrong or improper on the call. I had and have no
concerns.''\72\ LTG Kellogg's subordinate, Jennifer Williams,
testified that although she found the call to be ``unusual,''
she did not raise concerns to LTG Kellogg.\73\ LTG Kellogg
similarly noted that Williams never raised concerns to him.\74\
---------------------------------------------------------------------------
\71\ The White House, Statement from Lieutenant General Keith
Kellogg, National Security Advisor to Vice President Mike Pence (Nov.
19, 2019) [hereinafter ``Statement from Lieutenant General Kellogg''].
\72\ Id.
\73\ Deposition of Jennifer Williams, in Wash., D.C., at 129 (Nov.
7, 2019) [hereinafter ``Williams deposition'']; Impeachment Inquiry:
LTC Alexander Vindman and Ms. Jennifer Williams, supra note 6.
\74\ Statement from Lieutenant General Kellogg, supra note 71.
---------------------------------------------------------------------------
Morrison's subordinate, LTC Vindman, listened in on the
conversation.\75\ At the time of the call, LTC Vindman handled
Ukraine policy for the NSC.\76\ He testified that he was
concerned by the conversation and raised his concerns to the
NSC's Legal Advisor, John Eisenberg.\77\ Eisenberg, according
to LTC Vindman, did not share the concern.\78\ LTC Vindman did
not raise any concerns to Morrison, his immediate
supervisor.\79\ In his public testimony, Morrison explained
that he had concerns with LTC Vindman's judgment and deviation
from the chain of command.\80\
---------------------------------------------------------------------------
\75\ Vindman deposition, supra note 12, at 18.
\76\ Id. at 16.
\77\ Id. at 96.
\78\ Id. at 97, 258.
\79\ Morrison deposition, supra note 12, at 59.
\80\ Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8.
---------------------------------------------------------------------------
The evidence suggests that any wider concerns about the
July 25 phone call originated from LTC Vindman. Williams
testified that she discussed the call with no one outside the
NSC.\81\ LTC Vindman, on the other hand, testified that he
discussed the phone call with two people outside of the NSC,
Deputy Assistant Secretary Kent and an unidentified
intelligence community employee.\82\ Deputy Assistant Secretary
Kent explained that LTC Vindman felt ``uncomfortable'' and
would not share the majority of the substance of the
conversation.\83\ According to Kent's recollection, LTC Vindman
did not mention that the conversation included any reference to
Vice President Biden.\84\
---------------------------------------------------------------------------
\81\ Impeachment Inquiry: LTC Alexander Vindman and Ms. Jennifer
Williams, supra note 6.
\82\ Id.
\83\ Kent deposition, supra note 65, at 163-64.
\84\ Id. at 165-66.
---------------------------------------------------------------------------
6. The anonymous, secondhand whistleblower complaint misstated details
about the July 25 call, which has falsely colored the call's
public characterization
The anonymous whistleblower did not listen in on the July
25 call between President Trump and President Zelensky. The
whistleblower's subsequent complaint about the conversation,
compiled with secondhand information, misstated key details
about the conversation.
The whistleblower sensationally alleged that President
Trump ``sought to pressure the Ukrainian leader to take actions
to help the President's 2020 reelection bid.''\85\ The call
summary, however, contains no reference to 2020 or President
Trump's reelection bid.\86\
---------------------------------------------------------------------------
\85\ Letter to Richard Burr, Chairman, S. Sel. Comm. on
Intelligence, & Adam Schiff, Chairman, H. Perm. Sel. Comm. on
Intelligence 2 (Aug. 12, 2019) [hereinafter ``Whistleblower letter''].
\86\ Memorandum of Telephone Conversation, supra note 15.
---------------------------------------------------------------------------
The whistleblower alleged that President Trump
``pressured'' President Zelensky to ``initiate or continue an
investigation into the activities of former Vice President
Joseph Biden and his son, Hunter Biden.''\87\ The call summary,
however, shows that President Trump referenced the Bidens only
in passing and that the presidents did not discuss the topic
substantively.\88\
---------------------------------------------------------------------------
\87\ Whistleblower letter, supra note 85, at 2.
\88\ Memorandum of Telephone Conversation, supra note 15.
---------------------------------------------------------------------------
The whistleblower alleged that President Trump
``pressured'' President Zelensky to ``locate and turn over
servers used by the Democratic National Committee (DNC) and
examined by the U.S. cyber security firm Crowdstrike.''\89\ The
call summary, however, demonstrates that while President Trump
mentioned Crowdstrike and ``the server,'' President Trump never
made any request that President Zelensky locate or turn over
any material.\90\
---------------------------------------------------------------------------
\89\ Whistleblower letter, supra note 85, at 2.
\90\ Memorandum of Telephone Conversation, supra note 15, at 3.
---------------------------------------------------------------------------
The whistleblower alleged that President Trump ``praised
Ukraine's Prosecutor General, Mr. Yuriy Lutsenko, and suggested
that Mr. Zelensky might want to keep him in his position.''\91\
The call summary is not clear about which prosecutor general
President Trump is referring to Ambassador Volker testified he
believed President Trump was referring to Lutsenko's
predecessor, Viktor Shokin\92\ and President Trump never
specifically referenced Lutsenko.\93\ President Trump also
never suggested or intimated that President Zelensky should
``keep [Lutsenko] in his position.''\94\
---------------------------------------------------------------------------
\91\ Whistleblower letter, supra note 85, at 3.
\92\ Volker transcribed interview, supra note 60, at 355.
\93\ Memorandum of Telephone Conversation, supra note 15.
\94\ Id.
---------------------------------------------------------------------------
The whistleblower also alleged that T. Ulrich Brechbuhl,
Counselor to Secretary of State Mike Pompeo, listened in on the
July 25 phone call.\95\ Subsequent reporting, confirmed by a
letter sent by Brechbuhl's attorney, indicated that Brechbuhl
was not on the call.\96\
---------------------------------------------------------------------------
\95\ Whistleblower letter, supra note 85, at 3.
\96\ Christina Ruffini (@EenaRuffini), Twitter (Sept. 26, 2019,
12:41 p.m.), https://twitter.com/EenaRuffini/status/
1177307225024544768; Letter from Ronald Tenpas to Adam Schiff,
Chairman, H. Perm. Sel. Comm. on Intelligence (Nov. 5, 2019).
---------------------------------------------------------------------------
* * *
Setting aside the whistleblower's mischaracterization of
President Trump's phone call with President Zelensky, the best
available evidence shows no coercion, threats, or pressure for
Ukraine to investigate the President's political rival for the
President's political benefit. The call summary shows no quid
pro quo, the initial read-outs relayed no substantive concerns,
and both President Zelensky and President Trump have repeatedly
said publicly there was no pressure. These facts refute the
Democrats' allegations.
B. THE EVIDENCE DOES NOT ESTABLISH THAT PRESIDENT TRUMP WITHHELD A
MEETING WITH PRESIDENT ZELENSKY TO PRESSURE UKRAINE TO INVESTIGATE THE
PRESIDENT'S POLITICAL RIVAL FOR THE PURPOSE OF BENEFITING HIM IN THE
2020 ELECTION
Democrats allege that President Trump withheld a meeting
with President Zelensky as a way of pressuring Ukraine to
investigate President Trump's political rival.\97\ Here, too,
the evidence obtained during the impeachment inquiry does not
support this allegation. President Trump and President Zelensky
met without Ukraine ever investigating Vice Present Biden or
his son, Hunter Biden.
---------------------------------------------------------------------------
\97\See, e.g., Karoun Demirjian et al., Officials' texts reveals
belief that Trump wanted probes as condition of Ukraine meeting, Wash.
Post, Oct. 4, 2019.
---------------------------------------------------------------------------
The evidence strongly suggests, instead, that President
Trump was reluctant to meet with President Zelensky for a
different reason--Ukraine's long history of pervasive
corruption and uncertainty about whether President Zelensky
would break from this history and live up to his anti-
corruption campaign platform. The Democrats' witnesses
described how President Trump has a deep-seated and genuine
skepticism of Ukraine due to its corruption and that the
President's view was reasonable. Because of President Trump's
skepticism and because President Zelensky was a first-time
candidate with relatively untested views, Ukraine and U.S.
officials sought to convince President Trump that President
Zelensky was the ``real deal'' on reform. President Trump
ultimately signed a letter to President Zelensky on May 29
inviting him to the White House.
Although there were several months between President
Trump's invitation on May 29 and the bilateral meeting on
September 25, the evidence does not show the delay was
intentional or aimed at pressuring President Zelensky. The
Democrats' witnesses described the difficulty in scheduling
high-level meetings and how an anticipated presidential meeting
in Poland in early September was cancelled due to Hurricane
Dorian. Nonetheless, U.S. foreign policy officials believed
that the Ukrainian government felt good about its relationship
with the Trump Administration because of several high-level
bilateral meetings held between May and September 2019,
including President Zelensky's meeting with Vice President
Pence on September 1. Ultimately, of course, President Trump
and President Zelensky met during the U.N. General Assembly in
New York on September 25, without Ukraine taking steps to
investigate President Trump's political rival.
1. Ukraine has a long history of pervasive corruption
Since it became an independent nation following the
collapse of the Soviet Union, Ukraine has been plagued by
systemic corruption. The Guardian has called Ukraine ``the most
corrupt nation in Europe''\98\ and Ernst & Young cites Ukraine
among the three most-corrupt nations of the world.\99\
---------------------------------------------------------------------------
\98\Oliver Bullough, Welcome to Ukraine, the Most Corrupt Nation in
Europe, Guardian, (Feb. 6, 2015).
\99\See, e.g., 14th Global Fraud Survey, Ernst & Young, (2016),
https://www.ey.com/Publication/vwLUAssets/EY-corporate-misconduct-
individual-consequences/$FILE/EY-corporate-misconduct-individual-
consequences.pdf (noting that 88% of Ukrainian's agree that ``bribery/
corrupt practices happen widely in business in [Ukraine]''). See also
Viktor Tkachuk, People First: The Latest in the Watch on Ukrainian
Democracy, Kyiv Post, (Sept. 11, 2012), https://www.kyivpost.com/
article/opinion/op-ed/people-first-the-latest-in-the-watch-on-
ukrainian-decoracy-5-312797.html.
---------------------------------------------------------------------------
The United States Agency for International Development
(USAID) explained Ukraine's history of corruption in a 2006
report:
From the early 1990s, powerful officials in [the
Ukrainian] government and politics acquired and
privatized key economic resources of the state. As
well, shadowy businesses, allegedly close to organized
crime, became powerful economic forces in several
regions of the country. Over the course of the past
decade, these business groupings--or clans--as they
became called, grew into major financial-industrial
structures that used their very close links with and
influence over government, political parties, the mass
media and the state bureaucracy to enlarge and fortify
their control over the economy and sources of wealth.
They used ownership ties, special privileges, relations
with government and direct influence over the courts
and law enforcement and regulatory organizations to
circumvent weaknesses in governmental
institutions.\100\
---------------------------------------------------------------------------
\100\U.S. Agency for International Development, Final Report,
Corruption Assessment: Ukraine (2006), https://pdf.usaid.gov/pdf_docs/
PNADK247.pdf.
Corruption is so pervasive in Ukraine that in 2011, 68.8%
of Ukrainian citizens reported that they had bribed a public
official within the preceding twelve months.\101\ Bribery and
facilitation payments\102\ are common schemes by which
Ukrainian officials demand payment in exchange for ensuring
public services are delivered either on time or at all.\103\
Corruption also presents an obstacle to private and public
business in Ukraine.\104\ In 2011, then-President Petro
Poroshenko estimated that 15%, or $7.4 billion, of the state
budget ``ends up in the pockets of officials'' through corrupt
public procurement practices.\105\
---------------------------------------------------------------------------
\101\Fighting Corruption in Ukraine: Ukrainian Style, Gorshenin
Inst., (Mar. 7, 2011), http://gpf-europe.com/upload/iblock/333/
round_table_eng.pdf.
\102\See Facilitation Payments, Corruption Dictionary,
Ganintegrity.com, (last visited Oct. 23, 2019), https://
www.ganintegrity.com/portal/corruption-dictionary/. Facilitation
payments, also known as ``grease payments,'' are a form of bribery made
with the purpose of expediting or securing the performance of a routine
action to which the payer is legally entitled. Id.
\103\People & Corruption: Citizens' Voices from Around the World,
Transparency Int'l, (2017), https://www.transparency.org/whatwedo/
publication/
people_and_corruption_citizens_voices_from_around_the_world.
\104\Id.
\105\Mark Rachkevych, Under Yanukovych, Ukraine Slides Deeper in
Ranks of Corrupt Nations, Kyiv Post, (Dec. 1, 2011).
---------------------------------------------------------------------------
Pervasive corruption in Ukraine has been one of the primary
impediments to Ukraine joining the European Union.\106\
Corruption-related concerns also figure prominently in the
E.U.-Ukrainian Association Agreement, the document establishing
a political and economic association between the E.U. and
Ukraine.\107\ The Agreement was entered into with the intent of
Ukraine committing to gradually conform to E.U. technical and
consumer standards.
---------------------------------------------------------------------------
\106\See, e.g., Vladimir Isachenkov, Ukraine's integration into
West dashed by war and corruption, Assoc. Press, Mar. 26, 2019.
\107\E.U.-Ukraine Ass'n Agreement, art. 14, Mar. 21, 2014, 57 Off.
J. of the E.U. L161/3 (``In their cooperation on justice, freedom and
security, the Parties shall attach particular importance to the
consolidation of the rule of law and the reinforcement of institutions
at all levels in the areas of administration in general and law
enforcement and the administration of justice in particular.
Cooperation will, in particular, aim at strengthening the judiciary,
improving its efficiency, safeguarding its independence and
impartiality, and combating corruption. Respect for human rights and
fundamental freedoms will guide all cooperation on justice, freedom and
security.'').
---------------------------------------------------------------------------
State Department witnesses called by the Democrats during
the impeachment inquiry confirmed Ukraine's reputation for
corruption. Deputy Assistant Secretary of State George Kent
described Ukraine's corruption problem as ``serious'' and said
corruption has long been ``part of the high-level dialogue''
between the United States and Ukraine.\108\ Ambassador Bill
Taylor said corruption in Ukraine is a ``big issue.''\109\
Ambassador Kurt Volker testified that ``Ukraine has a long
history of pervasive corruption throughout the economy[,]
throughout the country, and it has been incredibly difficult
for Ukraine as a country to deal with this, to investigate it,
to prosecute it.''\110\ He later elaborated:
---------------------------------------------------------------------------
\108\Kent deposition, supra note 65 at 105, 151.
\109\Taylor deposition, supra note 47, at 86.
\110\Volker transcribed interview, supra note 60, at 76.
Ukraine had for decades a reputation of being just a
corrupt place. There are a handful of people who own a
disproportionate amount of the economy. Oligarchs, they
use corruption as kind of the coin of the realm to get
what they want, including influencing the Parliament,
the judiciary, the government, state-owned industries.
And so businessmen generally don't want to invest in
Ukraine, even to this day, because they just fear that
it's a horrible environment to be working in, and they
don't want to put--expose themselves to that risk. I
would have to believe that President Trump would be
aware of that general climate.\111\
---------------------------------------------------------------------------
\111\Id. at 148-49.
---------------------------------------------------------------------------
2. President Trump has a deep-seated, genuine, and reasonable
skepticism of Ukraine due to its history of pervasive
corruption
Multiple Democrat witnesses offered firsthand testimony of
President Trump's skeptical view of Ukraine, as far back as
September 2017. Ambassador Volker explained: ``President Trump
demonstrated that he had a very deeply rooted negative view of
Ukraine based on past corruption. And that's a reasonable
position. Most people who would know anything about Ukraine
would think that.''\112\ He elaborated that the President's
concern about Ukraine was genuine,\113\ and that this concern
contributed to a delay in the meeting with President Zelensky.
He explained:
---------------------------------------------------------------------------
\112\Id. at 30.
\113\Id. at 295.
So the issue as I understood it was this deep-rooted,
skeptical view of Ukraine, a negative view of Ukraine,
preexisting 2019, you know, going back. When I started
this, I had one other meeting with President Trump and
[then-Ukrainian] President Poroshenko. It was in
September of 2017. And at that time he had a very
skeptical view of Ukraine. So I know he had a very
deep-rooted skeptical view. And my understanding at the
time was that even though he agreed in the [May23]
meeting that we had with him, say, okay, I'll invite
him, he didn't really want to do it. And that's why the
meeting kept being delayed and delayed.\114\
---------------------------------------------------------------------------
\114\Id. at 41.
Other testimony confirms Ambassador Volker's statements.
Former U.S. Ambassador to Ukraine Marie Yovanovitch confirmed
the President's skepticism, saying that she observed it during
President Trump's meeting with President Poroshenko in
September 2017.\115\ She testified:
---------------------------------------------------------------------------
\115\Deposition of Ambassador Marie Yovanovitch, in Wash., D.C., at
142 (Oct. 11, 2019).
Q. Were you aware of the President's deep-rooted
skepticism about Ukraine's business environment?
A. Yes.
Q. And what did you know about that?
A. That he--I mean, he shared that concern directly
with President Poroshenko in their first meeting in the
Oval Office.\116\
---------------------------------------------------------------------------
\116\Id.
Dr. Fiona Hill, NSC Senior Director for Europe, also
testified that President Trump was ``quite publicly'' skeptical
of Ukraine and that ``everyone has expressed great concerns
about corruption in Ukraine.''\117\ Catherine Croft, a former
NSC director, similarly attested to President's Trump
skepticism when she staffed President Trump for two Ukraine
matters in 2017, explaining: ``Throughout both, I heard,
directly and indirectly, President Trump described Ukraine as a
corrupt country.''\118\
---------------------------------------------------------------------------
\117\Hill deposition, supra note 12, at 118.
\118\Croft deposition, supra note 60, at 14.
---------------------------------------------------------------------------
3. Senior Ukrainian government officials publicly attacked President
Trump during the 2016 campaign
President Trump's skepticism about Ukraine was compounded
by statements made by senior Ukrainian government officials in
2016 that were critical of then-candidate Trump and supportive
of his opponent, former Secretary of State Hillary Clinton.
Although Democrats have attempted to discredit these assertions
as ``debunked,'' the statements by Ukrainian leaders speak for
themselves and shed light on President Trump's mindset when
interacting with President Zelensky in 2019.
In August 2016, less than three months before the election,
Valeriy Chaly, then-Ukrainian Ambassador to the United States,
authored an op-ed in the Washington-based publication The Hill
criticizing candidate Trump for comments he made about Russia's
occupation of Crimea.\119\ Ambassador Chaly wrote that
candidate Trump's comments ``have raised serious concerns in
[Kyiv] and beyond Ukraine.''\120\ Although President Zelensky
dismissed Ambassador Chaly on July 19, 2019,\121\ the
ambassador's op-ed remains on the website of the Ukrainian
Embassy in the U.S. as of the date of this report.\122\
---------------------------------------------------------------------------
\119\See Chaly, supra note 27.
\120\Id.
\121\Zelensky dismisses Valeriy Chaly from post of Ukraine's envoy
to US, Kyiv Post (July 19, 2019).
\122\Embassy of Ukraine in the United States of America, Op-ed by
Ambassador of Ukraine to the USA Valeriy Chaly for the Hill: ``Trump's
comments send wrong message to world,'' https://usa.mfa.gov.ua/en/
press-center/publications/4744-posol-ukrajini-vislovlyuvannya-trampa-
nadsilajuty-nevirnij-signal-svitu.
---------------------------------------------------------------------------
Later that month, the Financial Times published an article
asserting that Trump's candidacy led ``Kyiv's wider political
leadership to do something they would never have attempted
before: intervene, however indirectly, in a US election.''\123\
The article quoted Serhiy Leshchenko, a Ukrainian Member of
Parliament, to detail how the Ukrainian government was
supporting Secretary Clinton's candidacy.\124\ The article
explained:
---------------------------------------------------------------------------
\123\Roman Olearchyk, Ukraine's leaders campaign against `pro-
Putin' Trump, Financial Times, Aug. 28, 2016.
\124\Id.
Though most Ukrainians are disillusioned with the
country's current leadership for stalled reforms and
lackluster anti-corruption efforts, Mr. Leshchenko said
events of the past two years had locked Ukraine on to a
pro-western course. The majority of Ukraine's
politicians, he added, are ``on Hillary Clinton's
side.''\125\
---------------------------------------------------------------------------
\125\Id. (emphasis added).
The Financial Times reported that during the U.S.
presidential campaign, former Ukrainian Prime Minister Arseniy
Yatsenyuk had warned on Facebook that candidate Trump
``challenged the very values of the free world.''\126\ On
Twitter, Ukrainian Internal Affairs Minister Arsen Avakov
called Trump a ``clown'' who is ``an even bigger danger to the
US than terrorism.''\127\ In a Facebook post, Avakov called
Trump ``dangerous for Ukraine and the US'' and said that
Trump's Crimea comments were the ``diagnosis of a dangerous
misfit.''\128\ Avakov continues to serve in President
Zelensky's government.
---------------------------------------------------------------------------
\126\Id.
\127\Kenneth P. Vogel & David Stern, Ukrainian efforts to sabotage
Trump backfire, Politico, Jan. 11, 2017.
\128\Id.
---------------------------------------------------------------------------
Multiple Democrat witnesses testified that these Ukrainian
actions during the 2016 election campaign likely also colored
President Trump's views of President Zelensky. Ambassador
Volker said:
Q. And you mentioned that the President was
skeptical, had a deep-rooted view of the Ukraine. Is
that correct?
A. That is correct.
Q. And that, whether fair or unfair, he believed
there were officials in Ukraine that were out to get
him in the run-up to his election?
A. That is correct.
Q. So, to the extent there are allegations lodged,
credible or uncredible, if the president was made aware
of those allegations, whether it was via The Hill or,
you know, via Mr. Giuliani or via cable news, if the
President was made aware of these allegations, isn't it
fair to say that he may, in fact, have believed they
were credible?
A. Yes, I believe so.\129\
---------------------------------------------------------------------------
\129\Volker transcribed interview, supra note 60, at 70-71.
---------------------------------------------------------------------------
Ambassador Sondland similarly testified:
Q. Did [President Trump] mention anything about
Ukraine's involvement in the 2016 election?
A. I think he said: They tried to take me down. He
kept saying that over and over.
Q. In connection with the 2016 election?
A. Probably, yeah.
Q. That was what your understanding was?
A. That was my understanding, yeah.\130\
---------------------------------------------------------------------------
\130\Sondland deposition, supra note 51, at 75.
---------------------------------------------------------------------------
4. U.S. foreign policy officials were split on President Zelensky, a
political novice with untested views on anti-corruption and a
close relationship with a controversial oligarch
Evidence obtained during the Democrats' impeachment inquiry
shows that the U.S. foreign policy apparatus was divided on the
question of whether President Trump should meet with President
Zelensky. President Zelensky was a first-time candidate and a
newcomer to the Ukrainian political scene. Although President
Zelensky ran on an anti-corruption and reform platform, the
Democrats' witnesses explained that the State Department was
unsure how he would govern as president. In addition, others in
the U.S. government worried about President Zelensky's
association with Ukrainian oligarch Igor Kolomoisky.
President Zelensky won a landslide victory on April 21,
2019, defeating incumbent President Petro Poroshenko by a 73-24
percent margin.\131\ The win came as a surprise to many.\132\
At the time of his election, Mr. Zelensky was a comedic
television personality. Ambassador Volker testified that
``Zelensky kind of came up out of nowhere. . . . When he arose
kind of meteorically, as an outside figure and a popular
candidate, I think it did take everybody by surprise.''\133\
---------------------------------------------------------------------------
\131\Ukraine election: Comedian Zelensky wins presidency by
landside, BBC News (Apr. 22, 2019).
\132\Id.
\133\Volker transcribed interview, supra note 60 at 152-53.
---------------------------------------------------------------------------
Ambassador Yovanovitch also testified that Zelensky's
election came as a surprise. She explained:
And I think that there was, you know, as is true, I
think, probably in any country during Presidential
elections, a lot of--a lot of concerns among people.
This was I think a big surprise for the political elite
of Ukraine, which is relatively small. And so, I don't
think they saw it coming really until the very end.
And, so, there was surprise and, you know, all the
stages of grief, anger, disbelief, how is this
happening?\134\
---------------------------------------------------------------------------
\134\Yovanovitch deposition, supra note 115, at 73-74.
Ambassador Yovanovitch agreed that President Zelensky was
---------------------------------------------------------------------------
an ``untried'' politician:
Q. And how did you feel about [Zelensky winning the
election]? What were your views of Zelensky? Did you
think he was going to be a good advocate for the
anticorruption initiatives, as he was campaigning on?
A. We didn't know. I mean, he was an untried
politician. Obviously, he has a background as a
comedian, as an actor, as a businessperson, but we
didn't know what he would be like as a President.\135\
---------------------------------------------------------------------------
\135\Id. at 74.
Ambassador Sondland testified that there was a difference
in opinion regarding whether to schedule a call between
Presidents Trump and Zelensky. Ambassador Sondland recalled
that he, Ambassador Volker, and Secretary Perry advocated for a
call between the presidents, while NSC officials
disagreed.\136\
---------------------------------------------------------------------------
\136\Sondland note 51, at 27-28.
---------------------------------------------------------------------------
Evidence suggests that U.S. officials had concerns about
some people surrounding President Zelensky. Ambassador Volker
testified that President Zelensky's chief of presidential
administration, Andriy Bohdan, had earlier been an attorney for
``a very famous oligarch in Ukraine.''\137\ Senator Ron
Johnson, who attended President Zelensky's inauguration in May
2019, recalled ``concern over rumors that [President] Zelensky
was going to appoint Andriy Bohdan, the lawyer for oligarch
Igor Kolomoisky, as his chief of staff. The delegation [to the
inauguration] viewed Bohdan's rumored appointment to be
contrary to the goal of fighting corruption and maintaining
U.S. support.''\138\ President Zelensky appointed Bohdan to be
head of presidential administration in May 2019.\139\
---------------------------------------------------------------------------
\137\Volker transcribed interview, supra note 60, at 137.
\138\Letter from Sen. Ron Johnson to Jim Jordan, Ranking Member, H.
Comm. on Oversight & Reform, & Devin Nunes, Ranking Member, H. Perm.
Sel. Comm. on Intelligence 3 (Nov. 18, 2019).
\139\Roman Olearchyk, Volodymyr Zelensky hires oligarch's lawyer as
chief of staff, Financial Times, May 22, 2019.
---------------------------------------------------------------------------
In addition, Dr. Hill explained that the NSC had a concern
about President Zelensky's relationship with Kolomoisky, an
oligarch who had owned the television station on which
Zelensky's comedy show aired.\140\ Under the Poroshenko regime,
the Ukrainian government had accused Kolomoisky of embezzling
from PrivatBank, which he co-owned, causing Kolomoisky to flee
Ukraine.\141\ According to Ambassador Volker, ``the Ukrainian
taxpayer officially is bailing out the bank for the money that
Kolomoisky stole. Because the IMF provides budgetary support to
Ukraine, we [the U.S. taxpayers] actually ended up bailing out
this bank.''\142\
---------------------------------------------------------------------------
\140\Hill deposition, supra note 12, at 76-77.
\141\Andrew E. Kramer, Oligarch's return raises alarm in Ukraine,
N.Y. Times, May 16, 2019.
\142\Volker transcribed interview, supra note 60, at 246.
---------------------------------------------------------------------------
Ambassador Taylor testified that he discussed these
concerns about Kolomoisky directly with President Zelensky:
[T]he influence of one particular oligarch over Mr.
Zelensky is of particular concern, and that's this
fellow Kolomoisky, so--and Kolomoisky has growing
influence. And this is one of the concerns that I have
expressed to President Zelensky and his team on several
occasions very explicitly, saying that, you know, Mr.
President, Kolomoisky was not elected. You were elected
and he, Mr. Kolomoisky, is increasing his influence in
your government, which could cause you to fail. So I've
had that conversation with him a couple of times.\143\
---------------------------------------------------------------------------
\143\Taylor deposition, supra note 47, at 86.
Kolomoisky returned to Ukraine following President Zelensky's
victory.\144\
---------------------------------------------------------------------------
\144\Kramer, supra note 141.
---------------------------------------------------------------------------
5. President Trump extended an invitation to the White House to
President Zelensky on three occasions without conditions
The evidence demonstrates that President Trump had a deep
skepticism of Ukraine based on its history of pervasive
corruption. This inherent skepticism, coupled with certain
Ukrainian government officials' criticism of candidate Trump
during the 2016 campaign and President Zelensky's untested
views, contributed to President Trump's reticence to meet with
President Zelensky. In spring and summer 2019, however, the
President extended an invitation to the White House to
President Zelensky on three occasions--without any conditions.
On April 21, 2019, President Trump placed a brief
congratulatory call to President-elect Zelensky.\145\ President
Trump said: ``When you're settled in and ready, I'd like to
invite you to the White House.''\146\ The presidents did not
discuss any investigations, and President Trump placed no
conditions on his invitation.
---------------------------------------------------------------------------
\145\Memorandum of Telephone Conversation, supra note 10.
\146\Id.
---------------------------------------------------------------------------
On May 23, President Trump met with Ambassador Volker,
Ambassador Sondland, Secretary Perry, and Senator Johnson--the
senior U.S. officials who had comprised the official U.S.
delegation to President Zelensky's inauguration days before.
The delegation sought to convey to President Trump a positive
impression of President Zelensky.\147\ According to Ambassador
Volker:
---------------------------------------------------------------------------
\147\Hill deposition, supra note 12, at 320.
President Trump demonstrated that he had a very
deeply rooted negative view of Ukraine based on past
corruption. And that's a reasonable position. Most
people who would know anything about Ukraine would
think that. That's why it was important that we wanted
to brief him, because we were saying, it's different,
this guy is different. But the President had a very
deeply rooted negative view. We urged that he invite
President Zelensky to meet with him at the White House.
He was skeptical of that. We persisted. And he finally
agreed, okay, I'll do it.\148\
---------------------------------------------------------------------------
\148\Volker transcribed interview, supra note 60, at 30-31.
Later in his transcribed interview, Ambassador Volker
---------------------------------------------------------------------------
provided more context for the May 23 discussion:
What I heard from President Trump in the meeting in
the oval office was blanket, like, ``this--these are
terrible people, this is a corrupt country,'' you know,
``I don't believe it.'' I made the argument that
President Zelensky is the real deal, he is going to try
to fix things, and, you know, he just did not believe
it. He waved it off. So there's a general issue there.
He did not mention investigations to me in that
meeting, or call for investigations. I was not aware
that he did so in the July 25th call later. His
attitude towards Ukraine was just general and
negative.\149\
---------------------------------------------------------------------------
\149\Id. at 280.
Ambassador Sondland similarly testified that President
Trump expressed negative views about Ukraine in this meeting
and mentioned how ``they tried to take me down'' in 2016.\150\
Although Ambassador Sondland said he was discouraged by the
President's viewpoint, he was pleased and surprised that the
President later agreed to invite President Zelensky to the
White House.\151\
---------------------------------------------------------------------------
\150\Sondland deposition, supra note 51, at 74-75.
\151\Id. at 74, 81, 85-87.
---------------------------------------------------------------------------
Senator Johnson recalled that in this meeting, President
Trump ``expressed strong reservations about support for
Ukraine. He made it crystal clear that he viewed Ukraine as a
thoroughly corrupt country both generally and, specifically,
regarding rumored meddling in the 2016 election.''\152\ Senator
Johnson further explained:
---------------------------------------------------------------------------
\152\Letter from Sen. Ron Johnson, supra note 138, at 4.
It was obvious that [the President's] viewpoint and
reservations were strongly held, and that we would have
a significant sales job ahead of us in getting him to
change his mind. I specifically asked him to keep his
viewpoint and reservations private and not to express
them publicly until he had a chance to meet [President]
Zelensky. He agreed to do so, but he added that he
wanted [President] Zelensky to know exactly how he felt
about the corruption in Ukraine prior to any future
meeting.\153\
---------------------------------------------------------------------------
\153\Id.
Senator Johnson recounted that he did not recall President
Trump mentioning Burisma or the Bidens, but it was ``obvious'''
that President Trump was aware of ``rumors that corrupt actors
in Ukraine might have played a part in helping create the false
Russia collusion narrative.''\154\
---------------------------------------------------------------------------
\154\Id.
---------------------------------------------------------------------------
On May 29, President Trump wrote to President Zelensky to
invite him to Washington, D.C. ``as soon as we can find a
mutually convenient time.''\155\ President Trump's letter did
not mention any investigations and placed no conditions on
President Zelensky's invitation to the White House. On July 25,
during their phone conversation, President Trump reiterated his
invitation to President Zelensky, again without
conditions.\156\
---------------------------------------------------------------------------
\155\Letter from President Donald J. Trump to His Excellency
Volodymyr Zelenskyy, President of Ukraine (May 29, 2019). Dr. Hill
testified that Ambassador Sondland claimed he had dictated the
paragraph inviting President Zelensky to the White House, see Hill
deposition, supra note 12, at 74; however, Ambassador Sondland
testified that he had no role in drafting the letter. Sondland
deposition, supra note 51, at 81.
\156\Memorandum of Telephone Conversation, supra note 15.
---------------------------------------------------------------------------
6. Despite difficulty scheduling a face-to-face presidential meeting,
senior Ukrainian officials interacted often with senior
American officials between May and September 2019
By late May 2019, President Trump had formally extended an
invitation for President Zelensky to visit the White House.
Although the two presidents did not meet face-to-face until
September 25, the Democrats' witnesses testified that
presidential meetings can often take time to schedule and that
senior Ukrainian officials met frequently with American
counterparts in the interim.\157\ Ambassador Volker explained
that the new Zelensky regime was ``actually feeling pretty good
by then'' about its relationship with the Trump
Administration.\158\
---------------------------------------------------------------------------
\157\Kent deposition, supra note 65, at 231; Volker transcribed
interview, supra note 60, at 127.
\158\Volker transcribed interview, supra note 60, at 127.
---------------------------------------------------------------------------
On June 4, President Zelensky attended an Independence Day
dinner at the U.S. mission to the E.U. hosted by Ambassador
Sondland and also attended by White House Senior Advisor Jared
Kushner.\159\
---------------------------------------------------------------------------
\159\Sondland deposition, supra note 51, at 26-27, 148-49.
---------------------------------------------------------------------------
On July 3, while in Toronto, Canada, for the Ukraine Reform
Conference, President Zelensky met with Ambassador Volker and
Deputy Assistant Secretary of State George Kent.\160\
---------------------------------------------------------------------------
\160\Kent deposition, supra note 65, at 241; Volker transcribed
interview, supra note 60, at 137.
---------------------------------------------------------------------------
On July 9, Oleksandr Danylyuk, then-Secretary of the
National Security and Defense Council of Ukraine, and Andrey
Yermak, a senior adviser to President Zelensky, met with LTG
Keith Kellogg, Vice President Pence's National Security
Advisor; Jennifer Williams, a special advisor covering European
issues for Vice President Pence; and NSC staff member LTC
Alexander Vindman.\161\
---------------------------------------------------------------------------
\161\Williams deposition, supra note 73, at 51-53.
---------------------------------------------------------------------------
On July 10, Danylyuk and Yermak met at the White House with
National Security Advisor John Bolton, Secretary Perry,
Ambassador Volker, Ambassador Sondland, Dr. Hill, and LTC
Vindman.\162\
---------------------------------------------------------------------------
\162\Volker transcribed interview, supra note 60, at 66-67; Hill
deposition, supra note 12, at 62-63.
---------------------------------------------------------------------------
On July 25, President Trump and President Zelensky spoke by
telephone.\163\
---------------------------------------------------------------------------
\163\Memorandum of Telephone Conversation, supra note 15.
---------------------------------------------------------------------------
On July 26, President Zelensky met with Ambassador Volker,
Ambassador Sondland, and Ambassador Taylor in Kyiv.\164\
Ambassador Volker testified that the meeting was scheduled
before the presidents' phone call.\165\ He said President
Zelensky was ``pleased that the call had taken place . . . .
They thought it went well. And they were encouraged again
because the President had asked them to pick dates for coming
to the White House.''\166\
---------------------------------------------------------------------------
\164\Volker transcribed interview, supra note 60, at 312-33;
Sondland deposition, supra note 51, at 29.
\165\Volker transcribed interview, supra note 60, at 102.
\166\Id. at 313.
---------------------------------------------------------------------------
On August 27, President Zelensky met with National Security
Advisor Bolton in Kyiv.\167\
---------------------------------------------------------------------------
\167\Taylor deposition, supra note 47, at 229-30.
---------------------------------------------------------------------------
On September 1, President Zelensky met with Vice President
Pence in Warsaw, Poland, after an event commemorating the 80th
anniversary of the beginning of World War II.\168\ President
Trump had been scheduled to attend but was forced to cancel due
to Hurricane Dorian.\169\ According to Ambassador Taylor's
testimony, Vice President Pence reiterated President Trump's
views for ``Europeans to do more to support Ukraine and that he
wanted the Ukrainians to do more to fight corruption.''\170\
---------------------------------------------------------------------------
\168\The White House, Readout of Vice President Mike Pence's
Meeting with Ukrainian President Volodymyr Zelenskyy (Sept. 1, 2019);
Taylor deposition, supra note 47, at 34-35.
\169\Volker transcribed interview, supra note 60, at 130; Taylor
deposition, supra note 47, at 35.
\170\Taylor deposition, supra note 47, at 35.
---------------------------------------------------------------------------
On September 17, Secretary of State Pompeo had a telephone
conversation with Ukrainian Foreign Minister Vadym
Prystaiko.\171\ According to a readout from the U.S. Embassy in
Kyiv, Secretary Pompeo ``affirmed U.S. support for Ukraine as
it advances critical reforms to tackle corruption, strengthen
the rule of law, and foster an economic environment that
promotes competition and investment. The Secretary expressed
unwavering U.S. support for Ukraine's sovereignty and
territorial integrity.''\172\
---------------------------------------------------------------------------
\171\U.S. Embassy in Ukraine, Secretary Michael R. Pompeo's Call
with Ukrainian Foreign Minister Vadym Prystayko (Sept. 17, 2019),
https://ua.usembassy.gov/secretary-michael-r-pompeos-call-with-
ukrainian-foreign- minister-vadym-prystayko/.
\172\Id.
---------------------------------------------------------------------------
On September 18, President Zelensky and Vice President
Pence spoke by telephone.\173\ The two discussed President
Zelensky's upcoming meeting with President Trump on the margins
of the U.N. General Assembly and Ukraine's effort to address
its corruption challenges.\174\
---------------------------------------------------------------------------
\173\The White House, Readout of Vice President Mike Pence's Phone
Call with President of Ukraine (Sept. 18, 2019).
\174\Id.; see also Volker transcribed interview, supra note 60, at
317-18.
---------------------------------------------------------------------------
7. The evidence does not establish a linkage between a White House
meeting and Ukrainian investigations into President Trump's
political rival
The evidence in the Democrats' impeachment inquiry does not
show that a White House meeting was conditioned on Ukraine's
willingness to investigate President Trump's political rival.
Although the anonymous whistleblower, citing ``multiple''
secondhand sources, alleged that President Trump sought to
withhold a meeting to pressure President Zelensky to ``play
ball,''\175\ publicly available information contradicts the
whistleblower's claim. For example, Andrey Yermak, a senior
adviser to President Zelensky, admitted in an August 2019 New
York Times article that he discussed with Mayor Giuliani both
meeting between President Trump and President Zelensky and
investigations.\176\ The Times reported, however, that Yermak
and Mayor Giuliani ``did not discuss a link between the
two.''\177\
---------------------------------------------------------------------------
\175\Whistleblower letter, supra note 85, at 7.
\176\Kenneth P. Vogel & Andrew E. Kramer, Giuliani renews push for
Ukraine to investigate Trump's political opponents, N.Y. Times, Aug.
21, 2019.
\177\Id.
---------------------------------------------------------------------------
Other firsthand testimony obtained during the impeachment
inquiry supports this finding. For example, Ambassador Volker,
the key interlocutor with the Ukrainian government, clearly
testified that there was no ``linkage'' between a White House
meeting and Ukrainian actions to investigate President Trump's
political rival. He explained:
Q. Did the President ever withhold a meeting with
President Zelensky until the Ukrainians committed to
investigating those allegations?
A. We had a difficult time scheduling a bilateral
meeting between President Zelensky and President Trump.
Q. Ambassador Volker, that was a yes-or-no question.
A. Well, if I--can you repeat the question then?
Q. Sure. Did President Trump ever withhold a meeting
with President Zelensky or delay a meeting with
President Zelensky until the Ukrainians committed to
investigate the allegations that you just described
concerning the 2016 Presidential election?
A. The answer to the question is no, if you want a
yes-or-no answer. But the reason the answer is no is we
did have difficulty scheduling a meeting, but there was
no linkage like that.\178\
---------------------------------------------------------------------------
\178\Volker transcribed interview, supra note 60, at 35-36.
---------------------------------------------------------------------------
* * *
Q. So before we move to the text messages, I want to
ask you a clarifying question. You said that you were
not aware of any linkage between the delay in the Oval
Office meeting between President Trump and President
Zelensky and the Ukrainian commitment to investigate
the two allegations as you described them, correct?
A. Correct.\179\
---------------------------------------------------------------------------
\179\Id. at 40.
Ambassador Sondland was the only witness to allege a quid
pro quo with respect to a White House meeting. However, to the
extent that Ambassador Sondland testified that he believed a
White House meeting was conditioned on Ukrainian actions, his
belief was that a meeting was conditioned on a public statement
about anti-corruption--not on investigations into President
Trump's political rival.\180\ Ambassador Sondland testified in
his closed-door deposition that ``nothing about the request
raised any red flags for me, Ambassador Volker, or Ambassador
Taylor.''\181\ In his public testimony, Ambassador Sondland
clarified that he believed there was linkage, but that
President Trump had never discussed with him any preconditions
for a White House visit by President Zelensky.\182\
---------------------------------------------------------------------------
\180\Sondland deposition, supra note 51, at 30, 331.
\181\Id. at 30.
\182\Impeachment Inquiry: Ambassador Gordon Sondland, supra note
56.
---------------------------------------------------------------------------
In addition, there is conflicting testimony about what
occurred during a July 10 meeting between two senior Ukrainian
officials and senior U.S. officials in National Security
Advisor John Bolton's office. Ambassador Volker, Ambassador
Sondland, Secretary Perry joined Ambassador Bolton to meet with
Oleksandr Danylyuk, then-Secretary of Ukraine's National
Security and Defense Council, and Andrey Yermak, an adviser to
President Zelensky.\183\ Dr. Hill and LTC Vindman from the NSC
staff attended as well.\184\
---------------------------------------------------------------------------
\183\Sondland deposition, supra note 51, at 27; Volker transcribed
interview, supra note 60, at 50-51.
\184\Hill deposition, supra note 12, at 63; Vindman deposition,
supra note 12, at 17-18.
---------------------------------------------------------------------------
Dr. Hill and LTC Vindman alleged that during the meeting,
Ambassador Sondland raised potential Ukrainian actions on
investigations, leading Ambassador Bolton to abruptly end the
meeting.\185\ Dr. Hill recounted that Ambassador Bolton told
her to brief the NSC Legal Advisor, John Eisenberg, and said he
would not be a part of what he termed a ``drug deal.''\186\
---------------------------------------------------------------------------
\185\Hill deposition, supra note 12, at 67; Vindman deposition,
supra note 12, at 17.
\186\Hill deposition, supra note 12, at 70-71.
---------------------------------------------------------------------------
Although Dr. Hill testified that she confronted Ambassador
Sondland over his discussion of investigations,\187\ Ambassador
Sondland testified in his closed-door deposition that ``neither
Ambassador Bolton, Dr. Hill, or anyone else on the NSC staff
ever expressed any concerns to me about our efforts . . . or,
most importantly, any concerns that we were acting
improperly.''\188\ Ambassador Sondland testified in his
deposition that he recalled no ``unpleasant conversation'' with
Dr. Hill.\189\ Likewise, although Ambassador Volker assessed
that the meeting was ``not good,'' he said it was because
Danylyuk poorly conveyed the appropriate top-level message to
Ambassador Bolton during the meeting.\190\
---------------------------------------------------------------------------
\187\Id. at 68-71. Dr. Hill testified that she also had a ``blow
up'' with Ambassador Sondland in June about Ukraine, saying that
Ambassador Sondland got ``testy.'' Id. at 113.
\188\Sondland deposition, supra note 51, at 28.
\189\Id. at 114.
\190\Volker transcribed interview, supra note 60, at 66.
---------------------------------------------------------------------------
In his public testimony, Ambassador Volker acknowledged
that Ambassador Sondland made a ``general comment about
investigations,'' but he disputed that the July 10 meeting
ended abruptly.\191\ He also testified that preconditions were
not discussed during the meeting.\192\ Although Ambassador
Sondland denied in his closed-door depositions that he raised
investigations during July 10 meeting,\193\ he acknowledged
that he did in his public testimony.\194\ Even still,
Ambassador Sondland denied that the July 10 meeting ended
abruptly: ``I don't recall any abrupt ending of the meeting or
people storming out or anything like that. That would have been
very memorable if someone had stormed out of a meeting, based
on something I said.''\195\ He explained that Dr. Hill never
raised concerns to him, and that any discussion of
investigations did not mention specific investigations.\196\ He
testified:
---------------------------------------------------------------------------
\191\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8.
\192\Id.
\193\Id. at 109-10.
\194\Impeachment Inquiry: Ambassador Gordon Sondland, supra note
56.
\195\Id.
\196\Id.
Q. And, in fact, after the meeting, you went out and
you took a picture, right?
A. Yeah. We--Ambassador Bolton--or his assistant
indicated that he was out of time, that he needed--he
had another meeting to attend. And we all walked out of
the White House. Everyone was smiling, everyone was
happy, and we took a picture on the lawn on a nice
sunny day.
Q. Okay. Then did you retire to the Ward Room?
A. I think Secretary Perry asked to use the Ward Room
to continue the conversation. And the real subject that
was under debate--and it wasn't an angry debate, it was
a debate--should the call from President Trump to
President Zelensky be made prior to the parliamentary
elections in Ukraine or after the parliamentary
elections? And there was good reason for both. We
felt--Ambassador Perry, Ambassador Volker, and I
thought it would help President Zelensky to have
President Trump speak to him prior to the parliamentary
elections, because it would give President Zelensky
more credibility, and ultimately he would do better
with his people in the parliamentary elections. Others,
I believe, pushed back and said, no, it's not
appropriate to do it before. It should be done after.
And ultimately, it was done after.
Q. Okay. There was no mention of Vice President Biden
in the Ward Room?
A. Not that I remember, no.
Q. Or any specific investigation?
A. Just the generic investigations.\197\
---------------------------------------------------------------------------
\197\Id.
Contemporaneous evidence contradicts the idea that there
was serious discord during the meeting. Following the meeting,
Ambassador Bolton retweeted a statement from Secretary Perry
about the July 10 meeting, writing it was a ``great discussion
. . . on U.S. support for Ukrainian reforms and the peaceful
restoration of Ukrainian territory.''\198\ The picture in the
tweet of the U.S. and Ukrainian officials--taken immediately
after the meeting in Ambassador Bolton's office\199\--shows
smiling faces and no indication of hostility or discord between
Ambassador Bolton and Ambassador Sondland.
---------------------------------------------------------------------------
\198\John Bolton (@AmbJohnBolton), Twitter (July 10, 2019, 4:39
p.m.), https://twitter.com/AmbJohnBolton/status/1149100798632026112.
\199\Sondland deposition, supra note 51, at 110.
---------------------------------------------------------------------------
Figure 1: Ambassador Bolton tweet following July 10 meeting
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 2: Picture of smiling U.S. and Ukrainian officials
following July 10 meeting
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
8. The evidence does not establish that President Trump directed Vice
President Pence not to attend President Zelensky's inauguration
to pressure Ukraine to investigate the President's political
rival
The evidence also does not establish that President Trump
directed Vice President Pence not to attend President
Zelensky's inauguration as a means of pressuring Ukraine to
investigate the President's political rival. During their
initial April 21 phone call, President Trump told President
Zelensky that a ``great'' representative of the U.S. would
attend the Zelensky inauguration.\200\ The anonymous
whistleblower alleged that President Trump later ``instructed
Vice President Pence to cancel his planned travel to Ukraine to
attend President Zelensky's inauguration . . . . [I]t was also
`made clear' to them that the President did not want to meet
with Mr. Zelensky until he saw how Zelensky `chose to act' in
office.''\201\ The evidence in the Democrats' impeachment
inquiry does not support this assertion.
---------------------------------------------------------------------------
\200\Memorandum of Telephone Conversation, supra note 10.
\201\Whistleblower letter, supra note 85, at app. 1-2.
---------------------------------------------------------------------------
Although Jennifer Williams, a special adviser in the Office
of the Vice President, testified in her closed-door deposition
that a colleague told her that President Trump directed Vice
President Pence not to attend the inauguration,\202\ she had no
firsthand knowledge of any such direction or the reasons given
for any such direction.\203\ Williams explained that the Office
of the Vice President provided three dates May 30, May 31 and
June 1 during which Vice President Pence would be available to
attend the inauguration.\204\ Williams explained that ``if it
wasn't one of those dates it would be very difficult or
impossible'' for Vice President Pence to attend.\205\ Neither
the Secret Service nor advance teams deployed to Ukraine to
prepare for Vice President Pence's travel.\206\
---------------------------------------------------------------------------
\202\Williams deposition, supra note 73, at 37.
\203\Impeachment Inquiry: LTC Alexander Vindman and Ms. Jennifer
Williams, supra note 6.
\204\Williams deposition, supra note 73, at 58; Impeachment
Inquiry: LTC Alexander Vindman and Ms. Jennifer Williams, supra note 6.
\205\Williams deposition, supra note 73, at 58.
\206\Id. at 59.
---------------------------------------------------------------------------
During this same period, Vice Present Pence was planning
travel to Ottawa, Canada, on May 30 to promote the U.S.-Mexico-
Canada Agreement (USMCA).\207\ Williams acknowledged in her
public testimony that the Office of the Vice President had
``competing trips . . . for the same window.''\208\ Williams
elaborated that due to international travel by President Trump
and Vice President Pence, there was a ``narrow window'' within
which Vice President Pence was able to attend President
Zelensky's inauguration.\209\ Dr. Hill explained that the
President and Vice President cannot travel internationally at
the same time, testifying that Vice President Pence's
attendance at President Zelensky's inauguration was just
dependent on scheduling and she had no knowledge that the Vice
President was directed not to attend the inauguration.\210\
---------------------------------------------------------------------------
\207\See The White House, Joint Statement by Vice President Mike
Pence and Canadian Prime Minister Justin Trudeau (May 30, 2019).
\208\Impeachment Inquiry: LTC Alexander Vindman and Ms. Jennifer
Williams, supra note 6.
\209\Id.
\210\``Impeachment Inquiry: Dr. Fiona Hill and Mr. David Holmes'':
Hearing before the H. Perm. Sel. Comm. on Intelligence, 116th Cong.
(2019); Hill deposition, supra note 12, at 185 (``It depended on the
date. I mean, we were hoping, you know, if others couldn't attend that
[Vice President Pence] could. I mean, I myself couldn't attend because
of the date, that the way that it--again, there were several different
dates, and then the date that was announced in May was very quickly
announced.''); id. at 316 (``And it was going to be very tight for the
Vice President to make it for the inauguration. So I, you know, have no
knowledge that he was actually ordered not to go, but it was going to
be very difficult for him to go.'').
---------------------------------------------------------------------------
Ultimately, on May 16, the Ukrainian Parliament scheduled
President Zelensky's inauguration for only four days later, May
20, which was a date not offered by the Vice President's
Office.\211\ Williams testified that this scheduling posed a
problem: ``To be honest, we hadn't looked that closely at the
Vice President's schedule before the President's trip [to
Japan] at the end of May just because we weren't expecting the
Ukrainians to look at that timeframe.''\212\ Kent explained
that this short notice sent the State Department
``scrambl[ing]'' to find a U.S. official to lead the
delegation.\213\ Secretary Pompeo was traveling, so the
decision was made to ask Secretary Perry to lead the
delegation.\214\ On May 20, the day of President Zelensky's
inauguration, Vice President Pence attended an event in
Jacksonville, Florida, to promote the USMCA.\215\
---------------------------------------------------------------------------
\211\Kent deposition, supra note 65, at 189.
\212\Williams deposition, supra note 73, at 60.
\213\Kent deposition, supra note 65, at 190.
\214\Id. at 190-91.
\215\The White House, Remarks by Vice President Pence at America
First Policies Event USMCA: A Better Deal for American Worker (May 20,
2019).
---------------------------------------------------------------------------
9. President Trump and President Zelensky met during the United Nations
General Assembly in September 2019 without any Ukrainian action
to investigate President Trump's political rival
On September 25, President Trump and President Zelensky met
during the U.N. General Assembly in New York.\216\ Ambassador
Volker said that President Trump and President Zelensky had a
``positive'' meeting. He testified:
---------------------------------------------------------------------------
\216\Remarks by President Trump and President Zelensky of Ukraine
Before Bilateral Meeting, supra note 40.
Q. Turning back to President Trump's skepticism of
Ukraine and the corruption there, do you think you made
any inroads in convincing him that Zelensky was a good
partner?
A. I do. I do. I attended the President's meeting
with President Zelensky in New York on, I guess it was
the 25th of September. And I could see the body
language and the chemistry between them was positive,
and I felt that this is what we needed all along.\217\
---------------------------------------------------------------------------
\217\Volker transcribed interview, supra note 60, at 87-88.
Ambassador Taylor testified that the meeting was ``good''
and President Trump ``left pleased that they had finally met
face to face.''\218\ Ambassador Taylor said there was no
discussion about investigations during the September 25
meeting.\219\
---------------------------------------------------------------------------
\218\Taylor deposition, supra note 47, at 288.
\219\Id.
---------------------------------------------------------------------------
Notably, President Trump and President Zelensky met in New
York without Ukraine ever investigating President Trump's
political rival.
* * *
The evidence presented in the impeachment inquiry does not
support the Democrats' assertion that President Trump sought to
withhold a White House meeting to pressure the Ukrainian
government to investigate the President's political rival.
President Trump and President Zelensky met in September 2019
without Ukraine ever investigating Vice President Biden or
Hunter Biden.
Contrary to the assertions in the anonymous whistleblower
complaint, the evidence shows that President Trump has a
genuine, deep-seated, and reasonable skepticism of Ukraine
given its history of pervasive corruption. In addition, U.S.
foreign policy officials were divided on whether President
Trump should meet with President Zelensky, in part due to
President Zelensky's close association with an oligarch accused
of embezzlement. In May 2019, President Trump formally invited
President Zelensky to the White House. For several months,
there were attempts to arrange a meeting between President
Trump and President Zelensky. Although President Trump
indicated during their July 25 call that they may meet in
Warsaw in September, Hurricane Dorian forced President Trump to
cancel. Vice President Pence met with President Zelensky
instead. President Trump and President Zelensky ultimately met
without Ukraine ever investigating any of President Trump's
political rival.
C. THE EVIDENCE DOES NOT ESTABLISH THAT PRESIDENT TRUMP WITHHELD U.S.
SECURITY ASSISTANCE TO UKRAINE TO PRESSURE UKRAINE TO INVESTIGATE THE
PRESIDENT'S POLITICAL RIVAL FOR THE PURPOSE OF BENEFITING HIM IN THE
2020 ELECTION
Democrats allege that President Trump conspired to withhold
U.S. security assistance to Ukraine as a way of pressuring
Ukraine to investigate President Trump's political rival.\220\
Here, too, the evidence obtained during the impeachment inquiry
does not support this allegation.
---------------------------------------------------------------------------
\220\See, e.g., Rishika Dugyala, Democratic Senator: `No doubt'
Ukraine `felt pressure', Politico (Oct. 27, 2019).
---------------------------------------------------------------------------
The evidence suggests a far less nefarious reality. Just as
President Trump holds a deep-seated skepticism about Ukraine,
the President is highly skeptical of foreign assistance. Any
examination of the President's actions must consider this
factor. President Trump has been vocal about his view that U.S.
allies in Europe should contribute a fair share for regional
security. As Ukrainian government officials worked with U.S.
officials to convince President Trump that President Zelensky
was serious about reform and worthy of U.S. assistance, they
discussed a public statement conveying that commitment.
Although the security assistance was paused in July, it is not
unusual for U.S. foreign assistance to become delayed.
Assistance to Ukraine has been delayed before. Most telling,
the Trump Administration has been stronger than the Obama
Administration in providing Ukraine with lethal defensive arms
to deter Russian aggression.
The Democrats' witnesses testified that U.S. security
assistance to Ukraine was not conditioned on Ukrainian action
on investigations. U.S. officials did not raise the issue of
the delay in security assistance with Ukrainian officials
because they viewed it as a bureaucratic issue that would be
resolved. The Ukrainian government in Kyiv was not even aware
that the aid was paused until it was reported publicly, only
two weeks before the aid was released, as senior U.S. officials
confidently predicted it would be. Ultimately, the U.S.
disbursed security assistance to Ukraine without Ukraine ever
investigating Vice Present Biden or his son, Hunter Biden.
1. President Trump has been skeptical about U.S. taxpayer-funded
foreign assistance
Evidence suggests that President Trump is generally
skeptical of U.S. taxpayer-funded foreign assistance. President
Trump's skepticism of U.S. taxpayer-funded foreign assistance
is long-standing. On June 16, 2015, when President Trump
announced his candidacy for president, he said:
It is time to stop sending jobs overseas through bad
foreign trade deals. We will renegotiate our trade
deals with the toughest negotiators our country has . .
. the ones who have actually read ``The Art of the
Deal'' and know how to make great deals for our
country.
It is time to close loopholes for Wall Street and
create far more opportunities for small businesses.
It is necessary that we invest in our infrastructure,
stop sending foreign aid to countries that hate us and
use that money to rebuild our tunnels, roads, bridges
and schools--and nobody can do that better than
me.\221\
---------------------------------------------------------------------------
\221\Donald Trump, Announcement of Candidacy for President of the
United States, in New York, N.Y. (June 16, 2015) (emphasis added).
During the 2016 presidential campaign, then-candidate Trump
continued to express his skepticism of U.S. taxpayer-funded
foreign aid. In March 2016, he told the Washington Post, ``I do
think it's a different world today and I don't think we should
be nation building anymore. I think it's proven not to work.
And we have a different country than we did then. You know we
have 19 trillion dollars in debt. . . . And I just think we
have to rebuild our country.''\222\ That same month, then-
candidate Trump told the New York Times, ``We're going to be
friendly with everybody, but we're not going to be taken
advantage of by anybody. . . . I think we'll be very worldview
[sic], but we're not going to be ripped off anymore by all of
these countries.''\223\
---------------------------------------------------------------------------
\222\A transcript of Donald Trump's meeting with the Washington
Post editorial board, Wash. Post, Mar. 21, 2016.
\223\Maggie Haberman & David Sanger, Transcript: Donald Trump
Expounds on His Foreign Policy Views, N.Y. Times, Mar. 26, 2016.
---------------------------------------------------------------------------
As president, President Trump has sought to reduce U.S.
taxpayer-funded foreign assistance. In his fiscal year 2018
budget proposal, the President proposed ``to reduce or end
direct funding for international programs and organizations
whose missions do not substantially advance U.S. foreign policy
interests. The Budget also renews attention on the appropriate
U.S. share of international spending . . . for many other
global issues where the United States currently pays more than
its fair share.''\224\ The President's 2020 budget proposal--
submitted in March 2019--likewise ``supports America's reliable
allies, but reflects a new approach toward countries that have
taken unfair advantage of the United States' generosity.''\225\
The President's Budget specifically sought ``greater
accountability by international partners along with donor
burden sharing that is more balanced.''\226\
---------------------------------------------------------------------------
\224\Budget of the U.S. Government Fiscal Year 2018 at 13 (May 23,
2017).
\225\Budget of the U.S. Government Fiscal Year 2020 at 71 (Mar. 11,
2019).
\226\Id. at 73.
---------------------------------------------------------------------------
Testimony from the Democrats' witnesses reinforces the
President's skepticism of foreign assistance. Ambassador
Taylor, U.S. charge a.i. in Kyiv, testified that on August 22,
2019, he had a phone conversation with NSC Senior Director for
Europe Tim Morrison in which Morrison said that the ``President
doesn't want to provide any assistance at all.''\227\ Morrison
testified that President Trump generally does not like giving
foreign aid to other countries and believes U.S. ``ought not''
to be the only country providing security assistance.\228\ LTC
Vindman, the NSC director handling Ukraine policy, similarly
testified that President Trump is skeptical of foreign
aid.\229\
---------------------------------------------------------------------------
\227\Taylor deposition, supra note 47, at 33.
\228\Morrison deposition, supra note 12, at 78-79, 132.
\229\Impeachment Inquiry: LTC Alexander Vindman and Ms. Jennifer
Williams, supra note 6.
---------------------------------------------------------------------------
In fact, evidence suggests that President Trump sought to
review U.S. taxpayer-funded foreign assistance across the
board. Ambassador David Hale, the Under Secretary of State for
Political Affairs, testified that the Trump Administration was
undertaking a ``review'' of foreign assistance globally.\230\
He testified:
---------------------------------------------------------------------------
\230\Deposition of Ambassador David Hale, in Wash., D.C., at 80
(Nov. 6, 2019) [hereinafter ``Hale deposition''].
Q. You mentioned that there was a foreign assistance
review undergoing--
A. Yes.
Q. --at that time. What can you tell us about that?
A. Well, it had been going on for quite a while, and
the concept, you know, the administration did not want
to take a, sort of, business-as-usual approach to
foreign assistance, a feeling that once a country has
received a certain assistance package, it's a--it's
something that continues forever. It's very difficult
to end those programs and to make sure that we have a
very rigorous measure of why we are providing the
assistance.
We didn't go to zero base, but almost a zero-based
concept that each assistance program and each country
that receives the program had to be evaluated that they
were actually worthy beneficiaries of our assistance;
that the program made sense; that we have embarked on,
you know, calling everything that we do around the
world countering violent extremism, but, rather, that's
actually focused on tangible and proven means to deal
with extremist problems; that we avoid nation-building
strategies; and that we not provide assistance to
countries that are lost to us in terms of policy, to
our adversaries.
Q. And do you know if the President also had concerns
about whether the allies of Ukraine, in this example,
were contributing their fair share?
A. That's another factor in the foreign affairs
review is appropriate burden sharing. But it was not,
in the deputies committee meeting, OMB [the U.S. Office
of Management and Budget] did not really explain why
they were taking the position other than they had been
directed to do so.
Q. Okay. You are aware of the President's skeptical
views on foreign assistance? Right?
A. Absolutely.
Q. And that's a genuinely held belief, correct?
A. It is what guided the foreign affairs review.
Q. Okay. It's not just related to Ukraine?
A. Absolutely not. It's global in nature.\231\
---------------------------------------------------------------------------
\231\Id. at 81-83.
---------------------------------------------------------------------------
2. President Trump has been clear and consistent in his view that
Europe should pay its fair share for regional defense
Since his 2016 presidential campaign, President Trump has
emphasized his view that U.S. foreign assistance should be
spent wisely and cautiously. As President, he has continued to
be critical of sending U.S. taxpayer dollars to foreign
countries and asked our allies to share the financial burden
for international stewardship.
In a March 2016 interview with the New York Times, then-
candidate Trump said: ``Now, I'm a person that--you notice I
talk about economics quite a bit [in foreign policy] because it
is about economics, because we don't have money anymore because
we've been taking care of so many people in so many different
forms that we don't have money.''\232\ Then-candidate Trump
elaborated about the North Atlantic Treaty Organization (NATO),
a collective defense alliance between the U.S., Canada, and
European countries:
---------------------------------------------------------------------------
\232\Haberman & Sanger, supra note 223.
I mean, we defend everybody. (Laughs.) We defend
everybody. No matter who it is, we defend everybody.
We're defending the world. But we owe, soon, it's soon
to be $21 trillion. You know, it's 19 now but it's soon
to be $21 trillion. But we defend everybody. When in
doubt, come to the United States. We'll defend you. In
some cases free of charge. And in all cases for a
substantially, you know, greater amount. We spend a
substantially greater amount than what the people are
paying.\233\
---------------------------------------------------------------------------
\233\Id.
That same month, candidate Trump spoke to CBS News about
U.S. spending to NATO. He said then:
NATO was set up when we were a richer country. We're
not a rich country anymore. We're borrowing, we're
borrowing all of this money . . . NATO is costing us a
fortune and yes, we're protecting Europe with NATO but
we're spending a lot of money. Number one, I think the
distribution of costs has to be changed.\234\
---------------------------------------------------------------------------
\234\Shayna Freisleben, A Guide to Trump's Past Comments about
NATO, CBS News, (Apr. 12, 2017).
As president, President Trump has continued to press
European allies to contribute more NATO defense. For example,
---------------------------------------------------------------------------
in a tweet on July 9, 2018, President Trump wrote:
The United States is spending far more on NATO than
any other Country. This is not fair, nor is it
acceptable. While these countries have been increasing
their contributions since I took office, they must do
much more. Germany is at 1%, the U.S. is at 4%, and
NATO benefits. . . . \235\
\235\Donald J. Trump (@realDonaldTrump), Twitter (Jul. 9, 2018,
7:55 a m.), https://twitter.com/realDonaldTrump/status/
1016289620596789248.
---------------------------------------------------------------------------
Jens Stoltenberg, the NATO Secretary-General, acknowledged
in an interview that President Trump's message has ``helped''
NATO member countries to increase defense spending, commending
the President on ``his strong message on burden sharing.''\236\
---------------------------------------------------------------------------
\236\David Greene, After Trump's NATO Criticism, Countries Spend
More on Defense, NPR.org, (May 18, 2018).
---------------------------------------------------------------------------
NSC Senior Director Tim Morrison explained the President's
specific views about burden sharing regarding Ukraine during
his public testimony. He testified:
Q. And the President was also interested, was he not,
in better understanding opportunities for increased
burden sharing among the Europeans?
A. Yes.
Q. And what can you tell us about that?
A. The President was concerned that the United States
seemed to--to bear the exclusive brunt of security
assistance to Ukraine. He wanted to see the Europeans
step up and contribute more security assistance.
Q. And was there any interagency activity, whether it
be with the State Department for or the Defense
Department, in coordination by the National Security
Council, to look into that a little bit for the
President?
A. We were surveying the data to understand who was
contributing what and sort of in what categories.
Q. And so the President's evinced concerns, the
interagency tried to address them?
A. Yes.\237\
---------------------------------------------------------------------------
\237\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8.
In his public testimony, LTC Vindman confirmed the
President's concerns about U.S. allies sharing the burden for
mutual defense.\238\
---------------------------------------------------------------------------
\238\Impeachment Inquiry: LTC Alexander Vindman and Ms. Jennifer
Williams, supra note 6.
---------------------------------------------------------------------------
3. U.S. foreign aid is often conditioned or paused, and U.S. security
assistance to Ukraine has been paused before
U.S. taxpayer-funded assistance to foreign governments is
not an entitlement. The United States often conditions foreign
aid on actions by recipient nations. In addition, foreign aid
can, and often does, get delayed for various reasons. The pause
of U.S. security assistance to Ukraine in this case is
therefore not presumptive evidence of misconduct.
The United States conditions foreign assistance to a number
of nations as a result of concerns about corruption, human
rights abuses, or other issues. On October 31, 2019, the Trump
Administration announced that it would withhold $105 million in
security assistance for Lebanon shortly after the resignation
of Lebanese Prime Minister Saad al-Hariri.\239\ In September
2019, the State Department announced that it was withholding
$160 million in aid from Afghanistan, citing corruption.\240\
In June 2019, the Administration told Congress that it would
reallocate $370 million in aid to Central American nations and
suspend an additional $180 million in an effort to incentivize
those countries to reduce the number of migrants reaching the
U.S. border.\241\ In 2017, President Trump froze $195 million
in security assistance to Egypt--one of the largest recipients
of U.S. aid--due to frustration with the country's poor track
record on human rights and a recently enacted law regarding
nongovernmental organizations.\242\
---------------------------------------------------------------------------
\239\Patricia Zengerle & Mike Stone, Exclusive: U.S. withholding
$105 million in security aid for Lebanon-sources, Reuters, Oct. 31,
2019.
\240\Tal Axelrod, US withholds $160M in Afghan aid citing
corruption, The Hill, Sept. 9, 2019.
\241\Lesley Wroughton & Patricia Zengerle, As promised, Trump
slashes aid to Central America over migrants, Reuters, Jun. 17, 2019.
\242\Gardiner Harris & Declan Walsh, U.S. Slaps Egypt on Human
Rights Record and Ties to North Korea, N.Y. Times, Aug. 22, 2017.
---------------------------------------------------------------------------
The Democrats' witnesses explained that it is not unusual
for foreign aid to be paused or even withheld. Ambassador
Taylor testified that U.S. aid to foreign countries can be
paused in various instances, such as a Congressional hold.\243\
Ambassador Volker testified that foreign assistance can be
delayed for a multitude of reasons and that ``this hold on
security assistance [to Ukraine] was not significant.''\244\
Ambassador Volker elaborated during his public testimony:
---------------------------------------------------------------------------
\243\Taylor deposition, supra note 47, at 170-71.
\244\Volker transcribed interview, supra note 60, at 78-80.
Q. Ambassador Volker, you testified during your
deposition that aid, in fact, does get held up from
time-to-time for a whole assortment of reasons. Is that
your understanding?
A. That is true.
Q. And sometimes the holdups are rooted in something
at OMB, sometimes it's at the Defense Department,
sometimes it's at the State Department, sometimes it's
on the Hill. Is that correct?
A. That is correct.
Q. And so, when the aid was held up for 55 days for
Ukraine, that didn't in and of itself strike you as
uncommon?
A. No. It's something that had happened in my career
in the past. I had seen holdups of assistance. I just
assumed it was part of the decision-making process.
Somebody had an objection, and we had to overcome
it.\245\
---------------------------------------------------------------------------
\245\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8.
Ambassador David Hale, the Under Secretary of State for
Political Affairs, agreed that U.S. taxpayer-funded aid has
been paused from several countries around the world for various
reasons and, in some cases, for unknown reasons.\246\
Ambassador Hale elaborated:
---------------------------------------------------------------------------
\246\``Impeachment Inquiry: Ms. Laura Cooper and Mr. David Hale'':
Hearing before the H. Perm. Sel. Comm. on Intelligence, 116th Cong.
(2019).
We've often heard at the State Department that the
President of the United States wants to make sure that
foreign assistance is reviewed scrupulously to make
sure that it's truly in U.S. national interests, and
that we evaluate it continuously, so that it meets
certain criteria that the President has
established.\247\
---------------------------------------------------------------------------
\247\Id.
Ambassador Hale explained that the NSC launched a review of
U.S. foreign assistance to ensure U.S. taxpayer money was spent
efficiently and to advance ``[t]he principle of burden sharing
by allies and other like-minded states.''\248\ Dr. Hill, the
NSC's Senior Director for Europe, testified that as she was
leaving NSC in July 2019, ``there had been more scrutiny'' to
assistance:
---------------------------------------------------------------------------
\248\Id.
As I understood them, there had been a directive for
whole-scale review of our foreign policy, foreign
policy assistance, and the ties between our foreign
policy objectives and the assistance. This had been
going on actually for many months. And in the period
when I was wrapping up my time there, there had been
more scrutiny than specific assistance to specific sets
of countries as a result of that overall view--
review.\249\
---------------------------------------------------------------------------
\249\Impeachment Inquiry: Dr. Fiona Hill and Mr. David Holmes,
supra note 210.
The Democrats' witnesses also described how U.S. foreign
assistance to Ukraine has been delayed in the past. Dr. Hill
testified that security assistance to Ukraine has been paused
before ``at multiple junctures'' during her time at NSC, even
with bipartisan support for the assistance.\250\ Dr. Hill
testified:
---------------------------------------------------------------------------
\250\Hill deposition, supra note 12, at 304.
Q. On the issue of the security assistance freeze,
had assistance for Ukraine ever been held up before
during your time at NSC?
A. Yes.
Q. For what--and when was that?
A. At multiple junctures. You know, it gets back to
the question that [Republican staff] asked before.
There's often a question raised about assistance, you
know, a range of assistance--
Q. But for Ukraine specifically?
A. Yeah, that's correct.
Q. Okay. Even though there's been bipartisan support
for the assistance?
A. Correct.\251\
---------------------------------------------------------------------------
\251\Id. at 303-04.
Catherine Croft, a former NSC director, offered an example
in her deposition, explaining that OMB paused the sale of
Javelin missiles to Ukraine in November or December 2017.\252\
This pause, too, was eventually lifted and Ukraine received the
missiles.\253\
---------------------------------------------------------------------------
\252\Croft deposition, supra note 60, at 67.
\253\Id. at 68.
---------------------------------------------------------------------------
4. Despite President Trump's skepticism, the Trump Administration's
policies have shown greater commitment and support to Ukraine
than those of the Obama Administration
Several of the Democrats' witnesses testified that
President Trump has taken a stronger stance in supporting
Ukraine. Dr. Hill testified that President Trump's decision to
support Ukraine with lethal defensive weapons was a more robust
policy than under the Obama Administration.\254\ Ambassador
Taylor characterized President Trump's policy as a
``substantial improvement.''\255\ Ambassador Yovanovitch
agreed, testifying:
---------------------------------------------------------------------------
\254\Hill deposition, supra note 12, at 196.
\255\Taylor deposition, supra note 47, at 155.
And I actually felt that in the 3 years that I was
there, partly because of my efforts, but also the
interagency team, and President Trump's decision to
provide lethal weapons to Ukraine, that our policy
actually got stronger over the three last 3 years
[sic].\256\
---------------------------------------------------------------------------
\256\Yovanovitch deposition, supra note 115, at 140-41 (emphasis
added).
---------------------------------------------------------------------------
She added:
Q. Can you testify to the difference [to] the changes
in aid to Ukraine with the new administration starting
in 2017? The different initiatives, you know, as far as
providing lethal weapons and--
A. Yeah. Well, I think that most of the assistance
programs that we had, you know, continued, and due to
the generosity of the Congress actually were increased.
And so that was a really positive thing, I think, for
Ukraine and for us. In terms of lethal assistance, we
all felt it was very significant that this
administration made the decision to provide lethal
weapons to Ukraine.\257\
---------------------------------------------------------------------------
\257\Id. at 144.
Ambassador Volker also explained how President Trump's
policies of providing lethal defensive assistance to Ukraine
have been ``extremely helpful'' in deterring Russian aggression
in Ukraine.\258\ He explained:
---------------------------------------------------------------------------
\258\Volker transcribed interview, supra note 60, at 87.
So there has been U.S. assistance provided to Ukraine
for some time, under the Bush administration, Obama
administration, and now under the Trump administration.
I was particularly interested in the security
assistance and lethal defensive weapons. The reason for
this is this was something that the Obama
administration did not approve. They did not want to
send lethal defensive arms to Ukraine.
I fundamentally disagreed with that decision. It is
not my--you know, I was just a private citizen, but
that's my opinion. I thought that this is a country
that is defending itself against Russian aggression.
They had their military largely destroyed by Russia in
2014 and '15 and needed the help. And humanitarian
assistance is great, and nonlethal assistance, you
know, MREs and blankets and all, that's fine, but if
you're being attacked with mortars and artilleries and
tanks, you need to be able to fight back.
The argument against this assistance being provided,
the lethal defensive assistance, was that it would be
provocative and could escalate the fighting with
Russia. I had a fundamentally different view that if we
did not provide it, it's an inducement to Russia to
keep up the aggression, and there's no deterrence of
Russia from trying to go further into Ukraine. So I
believed it was important to help them rebuild their
defensive capabilities and to deter Russia. It's also a
symbol of U.S. support.
So I argued very strongly from the time I was
appointed by Secretary Tillerson that the rationale for
why we were not providing lethal defensive assistance
to me doesn't hold water and that is a much stronger
rationale that we should be doing it.
That eventually became administration policy. It took
a while, but Secretary Tillerson, you know, he wanted
to think it through, see how that would play out. How
would the allies react to this? How would Russia react
to this? How would the Ukrainians handle it? And we
managed those issues. Secretary Mattis was very much in
favor. And they met. I did not meet with the President
about this, but they met with the President and the
President approved it.\259\
---------------------------------------------------------------------------
\259\Id. at 84-86.
---------------------------------------------------------------------------
5. Although security assistance to Ukraine was paused in July 2019,
several witnesses testified that U.S. security assistance was
not linked to any Ukrainian action on investigations
Several witnesses testified that U.S. security assistance
was not linked to or conditioned on any Ukrainian action to
investigate President Trump's political rival. Even after U.S.
officials learned in early- to mid-July that the security
assistance had been paused for unknown reasons, evidence
suggests that there was not a link between U.S. security
assistance and Ukrainian action to investigate President
Trump's political rival.
LTC Vindman testified that he learned about a pause on
security assistance on July 3.\260\ Morrison said he learned of
the pause around July 15.\261\ According to Ambassador Taylor,
he learned via conference call on July 18 that OMB had paused
the security assistance to Ukraine.\262\ Ambassador Taylor
relayed that according to the OMB representative on the call,
the pause was done at the direction of the President and the
chief of staff.\263\ Although a reason was not provided for the
pause at the time, OMB official Mark Sandy testified that he
learned in early September 2019 that the pause was related ``to
the President's concern about other countries contributing more
to Ukraine.''\264\
---------------------------------------------------------------------------
\260\Vindman deposition, supra note 12, at 178.
\261\ Morrison deposition, supra note 12, at 16.
\262\Taylor deposition, supra note 47, at 27.
\263\Id. at 28.
\264\Deposition of Mark Sandy, in Wash., D.C., at 42 (Nov. 16,
2019). Sandy testified that in early September, OMB received ``requests
for information on what additional countries were contributing to
Ukraine.'' Id. at 44. OMB provided that information sometime in the
first week of September. Id. at 82.
---------------------------------------------------------------------------
Despite the pause, testimony from the Democrats' witnesses
suggests the assistance was not linked to Ukraine investigating
President Trump's political rival. Ambassador Volker, the key
intermediary between the Ukrainian government and U.S.
officials, testified that he was aware of no quid pro quo and
that the Ukrainian government never raised concerns to him
about a quid pro quo.\265\ He said that when Ambassador Taylor
raised questions about the appearance of a quid pro quo, ``I
discussed with him that there is no linkage here. I view this
as an internal thing, and we are going to get it fixed.''\266\
Ambassador Volker further explained that even if Ukrainians
perceived the aid was linked to investigations, they ``never
raised'' that possibility with him.\267\ Ambassador Volker
believed that given the trust he had developed with the
Ukrainian government, the Ukrainians would have come to him
with concerns about the security assistance.\268\
---------------------------------------------------------------------------
\265\ Volker transcribed interview, supra note 60, at 170, 300-01.
\266\Id. at 130.
\267\Id. at 284.
\268\Id. at 300-01.
---------------------------------------------------------------------------
House Intelligence Committee Chairman Adam Schiff attempted
to get Ambassador Volker to testify in his closed-door
deposition that the Ukrainian government would have felt
pressure to investigate President Trump's political rival once
they learned that the security assistance was delayed.\269\
Ambassador Volker refused to accept Chairman Schiff's
conclusion. He testified:
---------------------------------------------------------------------------
\269\ Id. at 124-28.
Q. The request is made. And even though the
suspension may have occurred earlier, the request is
made to investigate the Bidens, and then Ukraine
learns, for mysterious reasons, hundreds of millions in
military support is being withheld. Do I have the
chronology correct?
A. Yes.
Q. At the point they learned that, wouldn't that give
them added urgency to meet the President's request on
the Bidens?
A. I don't know the answer to that. The--
Q. Ambassador--
A. When that--no--
Q. --as a career diplomat, you can't venture--
A. But, Congressman, this is why I'm trying to the
say the context is different, because at the time they
learned that, if we assume it's August 29th, they had
just had a visit from the National Security Advisor,
John Bolton. That's a high level meeting already. He
was recommending and working on scheduling the visit of
President Zelensky to Washington. We were also working
on a bilateral meeting to take place in Warsaw on the
margins of a commemoration on the beginning of World
War II. And in that context, I think the Ukrainians
felt like things are going the right direction, and
they had not done anything on--they had not done
anything on an investigation, they had not done
anything on a statement, and things were ramping up in
terms of their engagement with the administration. So I
think they were actually feeling pretty good by then.
Q. Ambassador, I find it remarkable as a career
diplomat that you have difficulty acknowledging that
when Ukraine learned that their aid had been suspended
for unknown reasons, that this wouldn't add additional
urgency to a request by the President of the United
States. I find that remarkable.\270\
---------------------------------------------------------------------------
\270\Id. at 126-28 (question and answer with Chairman Adam Schiff).
During his public testimony, in an exchange with Rep. Mike
Turner, Ambassador Volker reiterated that there was no linkage
between U.S. security assistance and investigations. He
---------------------------------------------------------------------------
testified:
Q. Did the President of the United States ever say to
you that he was not going to allow aid from the United
States to go to the Ukraine unless there were
investigations into Burisma, the Bidens, or the 2016
elections?
A. No, he did not.
Q. Did the Ukrainians ever tell you that they
understood that they would not get a meeting with the
President of the United States, a phone call with the
President of the United States, military aid or foreign
aid from the United States unless they undertook
investigations of Burisma, the Bidens, or the 2016
elections?
A. No, they did not.
Q. So I would assume, then, that the Ukrainians never
told you that [Mayor] Giuliani had told them that, in
order to get a meeting with the President, a phone call
with the President, military aid or foreign aid from
the United States, that they would have to do these
investigations.
A. No.\271\
---------------------------------------------------------------------------
\271\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8.
Similarly, Deputy Assistant Secretary Kent testified in his
closed-door deposition that he also did not ``associate'' the
security assistance to investigations.''\272\ Kent relayed how
Ambassador Taylor had told him that Ambassador Sondland was
``pushing'' President Zelensky to give an interview during the
Yalta European Strategy (YES) conference in Kyiv in mid-
September.\273\ Ambassador Taylor told Kent that the ``hope''
was if President Zelensky gave a public signal on
investigations, the security assistance pause would lift;
however, Ambassador Taylor asserted that ``both Tim Morrison
and Gordon Sondland said that they did not believe the two
issues were linked.''\274\
---------------------------------------------------------------------------
\272\Kent deposition, supra note 65, at 323.
\273\Id. at 269.
\274\Id.; see also id. at 323.
---------------------------------------------------------------------------
During his sworn deposition, Ambassador Sondland testified
that he could not recall ``any discussions with the White House
about withholding U.S. security assistance from Ukraine in
exchange for assistance with President Trump's 2020 election
campaign.''\275\ Ambassador Sondland testified that he was
``never'' aware of any preconditions on the delay of security
assistance to Ukraine, or that the aid was tied to Ukraine
undertaking any investigations.\276\
---------------------------------------------------------------------------
\275\Sondland deposition, supra note 51, at 35.
\276\Id. at 197.
---------------------------------------------------------------------------
Although media reports allege that Ambassador Sondland
later recanted this testimony to ``confirm'' a quid pro
quo,\277\ those reports exaggerate the supplemental information
that Ambassador Sondland later provided. In a written
supplement to his deposition testimony, Ambassador Sondland
asserted that by the beginning of September 2019, ``in the
absence of any credible explanation for the suspension of aid,
[he] presumed that the aid suspension had become linked to the
proposed anti-corruption statement.''\278\ Ambassador Sondland
asserted that he spoke to Yermak in Warsaw on September 1 and
conveyed that U.S. aid would not ``likely'' flow until Ukraine
provided an anti-corruption statement.\279\ Yermak, however, in
an interview with Bloomberg, disputed Ambassador Sondland's
account, saying that he ``bumped into'' Ambassador Sondland and
``doesn't remember any reference to military aid.''\280\
---------------------------------------------------------------------------
\277\See, e.g., Andrew Desiderio & Kyle Cheney, Sondland reverses
himself on Ukraine, confirming quid pro quo, Politico, Nov. 5, 2019.
\278\Declaration of Ambassador Gordon D. Sondland at para.4 (Nov.
4, 2019) (emphasis added) [hereinafter ``Sondland declaration''].
\279\ Id. at para.5.
\280\Stephanie Baker & Daryna Krasnolutska, Ukraine's fraught
summer included a rogue embassy in Washington, Bloomberg, Nov. 22,
2019.
---------------------------------------------------------------------------
Ambassador Sondland's addendum does not prove a nefarious
quid pro quo. At most, and even discounting Yermak's subsequent
denial, the addendum shows that as of September 1, Ambassador
Sondland assumed there was a connection and relayed this
assumption to Yermak--an assumption that the President would
later tell Ambassador Sondland was inaccurate.\281\
---------------------------------------------------------------------------
\281\See infra note 297 and accompanying text.
---------------------------------------------------------------------------
During his deposition, Ambassador Taylor testified that he
spoke by phone with Ambassador Sondland on September 8.\282\
Ambassador Taylor recounted how Ambassador Sondland told him
that President Trump wanted President Zelensky to ``clear
things up and do it in public'' but there was no ``quid pro
quo.''\283\
---------------------------------------------------------------------------
\282\Taylor deposition, supra note 47, at 39.
\283\Id.
---------------------------------------------------------------------------
On September 9, Ambassador Sondland texted Ambassador
Volker and Ambassador Taylor: ``The President has been crystal
clear: no quid pro quo's [sic] of any kind. The President is
trying to evaluate whether Ukraine is truly going to adopt the
transparency and reforms that President Zelensky promised
during his campaign.''\284\ When asked about this text message
during his transcribed interview, Ambassador Volker testified
that ``Gordon was repeating here what we all understood.''\285\
---------------------------------------------------------------------------
\284\Text message from Gordon Sondland to William Taylor and Kurt
Volker (Sept. 9, 2019, 5:19 a.m.) [KV00000053].
\285\Volker transcribed interview, supra note 60, at 170.
---------------------------------------------------------------------------
In his public testimony, Ambassador Taylor clarified his
statement from his closed-door deposition that he had ``clear
understanding'' that Ukraine would not receive security
assistance until President Zelensky committed to
investigations.\286\ He explained his ``clear understanding''
came from Ambassador Sondland, who acknowledged that he had
presumed there to be a linkage. In an exchange with Rep. Jim
Jordan, Ambassador Taylor testified:
---------------------------------------------------------------------------
\286\Impeachment Inquiry: Ambassador William B. Taylor and Mr.
George Kent, supra note 2.
Q. So what I'm wondering is, where did you get this
clear understanding?
A. As I testified, Mr. Jordan, this came from
Ambassador Sondland.
* * *
Q. You said you got this from Ambassador Sondland.
A. That is correct. Ambassador Sondland also said he
had talked to President Zelensky and Mr. Yermak and had
told them that, although this was not a quid pro quo,
if President Zelensky did not clear things up in
public, we would be at a stalemate. That was the--that
was one point.
* * *
Q. All right. So, again, just to recap, you had three
meetings with President Zelensky; no linkage in those
three meetings came up. President Zelensky didn't
announce that he was going [to] do any investigation of
the Bidens or Burisma before the aid was released. He
didn't--
A. That was President--
Q. --do a tweet, didn't do anything on CNN, didn't do
any of that. President Zelensky. Excuse me.
A. Yeah. Right.
Q. And then what you have in front of you is an
addendum that Mr. Sondland made to his testimony that
we got a couple weeks ago. It says, ``Declaration of
Ambassador Gordon Sondland. I, Gordon Sondland, do
hereby swear and affirm as follows.'' I want you to
look at point number two, bullet point number two,
second sentence. ``Ambassador Taylor recalls that Mr.
Morrison told Ambassador Taylor that I told Mr.
Morrison that I conveyed this message to Mr. Yermak on
September 1st, 2019, in connection with Vice President
Pence's visit to Warsaw and a meeting with President
Zelensky.'' Now, this is his clarification. Let me read
it one more time. ``Ambassador Taylor recalls that Mr.
Morrison told Ambassador Taylor that I told Mr.
Morrison that I had conveyed this message to Mr. Yermak
on September 1st, 2019, in connection with Vice
President Pence's visit to Warsaw and a meeting with
President Zelensky.'' We've got six people having four
conversations in one sentence, and you just told me
this is where you got your clear understanding, which--
I mean, even though you had three opportunities with
President Zelensky for him to tell you, ``You know
what? We're going to do these investigations to get the
aid,'' he didn't tell you, three different times. Never
makes an announcement, never tweets about it, never
does the CNN interview. Ambassador, you weren't on the
call, were you? The President--you didn't listen in on
President Trump's call and President Zelensky's call?
A. I did not.
Q. You never talked with Chief of Staff Mulvaney.
A. I never did.
Q. You never met the President.
A. That's correct.
Q. You had three meetings again with Zelensky and it
didn't come up.
A. And two of those, they had never heard about it,
as far as I know, so there was no reason for it to come
up.
Q. And President Zelensky never made an announcement.
This is what I can't believe. And you're their star
witness. You're their first witness.
A. Mr. Jordan--
Q. You're the guy. You're the guy based on this,
based on--I mean, I've seen church prayer chains that
are easier to understand than this.\287\
---------------------------------------------------------------------------
\287\Impeachment Inquiry: Ambassador William B. Taylor and Mr.
George Kent, supra note 2.
During his public testimony, Ambassador Sondland made clear
that no one had ever told him that the security assistance was
tied to Ukraine investigating the President's political rival.
In particular, Ambassador Sondland explained that ``President
Trump never told me directly that the aid was conditioned on
the meetings.''\288\ In an exchange with Rep. Turner,
Ambassador Sondland elaborated:
---------------------------------------------------------------------------
\288\Impeachment inquiry: Ambassador Gordon Sondland, supra note
56.
Q. What about the aid? [Ambassador Volker] says that
they weren't tied, that the aid was not tied
A. And I didn't say they were conclusively tied
either. I said I was presuming it.
Q. Okay. And so the President never told you they
were tied.
A. That is correct.
Q. So your testimony and [Ambassador Volker's]
testimony is consistent, and the President did not tie
aid to investigations.
A. That is correct.
* * *
Q. So no one told you, not just the President.
[Mayor] Giuliani didn't tell you. [Acting Chief of
Staff] Mulvaney didn't tell you. Nobody--[Secretary]
Pompeo didn't tell you. Nobody else on this planet told
you that Donald Trump was tying aid to these
investigations. Is that correct?
A. I think I already testified to that.
Q. No. Answer the question. Is it correct? No one on
this planet told you that Donald Trump was tying aid to
the investigations? Because if your answer is yes, then
the chairman is wrong and the headline on CNN is wrong.
No one on this planet told you that President Trump was
tying aid to investigations, yes or no?
A. Yes.\289\
---------------------------------------------------------------------------
\289\Id.
---------------------------------------------------------------------------
6. President Trump rejected any linkage between U.S. security
assistance and Ukrainian action on investigations
The evidence also shows that when President Trump was asked
about a potential linkage between U.S. security assistance and
Ukrainian investigations into the President's political rival,
the President vehemently denied any connection. This evidence
is persuasive because the President made the same denial twice
to two separate senior U.S. officials in private, where there
is no reason for the President to be anything less than
completely candid.
In an interview with the Wall Street Journal and a detailed
written submission to the impeachment inquiry, Senator Ron
Johnson, the Chairman of the Senate Foreign Relations
Subcommittee on Europe, disclosed that he spoke to President
Trump on August 31, after learning from Ambassador Sondland
that U.S. security assistance may be linked to Ukraine's
willingness to demonstrate its commitment to fight
corruption.\290\ Senator Johnson explained that his purpose for
calling President Trump was ``to inform President Trump of my
upcoming trip to Ukraine and to try to persuade him to
authorize me to tell [President] Zelensky that the hold would
be lifted on military aid.''\291\
---------------------------------------------------------------------------
\290\Letter from Sen. Johnson, supra note 138, at 5; Siobhan Hughes
& Rebecca Ballhaus, Trump, in August call with GOP Senator, denied
official's claim on Ukraine aid, Wall St. J., Oct. 4, 2019.
\291\Letter from Sen. Johnson, supra note 138, at 5.
---------------------------------------------------------------------------
Senator Johnson recounted that President Trump was ``not
prepared'' to lift the pause on security assistance to Ukraine,
citing Ukrainian corruption and frustration that Europe did not
share more of the burden.\292\ Echoing his continual statements
about U.S. allies sharing the financial burden for mutual
defense, President Trump told Senator Johnson: ``Ron, I talk to
Angela [Merkel, German chancellor] and ask her, why don't you
fund these things,' and she tells me, `because we know you
will.' We're schmucks, Ron. We're schmucks.''\293\
---------------------------------------------------------------------------
\292\ Id.
\293\ Id.
---------------------------------------------------------------------------
When Senator Johnson raised the potential of a linkage
between U.S. security assistance and investigations, President
Trump vehemently denied it.\294\ According to Senator Johnson,
---------------------------------------------------------------------------
\294\ Id.
Without hesitation, President Trump immediately
denied such an arrangement existed. As reported in the
Wall Street Journal, I quoted the President as saying,
``[Expletive deleted]--``No way. I would never do that.
Who told you that?'' I have accurately characterized
his reaction as adamant, vehement and angry--there was
more than one expletive that I have deleted.\295\
---------------------------------------------------------------------------
\295\ Id. (emphasis added).
At the end of the phone call, President Trump circled back
to Senator Johnson's request to release the pause on security
assistance. President Trump said: ``Ron, I understand your
position. We're reviewing it now, and you'll probably like my
final decision.''\296\ This conversation occurred on August 31,
well before the Democrats initiated their impeachment inquiry,
and undermines the assertion that the President fabricated
legitimate reasons for the pause in security assistance in
response to the Democrats' impeachment inquiry.
---------------------------------------------------------------------------
\296\Id.
---------------------------------------------------------------------------
During his deposition, Ambassador Sondland testified that
he called President Trump on September 9 and asked him ``What
do you want from Ukraine?'' The President's response was
``Nothing. There is no quid pro quo.''\297\ During his
deposition, Ambassador Sondland testified:
---------------------------------------------------------------------------
\297\Sondland deposition, supra note 51, at 106.
Q. So when you telephoned the President, tell us what
happened.
A. Well, from the time that the aid was help up until
I telephoned the President there were a lot of rumors
swirling around as to why the aid had been help up,
including they wanted a review, they wanted Europe to
do more. There were all kinds of rumors. And I know in
my few previous conversations with the President he's
not big on small talk to I would have one shot to ask
him. And rather than asking him, ``Are you doing X
because of X or because of Y or because of Z?'' I asked
him one open-ended question: What do you want from
Ukraine? And as I recall, he was in a very bad mood. It
was a very quick conversation. He said: I wanted
nothing. I want no quid pro quo. I want Zelensky to do
the right thing. And I said: What does that mean? And
he said: I want him to do what he ran on.\298\
---------------------------------------------------------------------------
\298\Id. at 105-06 (emphasis added).
When asked about his conversation with Senator Johnson--
which prompted Senator Johnson to call President Trump--
Ambassador Sondland testified that he was ``speculating'' about
the linkage between security assistance and
investigations.\299\ He explained:
---------------------------------------------------------------------------
\299\Id. at 196.
I noticed in the media [Senator Johnson] had come out
and said that he and I had a conversation on the phone
about it. And he had said that I told him--this is in
the media report, and I haven't discussed this with him
since that media report--that I had said there was a
quid pro quo. And I don't remember telling him that
because I'm not sure I knew that at that point. I think
what I might have done is I might have been
speculating--I hope there's no, I hope this isn't being
held up for nefarious reasons.\300\
---------------------------------------------------------------------------
\300\Id.
Although Democrats and some in the media believe that
Acting Chief of Staff Mick Mulvaney confirmed the existence of
a quid pro quo during an October 2019 press briefing,\301\ a
careful reading of his statements shows otherwise. Chief of
Staff Mulvaney cited President Trump's concerns about Ukrainian
corruption and foreign aid in general as the ``driving
factors'' in the temporary pause on security assistance.\302\
He explained that Ukraine's actions in the 2016 election ``was
part of the thing that [the President] was worried about in
corruption with that nation.''\303\ Chief of Staff Mulvaney
specified, however, that ``the money held up had absolutely
nothing to do with [Vice President] Biden.''\304\
---------------------------------------------------------------------------
\301\Impeachment Inquiry: Dr. Fiona Hill and Mr. David Holmes,
supra note 210 (statement of Rep. Adam Schiff, Chairman); Aaron Blake,
Trump's acting chief of staff admits it: There was a Ukraine quid pro
quo, Wash. Post, Oct. 17, 2019.
\302\The White House, Press Briefing by Acting Chief of Staff Mick
Mulvaney (Oct. 17, 2019).
\303\Id.
\304\Id.
---------------------------------------------------------------------------
7. Senior U.S. officials never substantively discussed the delay in
security assistance with Ukrainian officials before the July 25
call
Evidence also suggests that the senior levels of the
Ukrainian government did not know that U.S. security assistance
was delayed until some point after the July 25 phone call
between President Trump and President Zelensky. Although the
assistance was delayed at the time of the July 25 call,
President Trump never raised the assistance with President
Zelensky or implied that the aid was in danger. As Ambassador
Volker testified, because Ukrainian officials were unaware of
the pause on security assistance, ``there was no leverage
implied.''\305\ This evidence undercuts the allegation that the
President withheld U.S. security assistance to pressure
President Zelensky to investigate his political rival.
---------------------------------------------------------------------------
\305\Volker transcribed interview, supra note 60, at 124-25.
---------------------------------------------------------------------------
Most of the Democrats' witnesses, including Ambassador
Taylor, traced their knowledge of the pause to a July 18
interagency conference call, during which OMB announced a pause
on security assistance to Ukraine.\306\ However, the two U.S.
diplomats closest the Ukrainian government--Ambassador Volker
and Ambassador Taylor--testified that Ukraine did not know
about the delay ``until the end of August,'' six weeks later,
after it was reported publicly by Politico on August 28.\307\
---------------------------------------------------------------------------
\306\See, e.g., Taylor deposition, supra note 47, at 27.
\307\Volker transcribed interview, supra note 60, at 125, 266-67;
Taylor deposition, supra note 47, at 119-20.
---------------------------------------------------------------------------
Ambassador Volker, the chief interlocutor with the
Ukrainian government, testified that he never informed the
Ukrainians about the delay.\308\ The Ukrainian government only
raised the issue with Ambassador Volker after reading about the
delay in Politico in late August.\309\ Explaining why the delay
was not ``significant, Ambassador Volker testified:
---------------------------------------------------------------------------
\308\Volker transcribed interview, supra note 60, at 80.
\309\Id. at 80-81; Text message from Andrey Yermak to Kurt Volker,
(Aug. 29, 2019, 03:06:14 AM), [KV00000020]; see Caitlin Emma & Connor
O'Brien, Trump holds up Ukraine military aid meant to confront Russia,
Politico, Aug. 28, 2019.
Q. Looking back on it now, is [the delayed security
assistance] something, in the grand scheme of things,
that's very significant? I mean, is this worthy of
investigating, or is this just another chapter in the
rough and tumble world of diplomacy and foreign
assistance?
A. In my view, this hold on security assistance was
not significant. I don't believe--in fact, I am quite
sure that at least I, Secretary Pompeo, the official
representatives of the U.S., never communicated to
Ukrainians that it is being held for a reason. We never
had a reason. And I tried to avoid talking to
Ukrainians about it for as long as I could until it
came out in Politico a month later because I was
confident we were going to get it fixed
internally.\310\
---------------------------------------------------------------------------
\310\Volker transcribed interview, supra note 60, at 80.
During his public testimony, Ambassador Volker confirmed that
he did not have any communication with the Ukrainian government
about the pause on U.S. security assistance until they raised
the topic with him.\311\ Morrison likewise testified that he
avoided discussing the pause on security assistance with the
Ukrainian government.\312\
---------------------------------------------------------------------------
\311\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8.
\312\Id.
---------------------------------------------------------------------------
Ambassador Taylor similarly testified that the Ukrainian
government was not aware of the pause on U.S. security
assistance until late August 2019. In an exchange with Rep.
Ratcliffe, he explained:
Q. So, based on your knowledge, nobody in the
Ukrainian government became aware of a hold on military
aid until 2 days later, on August 29th.
A. That's my understanding.
Q. That's your understanding. And that would have
been well over a month after the July 25th call between
President Trump and President Zelensky.
A. Correct.
Q. So you're not a lawyer, are you, Ambassador
Taylor?
A. I am not.
Q. Okay. So the idea of a quid pro quo is it's a
concept where there is a demand for an action or an
attempt to influence action in exchange for something
else. And in this case, when people are talking about a
quid pro quo, that something else is military aid. So,
if nobody in the Ukrainian government is aware of a
military hold at the time of the Trump-Zelensky call,
then, as a matter of law and as a matter of fact, there
can be no quid pro quo based on military aid. I just
want to be real clear that, again, as of July 25th, you
have no knowledge of a quid pro quo involving military
aid.
A. July 25th is a week after the hold was put on the
security assistance. And July 25th, they had a
conversation between the two presidents where it was
not discussed.
Q. And to your knowledge, nobody in the Ukrainian
government was aware of the hold?
A. That is correct.\313\
---------------------------------------------------------------------------
\313\Taylor deposition, supra note 47, at 119-20.
Likewise, Philip Reeker, the Acting Assistant Secretary of
State for Europeans Affairs, testified that he was unaware of
any U.S. official conveying to a Ukrainian official that
President Trump sought political investigations.\314\ Acting
Assistant Secretary Reeker testified that he was not aware of
whether Ambassador Volker or Ambassador Sondland had such
conversations with the Ukrainians.\315\
---------------------------------------------------------------------------
\314\Deposition of Philip Reeker in Wash., D.C., at 149 (Oct. 26,
2019).
\315\Id. at 150.
---------------------------------------------------------------------------
Some witnesses testified that the Ukrainian embassy made
informal inquiries about the status of the security assistance.
LTC Vindman recalled receiving ``light queries''' from his
Ukrainian embassy counterparts about the aid in either early-
or mid-August, but he was unable to pinpoint specific dates, or
even the week, that he had such conversations.\316\ LTC Vindman
testified that Ukrainian questions about the delay were not
``substantive'' or ``definitive'' until around the time of the
Warsaw summit, on September 1.\317\ State Department official
Catherine Croft testified that two individuals from the
Ukrainian embassy approached her about a pause on security
assistance at some point before August 28, but Croft told them
she ``was confident that any issues in process would get
resolved.''\318\ Deputy Assistant Secretary of Defense Laura
Cooper testified publicly that her staff received inquiries
from the Ukrainian embassy in July that ``there was some kind
of issue'' with the security assistance; however, she did not
know what the Ukrainian government knew at the time.\319\
---------------------------------------------------------------------------
\316\Vindman deposition, supra note 12, at 135-37, 189-90.
\317\Id. at 189-90.
\318\Croft deposition, supra note 60, at 86-87.
\319\Impeachment Inquiry: Ms. Laura Cooper and Mr. David Hale,
supra note 246.
---------------------------------------------------------------------------
Although this evidence suggests that Ukrainian officials in
Washington were vaguely aware of an issue with the security
assistance before August 28, the evidence does not show that
the senior leadership of Ukrainian government in Kyiv was aware
of the pause until late August. A New York Times story claimed
that unidentified Ukrainian officials were aware of a delay in
``early August'' 2019 but said there was no stated link between
that delay and any investigative demands.\320\ However, a
subsequent Bloomberg story reported that President Zelensky
``and his key advisers learned of [the pause on U.S. security
assistance] only in a Politico report in late August.''\321\
---------------------------------------------------------------------------
\320\Andrew E. Kramer & Kenneth P. Vogel, Ukraine knew of aid
freeze by early August, undermining Trump defense, N.Y. Times, Oct. 23,
2019.
\321\Baker & Krasnolutska, supra note 280.
---------------------------------------------------------------------------
The Bloomberg story detailed how Ukraine's embassy in
Washington--led by then-Ambassador Chaly, who had been
appointed by President Zelensky's predecessor--went ``rogue''
in the early months of the Zelensky administration.\322\
According to Andrey Yermak, a close adviser to President
Zelensky, the Ukrainian embassy officials, who were loyal to
former President Poroshenko, did not inform President Zelensky
that there was any issue with the U.S. security
assistance.\323\ This information explains the conflicting
testimony between witnesses like LTC Vindman and Deputy
Assistant Secretary Cooper, who testified that the Ukrainian
embassy raised questions about the security assistance, and
Ambassador Volker and Ambassador Taylor, who testified that the
Zelensky government did not know about any pause in security
assistance.
---------------------------------------------------------------------------
\322\Id.
\323\Id.
---------------------------------------------------------------------------
According to the Ukrainian government, President Zelensky
and his senior advisers only learned of the pause on security
assistance from Politico--severely undercutting the idea that
President Trump was seeking to pressure Ukraine to investigate
his political rival.
8. The Ukrainian government denied any awareness of a linkage between
U.S. security assistance and investigations
Publicly available information also shows clearly that the
Ukrainian government leadership denied any awareness of a
linkage between U.S. security assistance and investigations
into the President's political rival. The Ukrainian government
leaders made this assertion following public reports that
Ambassador Sondland had raised the potential connection in
early September. This understanding is supported by information
provided by Senator Johnson.
In Ambassador Sondland's addendum to his closed-door
testimony, dated November 5, 2019, he wrote how he came to
perceive a connection between security assistance and the
investigations. He wrote:
[B]y the beginning of September 2019, and in the
absence of any credible explanation for the suspension
of aid, I presumed that the aid suspension had become
linked to the proposed anti-corruption statement. . . .
And it would have been natural for me to have voiced
what I had presumed to Ambassador Taylor, Senator
Johnson, the Ukrainians, and Mr. Morrison.\324\
---------------------------------------------------------------------------
\324\Sondland declaration, supra note 278, at para.4.
Following media reports of Ambassador Sondland's addendum,
Ukrainian Foreign Minister Prystaiko told the media that
Ambassador Sondland had not linked the security assistance to
Ukrainian action on investigations.\325\ He said: ``Ambassador
Sondland did not tell us, and certainly did not tell me, about
a connection between the assistance and the
investigations.''\326\ Minister Prystaiko went further to say
that he was never aware of any connection between security
assistance and investigations: ``I have never seen a direct
relationship between investigations and security assistance.
Yes, the investigations were mentioned, you know, in the
conversation of the presidents. But there was no clear
connection between these events.''\327\
---------------------------------------------------------------------------
\325\U.S. envoy Sondland did not link Biden probe to aid: Ukraine
minister, Reuters, Nov. 14, 2019.
\326\Id.
\327\Id. (emphasis added).
---------------------------------------------------------------------------
Senator Johnson explained that he had three meetings with
senior Ukrainian government officials in June and July
2019.\328\ Two of meetings were with Oleksandr Danylyuk, then-
secretary of Ukraine's National Security and Defense Council,
and Valeriy Chaly, then-Ukrainian Ambassador to the U.S.\329\
Senator Johnson said that none of the these Ukrainian officials
raised any concerns with him about security assistance or
investigations: ``At no time during those meetings did anyone
from Ukraine raise the issue of the withholding of military aid
or express concerns regarding pressure being applied by the
president or his administration.''\330\
---------------------------------------------------------------------------
\328\Letter from Sen. Ron Johnson, supra note 138, at 4.
\329\Id.
\330\Id. at 4-5.
---------------------------------------------------------------------------
9. The Ukrainian government considered issuing a public anti-corruption
statement to convey that President Zelensky was ``serious and
different'' from previous Ukrainian regimes
Evidence shows that in light of President Trump's deep-
rooted skepticism about Ukraine, and working in tandem with
senior U.S. officials, the Ukrainian government sought to
convince President Trump that the new regime took corruption
seriously. This commitment took two potential forms: a public
statement that Ukraine would investigate corruption or a media
interview about investigations. Although the parties later
discussed the inclusion of specific investigations proposed by
Mayor Giuliani, U.S. officials explained that the intent of the
statement was to convey a public commitment to anti-corruption
reform and that they did not associate the statement with an
investigation of the President's political rival.
Ambassador Volker explained the goal of having Ukraine
convey President Zelensky's commitment to reform and fighting
corruption in a public message. He testified:
A. So the issue as I understood it was this deep-
rooted, skeptical view of Ukraine, a negative view of
Ukraine, preexisting 2019, you know, going back. When I
started this I had one other meeting with President
Trump and President Poroshenko. It was in September of
2017. And at that time he had a very skeptical view of
Ukraine. So I know he had a very deep-rooted skeptical
view. And my understanding at the time was that even
though he agreed in the [May 23] meeting that we had
with him, say, okay, I'll invite him, he didn't really
want to do it. And that's why the meeting kept being
delayed and delayed. And we ended up at a point in
talking with the Ukrainians--who we'll come to this,
but, you know, who had asked to communicate with
Giuliani--that they wanted to convey that they really
are different. And we ended up talking about, well,
then, make a statement about investigating corruption
and your commitment to reform and so forth.
Q. Is that the statement that you discussed in your
text messages--
A. Yes.
Q. --around August of 2019?
A. Yes.
Q. Okay.
A. Yeah. To say make a statement along those lines.
And the thought behind that was just trying to be
convincing that they are serious and different from the
Ukraine of the past.\331\
---------------------------------------------------------------------------
\331\Volker transcribed interview, supra note 60, at 41-42
(emphasis added).
Ambassador Volker elaborated during his public testimony
---------------------------------------------------------------------------
that a public statement is not unusual. He explained:
I didn't find it that unusual. I think when you're
dealing with a situation where I believe the President
was highly skeptical about President Zelensky being
committed to really changing Ukraine after his entirely
negative view of the country, that he would want to
hear something more from President Zelensky to be
convinced that, ``Okay, I'll give this guy a
chance.''\332\
---------------------------------------------------------------------------
\332\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8.
The Democrats' witnesses explained how the idea of a public
statement arose. Ambassador Volker testified that Andrey
Yermak, a senior adviser to President Zelensky, sent him a
draft statement following Yermak's meeting with Mayor Giuliani
on August 2.\333\ Ambassador Volker said that he believed the
statement was ``valuable for getting the Ukrainian Government
on the record about their commitment to reform and change and
fighting corruption because I believed that would be helpful in
overcoming this deep skepticism that the President had about
Ukraine.''\334\ Ambassador Volker, however, did not see the
statement as a ``necessary condition'' for President Zelensky
securing a White House meeting.\335\
---------------------------------------------------------------------------
\333\Volker transcribed interview, supra note 60, at 71.
\334\Id.
\335\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8
---------------------------------------------------------------------------
Ambassador Volker explained that although the statement
evolved to include specific references to ``Burisma'' and
``2016,'' the goal was still to show that President Zelensky
was ``different.'' He testified:
Q. And the draft statement went through some
iterations. Is that correct?
A. Yeah. It was pretty quick, though. I don't know
the timeline exactly. We have it. But, basically,
Andrey [Yermak] sends me a text. I share it with Gordon
Sondland. We have a conversation with Rudy to say: The
Ukrainians are looking at this text. Rudy says: Well,
if it doesn't say Burisma and if it doesn't say 2016,
what does it mean? You know, it's not credible. You
know, they're hiding something. And so we talked and I
said: So what you're saying is just at the end of the--
same statement, just insert Burisma and 2016, you think
that would be more credible? And he said: Yes. So I
sent that back to Andrey, conveyed the conversation
with him--because he had spoken with Rudy prior to
that, not me--conveyed the conversation, and Andrey
said that he was not--he did not think this was a good
idea, and I shared his view.
Q. You had testified from the beginning you didn't
think it was a good idea to mention Burisma or 2016.
A. Correct.
Q. But then, as I understand it, you came to believe
that if we're going to do the statement, maybe it's
necessary to have that reference in there, correct?
A. I'd say I was in the middle. I wouldn't say I
thought it was necessary to have it in there because I
thought the target here is not the specific
investigations. The target is getting Ukraine to be
seen as credible in changing the country, fighting
corruption, introducing reform, that Zelensky is the
real deal. You may remember that there was a statement
that Rudy Giuliani made when he canceled his visit to
Ukraine in May of 2019 that President Zelensky is
surrounded by enemies of the United States. And I just
knew that to be fundamentally not true. And so I think,
when you talk about overcoming skepticism, that's kind
of what I'm talking about, getting these guys out there
publicly saying: We are different.\336\
---------------------------------------------------------------------------
\336\Volker transcribed interview, supra note 60, at 71-73.
Although subsequent reporting has connoted a connection
between ``Burisma'' and the Bidens,\337\ the Democrats'
witnesses testified that they did not have that understanding
while working with the Ukrainian government about a potential
statement. Ambassador Volker explained that ``there is an
important distinction about Burisma'' and that Vice President
Biden or Hunter Biden were ``never part of the conversation''
with the Ukrainians.\338\ He also testified that the Ukrainians
did not link Burisma to the Bidens: ``They never mentioned
Biden to me.''\339\ Ambassador Volker also made clear that
following his initial conversation with Mayor Giuliani in May
2019, Mayor Giuliani ``never brought up Biden or Bidens with me
again. And so when we talked or heard Burisma, I literally
meant Burisma and that, not the conflation of that with the
Bidens.''\340\
---------------------------------------------------------------------------
\337\See, e.g., Paul Sonne, Michael Kranish, & Matt Viser, The gas
tycoon and the vice president's son: The story of Hunter Biden's foray
into Ukraine, Wash. Post, Sept. 28, 2019.
\338\Volker transcribed interview, supra note 60, at 73.
\339\Id. at 193.
\340\Id. at 213.
---------------------------------------------------------------------------
Ambassador Sondland testified that he was unaware that
``Burisma'' may have meant ``Biden'' until the White House
released the July 25th call transcript on September 25.\341\ In
fact, Ambassador Sondland testified that he recalled no
discussions with any State Department or White House official
about former Vice President Joe Biden or Hunter Biden.\342\
Ambassador Sondland testified that he did not recall Mayor
Giuliani ever discussing the Bidens with him.\343\
---------------------------------------------------------------------------
\341\Sondland deposition, supra note 51, at 70.
\342\Id. at 33. Ambassador Sondland testified that Burisma was
``one of many examples'' of Ukrainian corruption. Id. Ambassador
Sondland mentioned Naftogaz as another example of Ukrainian corruption
and lack of transparency that ``[came] up at every conversation.'' Id.
at 71, 99.
\343\Id. at 33.
---------------------------------------------------------------------------
Testimony and text messages reflect that Ambassador Volker,
Ambassador Sondland, and Ambassador Taylor communicated about
Ukraine's commitment to fight corruption throughout the summer.
Ambassador Taylor testified that in a phone conversation on
June 27, Ambassador Sondland told him that President Zelensky
``needed to make clear to President Trump that he, President
Zelensky, was not standing in the way of
`investigations.'''\344\ Ambassador Taylor said he did not know
to what ``investigations''' Ambassador Sondland was referring,
but that Ambassador Volker ``intended to pass that message [to
President Zelensky] in Toronto several days later.''\345\
---------------------------------------------------------------------------
\344\Taylor deposition, supra note 47, at 25.
\345\Id. at 62-65.
---------------------------------------------------------------------------
In early July, Ambassador Volker explained the dynamic
directly to President Zelensky in Toronto, emphasizing the need
to demonstrate a commitment to reform. Ambassador Volker
testified:
I believe [Mayor Giuliani] was getting bad
information, and I believe that his negative messaging
about Ukraine would be reinforcing the President's
already negative position about Ukraine. So I discussed
this with President Zelensky when I saw him in Toronto
on July 3rd, and I said I think this is a problem that
we have Mayor Giuliani--so I didn't discuss his meeting
with Lutsenko then. That came later. I only learned
about that later. But I discussed even on July 3rd with
President Zelensky that you have a problem with your
message of being, you know, clean, reform, that we need
to support you, is not getting--or is getting
countermanded or contradicted by a negative narrative
about Ukraine, that it is still corrupt, there's still
terrible people around you. At this time, there was
concern about his chief of presidential administration,
Andriy Bohdan, who had been a lawyer for a very famous
oligarch in Ukraine. And so I discussed this negative
narrative about Ukraine that Mr. Giuliani seemed to be
furthering with the President.\346\
---------------------------------------------------------------------------
\346\Volker transcribed interview, supra note 60, at 137.
On July 21, Ambassador Sondland sent a text message to
Ambassador Taylor that read: ``[W]e need to get the
conversation started and the relationship built, irrespective
of the pretext. I am worried about the alternative.''\347\
Ambassador Sondland testified that the word ``pretext''
concerned agreement on an interview or press statement and that
the ``alternative'' was no engagement at all between President
Trump and President Zelensky.\348\ Ambassador Sondland
testified that he viewed giving a press interview or making a
press statement as different from pressuring Ukraine to
investigate political rival.\349\
---------------------------------------------------------------------------
\347\Text message from Gordon Sondland to Kurt Volker & William
Taylor (July 21, 2019, 4:45 a.m.) [KV00000037].
\348\Sondland deposition, supra note 51, at 183-84.
\349\Id. at 170-71.
---------------------------------------------------------------------------
On August 9, Ambassador Sondland sent a text message to
Ambassador Volker, writing in part: ``I think potus [sic]
really wants the deliverable.''\350\ Ambassador Sondland
testified that ``deliverable'' referred to the Ukrainian press
statement.\351\ Ambassador Volker testified that President
Trump wanted a public commitment to reform as a
``deliverable'':
---------------------------------------------------------------------------
\350\Text message from Gordon Sondland to Kurt Volker (Aug. 9,
2019, 5:47 p.m.) [KV00000042].
\351\Sondland deposition, supra note 51, at 290.
Q. And what--yeah, what did you understand what the
President wanted by deliverable?
A. That statement that had been under conversation.
Q. That was the deliverable from Zelensky that the
President wanted before he would commit to--
A. He wanted to see that they're going to come out
publicly and commit to reform, investigate the past, et
cetera.\352\
---------------------------------------------------------------------------
\352\Volker transcribed interview, supra note 60, at 184 (emphasis
added).
According to Ambassador Taylor, on September 8, Ambassador
Sondland relayed to Ambassador Taylor that he had told
President Zelensky and Yermak that if President Zelensky ``did
not clear things up in public, we would be at a
stalemate.''\353\ Ambassador Taylor interpreted Ambassador
Sondland's use of ``stalemate'' to mean that there would be no
security assistance to Ukraine.\354\ Ambassador Taylor
recounted that Ambassador Sondland said that President Trump is
a businessman and businessmen ask for something before
``signing a check.''\355\ Ambassador Taylor testified that he
understood that ``signing a check'' related to security
assistance.\356\ Ambassador Sondland did not recall the
conversation with Ambassador Taylor and denied making a
statement about President Trump seeking something for signing a
check to Ukraine.\357\ He testified:
---------------------------------------------------------------------------
\353\Taylor deposition, supra note 47, at 39.
\354\Id.
\355\Id. at 40.
\356\Id.
\357\Sondland deposition, supra note 51, at 198-99, 351.
Q. So you hadn't--did you ever, in the course of
this, ever make a statement to the effect of, you know,
we're cutting a big check to the Ukraine, you know,
what should we get for this?
A. That's not something I would have said. I don't
remember that at all.
Q. Okay. So you've never made a statement relating
the aid to conditions that the Ukrainians ought to
comply with?
A. I don't remember that, no.
Q. But if someone suggested that you made that
statement, that would be out of your own character,
you're saying?
A. Yes.\358\
---------------------------------------------------------------------------
\358\Id. at 198-99.
Although Ambassador Sondland's statements imply that the
President personally sought a conditionality on the security
assistance, other witnesses testified that Ambassador Sondland
had a habit of exaggerating his interactions with President
Trump.\359\ Ambassador Sondland himself acknowledged that he
only spoke with the President five or six times, one of which
was a Christmas greeting.\360\ It is not readily apparent that
Ambassador Sondland was speaking on behalf of President Trump
in this context.
---------------------------------------------------------------------------
\359\Hill deposition, supra note 12, at 240-41; Kent deposition,
supra note 65, at 257.
\360\Sondland deposition, supra note 51, at 56.
---------------------------------------------------------------------------
10. President Zelensky never raised a linkage between security
assistance and investigations in his meetings with senior U.S.
government officials
Between July 18--the date on which OMB announced the pause
on security assistance to Ukraine during an interagency
conference call--and September 11--when the pause was lifted--
President Zelensky had five separate meetings with high-ranking
U.S. government officials. The evidence shows that President
Zelensky never raised any concerns in those meetings that he
felt pressure to investigate President Trump's political rival
or that U.S. security assistance to Ukraine was conditioned on
any such investigations.
On July 25, President Zelensky spoke by telephone with
President Trump. Although President Zelensky noted a desire to
purchase additional Javelin missiles from the United States--an
expenditure separate from security assistance--the call summary
otherwise does not show that the President discussed a pause on
U.S. security assistance to Ukraine.\361\
---------------------------------------------------------------------------
\361\Memorandum of Telephone Conversation, supra note 15.
---------------------------------------------------------------------------
On July 26, President Zelensky met in Kyiv with Ambassador
Volker, Ambassador Taylor, and Ambassador Sondland.\362\
According to Ambassador Sondland's closed-door deposition,
President Zelensky did not raise any concern about a pause on
security assistance or a linkage between the aid and
investigations into President Trump's political rival.\363\
---------------------------------------------------------------------------
\362\Taylor deposition, supra note 47, at 31; Sondland deposition,
supra note 51, at 29.
\363\Sondland deposition, supra note 51, at 252.
---------------------------------------------------------------------------
On August 27, President Zelensky met in Kyiv with President
Trump's then-National Security Advisor John Bolton.\364\
According to Ambassador Taylor, President Zelensky and
Ambassador Bolton did not discuss U.S. security
assistance.\365\
---------------------------------------------------------------------------
\364\Taylor deposition, supra note 47, at 33.
\365\Id.
---------------------------------------------------------------------------
On September 1, President Zelensky met in Warsaw with Vice
President Pence, after the existence of the security assistance
pause became public. Tim Morrison, Senior Director at the NSC,
testified that President Zelensky raised the security
assistance directly with Vice President Pence during their
meeting.\366\ According to Morrison, Vice President Pence
relayed President Trump's concern about corruption, the need
for reform in Ukraine, and his desire for other countries to
contribute more to Ukrainian defense.\367\ As Jennifer
Williams, senior adviser for Europe in the Office of the Vice
President, testified:
---------------------------------------------------------------------------
\366\Morrison deposition, supra note 12, at 131-34.
\367\Id.
Once the cameras left the room, the very first
question that President Zelensky had was about the
status of security assistance. And the VP responded by
really expressing our ongoing support for Ukraine, but
wanting to hear from President Zelensky, you know, what
the status of his reform efforts were that he could
then convey back to the President, and also wanting to
hear if there was more that European countries could do
to support Ukraine.\368\
---------------------------------------------------------------------------
\368\Williams deposition, supra note 73, at 81.
Vice President Pence did not discuss any investigations
with President Zelensky.\369\ Morrison said that Vice President
Pence spoke to President Trump that evening, who was ``still
skeptical'' due to the fact that U.S. allies were not
adequately contributing to Ukraine.\370\ Although Ambassador
Sondland claimed in his public hearing that he informed Vice
President Pence of his assumption of a link between security
assistance and investigations in advance of the Vice
President's meeting with President Zelensky,\371\ the Vice
President's office said Ambassador Sondland never raised
investigations or conditionality on the security
assistance.\372\
---------------------------------------------------------------------------
\369\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8; Impeachment Inquiry: LTC Alexander Vindman and
Ms. Jennifer Williams, supra note 6. In fact, Williams testified that
Vice President Pence has ``never brought up'' these investigations.
Impeachment Inquiry: LTC Alexander Vindman and Ms. Jennifer Williams,
supra note 6.
\370\Morrison deposition, supra note 12, at 133-34.
\371\Impeachment Inquiry: Ambassador Gordon Sondland, supra note
56.
\372\Office of the Vice President, Statement from VP Chief of Staff
Marc Short (Nov. 20, 2019). In addition, the summary of President
Trump's July 25 call with President Zelensky was not included in Vice
President Pence's briefing book for his meeting with President
Zelensky. Williams deposition, supra note 73, at 108.
---------------------------------------------------------------------------
On September 5, President Zelensky met in Kyiv with Senator
Ron Johnson, Senator Chris Murphy, and Ambassador Taylor.\373\
President Zelensky raised the issue of the security assistance,
and Senator Johnson relayed to him what President Trump had
told Senator Johnson during their August 31 conversation.\374\
Senator Murphy then warned President Zelensky ``not to respond
to requests from American political actors or he would risk
losing Ukraine's bipartisan support.''\375\ Senator Johnson
recalled that he did not comment on Senator Murphy's statement
but began discussing a potential presidential meeting.\376\ To
help President Zelensky understand President Trump's mindset,
Senator Johnson ``tried to portray [President Trump's] strongly
held attitude and reiterated the reasons President Trump
consistently gave [Senator Johnson] for his reservations
regarding Ukraine: endemic corruption and inadequate European
support.''\377\ Senator Johnson recounted how President
Zelensky raised no concerns about pressure:
---------------------------------------------------------------------------
\373\Sen. Johnson letter, supra note 138, at 6.
\374\Id.
\375\Id. at 7.
\376\Id.
\377\Id.
This was a very open, frank, and supportive
discussion. There was no reason for anyone on either
side not to be completely honest or to withhold any
concerns. At no time during this meeting--or any other
meeting on this trip--was there any mention by
[President] Zelensky or any Ukrainian that they were
feeling pressure to do anything in return for military
aid, not even after [Senator] Murphy warned them about
getting involved in the 2020 election--which would have
been the perfect time to discuss any pressure.\378\
---------------------------------------------------------------------------
\378\Id. at 8 (emphasis added).
After Senator Johnson offered his perspective, Senator
Murphy similarly provided an account of the September 5
meeting.\379\ Senator Murphy did not dispute the facts as
recounted by Senator Johnson, including that President Zelensky
raised no concerns about feeling pressure to investigate the
President's political rival.\380\ Senator Murphy, however,
interpreted President Zelensky's silence to mean that he felt
pressure.\381\ This ``interpretation''--based on what President
Zelensky did not say--is unpersuasive in light of President
Zelensky's repeated and consistent statements that he felt no
pressure.\382\
---------------------------------------------------------------------------
\379\Letter from Sen. Chris Murphy to Adam Schiff, Chairman, H.
Perm. Sel. Comm. on Intelligence, & Carolyn Maloney, Acting Chairwoman,
H. Comm. on Oversight & Reform (Nov. 19, 2019).
\380\Id. at 5.
\381\Id.
\382\See supra Section I.A.2.
---------------------------------------------------------------------------
11. In early September 2019, President Zelensky's government
implemented several anti-corruption reform measures
Publicly available information shows that following the
seating of Ukraine's new parliament, the Verkhovna Rada (Rada),
on August 29, 2019, the Zelensky government initiated
aggressive anti-corruption reforms. Almost immediately,
President Zelensky appointed a new prosecutor general and
opened Ukraine's Supreme Anti-Corruption Court.\383\ On
September 3, the Rada passed a bill that removed parliamentary
immunity.\384\ President Zelensky signed the bill on September
11.\385\ On September 18, the Rada approved a bill streamlining
corruption prosecutions and allowing the Supreme Anti-
Corruption Court to focus on high-level corruption cases.\386\
---------------------------------------------------------------------------
\383\Stefan Wolff & Tatyana Malyarenko, In Ukraine, Volodymyr
Zelenskiy must tread carefully or may end up facing another Maidan
uprising, The Conversation, Nov. 11, 2019.
\384\Bill on lifting parliamentary immunity submitted to Zelensky
for signature, Unian, Sept. 4, 2019.
\385\Zelensky signs law on stripping parliamentary immunity,
Interfax-Ukraine, Sept. 11, 2019.
\386\Anti-corruption Court to receive cases from NABU, SAPO, 112
UA, Sept. 18, 2019.
---------------------------------------------------------------------------
Witnesses described how these legislative initiatives
instilled confidence that Ukraine was delivering on anti-
corruption reform. NSC staffer LTC Vindman testified that the
Rada's efforts were significant.\387\ In his deposition,
Ambassador Taylor lauded President Zelensky for this
demonstrable commitment to reform. He testified:
---------------------------------------------------------------------------
\387\Impeachment Inquiry: LTC Alexander Vindman and Ms. Jennifer
Williams, supra note 6.
President Zelensky was taking over Ukraine in a
hurry. He had appointed reformist ministers and
supported long-stalled anticorruption legislation. He
took quick executive action, including opening
Ukraine's High Anti-Corruption Court, which was
established under previous Presidential administration
but was never allowed to operate. . . . With his new
parliamentary majority, President Zelensky changed the
Ukrainian constitution to remove absolute immunity from
Rada deputies, which had been the source of raw
corruption for decades.\388\
---------------------------------------------------------------------------
\388\Taylor deposition, supra note 47, at 22-23.
Likewise, NSC Senior Director Tim Morrison recalled that
President Zelensky's team had literally been working through
---------------------------------------------------------------------------
the night on anti-corruption reforms. He testified:
Q: And after the Rada was seated, do you know if
President Zelensky made an effort to implement those
[anti-corruption] reforms?
A: I do.
Q: And what reforms generally can you speak to?
A: Well, he named a new prosecutor general. That was
something that we were specifically interested in. He
had his party introduce a spate of legislative reforms,
one of which was particularly significant was stripping
Rada members of their parliamentary immunity. That
passed fairly quickly, as I recall. Those kinds of
things.
Q: And within what time period were some of those
initial reforms passed?
A: Very, very quickly.
Q: Okay. So in the month of August?
A: When we were--when Ambassador Bolton was in
Ukraine and he met with President Zelensky, we observed
that everybody on the Ukrainian side of the table was
exhausted, because they had been up for days working
on, you know, reform legislation, working on the new
Cabinet, to get through as much as possible on the
first day.
Q: Remind me again of Ambassador Bolton's visit. Was
that August, at the end of August?
A: It was at the end of August. It was between the G7
and the Warsaw commemoration.
Q: So by Labor Day, for example?
A: I seem to recall we were--we--we were there on the
opening day of the Rada. President--President Zelensky
met with Ambassador Bolton on the opening day of the
Rada, and they were in an all-night session. Yeah. So,
I mean, things were happening that day.\389\
---------------------------------------------------------------------------
\389\Morrison deposition, supra note 12, at 128-29.
These actions by the Ukrainian government in early
September 2019 are significant in demonstrating President
Zelensky's commitment to fighting corruption. Although the
Department of Defense had certified Ukraine met its anti-
corruption benchmarks in Spring 2019, that certification
occurred before President Zelensky's inauguration.\390\ Deputy
Assistant Secretary of Defense Laura Cooper testified during
her public hearing that the anti-corruption review examined the
efforts of the Poroshenko administration and that President
Zelensky had appointed a new Minister of Defense.\391\
---------------------------------------------------------------------------
\390\Deposition of Laura Cooper, in Wash., D.C., at 19, 99 (Oct.
23, 2019).
\391\Impeachment Inquiry: Ms. Laura Cooper and Mr. David Hale,
supra note 246.
---------------------------------------------------------------------------
As President Trump told Ambassador Sondland on September 9,
he sought ``nothing'' from the Ukrainian government; he only
wanted President Zelensky to ``do what he ran on.''\392\
President Zelensky had run on an anti-corruption platform, and
these early aggressive actions provided confirmation that he
was the ``real deal,'' as U.S. officials advised President
Trump.
---------------------------------------------------------------------------
\392\Sondland deposition, supra note 51, at 106.
---------------------------------------------------------------------------
12. The security assistance was ultimately disbursed to Ukraine in
September 2019 without any Ukrainian action to investigate
President Trump's political rival
On September 11, President Trump met with Vice President
Pence, Senator Rob Portman, and Acting Chief of Staff Mick
Mulvaney to discuss U.S. security assistance to Ukraine.\393\
As recounted by NSC Senior Director Tim Morrison, the group
discussed whether President Zelensky's progress on anti-
corruption reform--which Vice President Pence discussed during
his bilateral meeting with President Zelensky on September 1--
was significant enough to justify releasing the aid.\394\ He
testified:
---------------------------------------------------------------------------
\393\Morrison deposition, supra note 12, at 242-43.
\394\Id. at 243.
I believe Senator Portman was relating, and I believe
the Vice President as well, related their view of the
importance of the assistance. The Vice President was
obviously armed with his conversation with President
Zelensky, and they were--they convinced the President
that the aid should be disbursed immediately.\395\
---------------------------------------------------------------------------
\395\Id.
Following this meeting, the President decided to lift the
pause on U.S. security assistance to Ukraine.\396\ The release
was conveyed to the interagency the following morning.\397\ The
U.S. disbursed this assistance without Ukraine ever acting to
investigate President Trump's political rival.
---------------------------------------------------------------------------
\396\Id. at 211.
\397\Id.
---------------------------------------------------------------------------
Democrats cannot show conclusively that the Trump
Administration lifted the pause on security assistance only as
a result of their impeachment inquiry. In a private
conversation with Senator Johnson on August 31, President Trump
signaled that the aid would be released, saying then: ``We're
reviewing it now, and you'll probably like my final
decision.''\398\ A number of other events occurred within the
same period. President Zelensky implemented serious anti-
corruption reforms in Ukraine and OMB conducted a review of
foreign assistance globally and provided data on what other
countries contribute to Ukraine. Bipartisan senators contacted
the White House, telling the Administration that the Senate
would act legislatively to undo the pause on security
assistance.\399\ In fact, Senator Dick Durbin credited the
release of the security assistance to the Senate's potential
action.\400\ Senator Durbin said, ``It's beyond a coincidence
that they released it the night before our vote in the
committee.''\401\
---------------------------------------------------------------------------
\398\Letter from Sen. Johnson, supra note 138, at 5.
\399\See Byron York, Why did Trump release Ukraine aid? The answer
is simple, Wash. Exam., Nov. 24, 2019.
\400\Caitlin Emma et al., Trump administration backs off hold on
Ukraine military aid, Politico, Sept. 12, 2019.
\401\Id.
---------------------------------------------------------------------------
* * *
The evidence does not support the Democrats' allegation
that President Trump sought to withhold U.S. security
assistance to Ukraine to pressure President Zelensky to
investigate his political rival for the President's political
benefit. The Democrats' witnesses denied the two were linked.
The U.S. officials never informed the Ukrainian government that
the security assistance was delayed, and senior Ukrainian
officials did not raise concerns to U.S. officials until after
the delay was publicly reported. President Trump never raised
the security assistance during his phone call with President
Zelensky. President Zelensky never voiced concerns about
pressure or conditionality on security assistance in any
meetings he had with senior U.S. government officials. U.S.
security assistance ultimately flowed to Ukraine without the
Ukrainian government taking any action to investigate President
Trump's political rival.
D. THE EVIDENCE DOES NOT ESTABLISH THAT PRESIDENT TRUMP SET UP A SHADOW
FOREIGN POLICY APPARATUS TO PRESSURE UKRAINE TO INVESTIGATE THE
PRESIDENT'S POLITICAL RIVAL FOR THE PURPOSE OF BENEFITING HIM IN THE
2020 ELECTION
Democrats allege that President Trump established an
unauthorized, so-called ``shadow'' foreign policy apparatus to
pressure Ukraine to investigate his political rival to benefit
the President in the 2020 election.\402\ Democrats also alleged
that President Trump's recall of Ambassador Yovanovitch was a
``politically motivated'' decision to appease ``allies of
President Trump.''\403\ Although the Constitution gives the
President broad authority to conduct the foreign policy of the
United States, the Democrats say that President Trump abused
his power by disregarding the traditional State Department
bureaucratic channels for his personal political benefit. These
allegations fall flat.
---------------------------------------------------------------------------
\402\Press Release, H. Comm. On Foreign Affairs, Engel Floor
Remarks on Resolution for Open Hearings on Trump's Abuse of Power (Oct.
31, 2019); Adam Schiff (@RepAdamSchiff) (Nov. 6, 2019, 10:58 AM),
https://twitter.com/RepAdamSchiff/status/1192154367199260672.
\403\Press Release, H. Comm. on Foreign Affairs, Engel & Hoyer
Statement on U.S. Ambassador to Ukraine Masha Yovanovitch (May 7,
2019).
---------------------------------------------------------------------------
It is impossible to fairly assess the facts without
appreciating the circumstances in which they occurred. From the
very first days of the Trump Administration--indeed even before
it began--the unelected bureaucracy rejected President Trump
and his policies. The self-proclaimed ``resistance'' organized
protests and parody social media accounts, while high-level
bureaucrats received praise from colleagues for openly defying
the Administration's policies. Leaks of secret information
became almost daily occurrence, including details about the
President's sensitive conversations with foreign leaders.
Meanwhile, the Department of Justice and FBI spent 22 months
thoroughly investigating false allegations that the Trump
campaign had colluded with the Russian government in the 2016
election.
The evidence shows that following President Zelensky's
inauguration, the three senior U.S. officials who attended his
inauguration--Ambassador Kurt Volker, Ambassador Gordon
Sondland, and Secretary Rick Perry--assumed responsibility for
shepherding the U.S.-Ukrainian relationship. Contrary to
assertions of an ``irregular'' foreign policy channel, all
three men were senior U.S. leaders who had important official
interests in Ukraine. The three men maintained regular
communication with the NSC and the State Department about their
work in Ukraine.
Following President Zelensky's inauguration, Ambassador
Volker, Ambassador Sondland, and Secretary Perry sought to
convince President Trump of Ukraine's commitment to reform. In
that meeting, President Trump referenced Mayor Rudy Giuliani,
who had experience in Ukraine. When President Zelensky's
adviser Andrey Yermak asked Ambassador Volker to connect him
with Mayor Giuliani, Ambassador Volker did so because he
believed it would advance U.S.-Ukrainian interests. Mayor
Giuliani informed Ambassador Volker about his communications
with Yermak. Volker and Yermak both have said that Mayor
Giuliani did not speak on behalf of the President in these
discussions.
Some pockets of the State Department and NSC grumbled that
Ambassador Volker, Ambassador Sondland, and Secretary Perry had
become so active in U.S.-Ukraine policy. Others criticized
Ambassador Marie Yovanovitch's recall or fretted about Mayor
Giuliani's involvement. Yet, despite these bureaucratic
misgivings, there is no evidence that the involvement of
Ambassador Volker, Ambassador Sondland, Secretary Perry, or
Mayor Giuliani was illegal or hurt U.S. strategic interests.
There is also no evidence that President Trump made this
arrangement or recalled Ambassador Yovanovitch for the purpose
of pressuring Ukraine to investigate the President's political
rival for his benefit in the 2020 presidential election.
1. The President has broad Constitutional authority to conduct the
foreign policy of the United States
The Constitution vests the President of the United States
with considerable authority over foreign policy.\404\ The
President is the Commander-in-Chief of U.S. Armed Forces. The
President has the power to make treaties with foreign nations,
and he appoints and receives ``Ambassadors and other public
ministers.''\405\ The Supreme Court has explained that the
Constitution gives the President ``plenary and exclusive
authority'' over the conduct of foreign affairs.\406\ The
President is the ``sole organ of the federal government'' with
respect to foreign affairs.\407\
---------------------------------------------------------------------------
\404\U.S. Const. Art. II.
\405\Id.
\406\United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
320 (1936).
\407\Id. Although the President makes treaties with the advice and
consent of the Senate; the President alone negotiates. Cf. H. Jefferson
Powell, The President's Authority Over Foreign Affairs: An Executive
Branch Perspective, 67 Geo. Wash. L. Rev. 527, 546-47 (1999). Dealings
with foreign nations require ``caution and unity of design,'' which
depend on the President's authority to speak with ``one voice'' on
behalf of U.S. interests. Id. at 546.
---------------------------------------------------------------------------
2. President Trump was likely skeptical of the established national
security apparatus as a result of continual leaks and
resistance from the federal bureaucracy
In the wake of President Trump's electoral victory in 2016,
he faced almost immediate intransigence from unelected--and
often anonymous--federal employees. Since then, the
``Resistance'' has protested President Trump and leaked
sensitive national security information about the Trump
Administration's policies and objectives. In this context, one
can see how President Trump would be justifiably skeptical of
the national security apparatus.
Since the beginning of the Trump Administration, leaks of
sensitive national security information have occurred at
unprecedented rate. As the Washington Post noted, ``[e]very
presidential administration leaks. So far, the Trump White
House has gushed.''\408\ According to an analysis from the
Senate Homeland Security and Governmental Affairs Committee in
May 2017, the Trump Administration faced about one national
security leak per day--flowing seven times faster in the Trump
Administration than during the Obama or Bush
Administrations.\409\ Unelected bureaucrats leaked details
about President Trump's private conversations with world
leaders and the investigation into Russian interference in the
2016 election.\410\
---------------------------------------------------------------------------
\408\Paul Farhi, The Trump administration has sprung a leak. Many
of them, in fact, Wash. Post, Feb. 5, 2017.
\409\Maj. Staff on S. Comm. on Homeland Sec. & Gov't Affairs, 115th
Cong., State Secrets: How An Avalanche Of Media Leaks Is Harming
National Security (2017) [hereinafter ``HSGAC report''].
\410\Id.
---------------------------------------------------------------------------
In Kimberley Strassel's book Resistance (At All Costs), she
described the Resistance as ``the legions of Americans who were
resolutely opposed to the election of Trump, and who remain
angrily determined to remove him from office.''\411\ This
resistance included anonymous federal employees who criticized
President Trump and his policies on parody U.S. government
social media accounts.\412\ This resistance included high-level
bureaucrats--including then-Acting Attorney General Sally
Yates--who openly defied implementing Administration
policies.\413\ The resistance included an anonymous employee
who published an op-ed in the New York Times in September 2018
titled, ``I Am Part of the Resistance Inside the Trump
Administration,'' detailing how he or she and other unelected
bureaucrats were actively working at odds with the
President.\414\ The op-ed earned the anonymous employee a book
deal.\415\
---------------------------------------------------------------------------
\411\Kimberley Strassel, Resistance (At All Costs): How Trump
Haters Are Breaking America (2019).
\412\Kimberley A. Strassel, Whistleblowers and the Real Deep State,
Wall St. J., Oct. 11, 2019.
\413\Id.
\414\I Am Part of the Resistance Inside the Trump Administration,
N.Y. Times, Sep. 5, 2018.
\415\Alexa Diaz, Anonymous Trump official who wrote `resistance'
op-ed to publish tell-all book, L.A. Times, Oct. 22, 2019.
---------------------------------------------------------------------------
The ``Resistance'' extended to the U.S. national security
apparatus as well, including FBI agents investigating unproven
allegations of collusion between the Trump campaign and the
Russian government.\416\ An FBI lawyer working the
investigation, and later assigned to Special Counsel Robert
Mueller's office, texted another FBI employee, ``Vive le
resistance,'' in the month that President Trump was
elected.\417\ In the week after election night, FBI Agent Peter
Strzok and FBI lawyer Lisa Page--who were both involved in the
Russia collusion investigation--wrote to each other: ``OMG THIS
IS F*CKING TERRIFYING'' and ``I bought all the president's men.
Figure I needed to brush up on watergate [sic].''\418\
---------------------------------------------------------------------------
\416\Special Counsel Robert S. Mueller, III, Report On The
Investigation Into Russian Interference In The 2016 Presidential
Election, 1-2. Vol. 1 (2019) [hereinafter ``Mueller report''].
\417\Inspector Gen., Dep't of Justice, A Review of Various Actions
by the Federal Bureau of Investigation and Department of Justice in
Advance of the 2016 Election, 396, 419 (2018).
\418\Id. at 397, 400.
---------------------------------------------------------------------------
The FBI surveilled Trump campaign associates using evidence
delivered by Christopher Steele--a confidential human source
funded by then-candidate Trump's political opponents and who
admitted he was ``desperate'' that Donald Trump lose the
election.\419\ During her deposition, Dr. Hill testified that
Steele's reporting was likely a bogus Russia misinformation
campaign against Steele.\420\ Yet, the FBI accepted Steele's
information and used it to obtain surveillance warrants on
Trump campaign associate Carter Page.\421\ Ultimately, Special
Counsel Mueller's report concluded that the Trump campaign did
not conspire or coordinate with Russian election interference
actions.\422\ In considering the President's mindset, this
context cannot be ignored.
---------------------------------------------------------------------------
\419\F.B.I., Dep't of Just., 302 Interview with Bruce Ohr on Dec.
19, 2016 at 3.
\420\See Hill deposition, supra note 12, at 177-180 (``I think it
was a rabbit hole . . . The way that the Russians operate is that they
will use whatever conduit they can to put out information that is both
real and credible but that also masks a great deal of disinformation .
. .'').
\421\Transcribed Interview of Sally Moyer, in Wash., D.C., at 162
(Oct. 23, 2018).
\422\Mueller report, supra note 416.
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3. The President has the constitutional authority to remove Ambassador
Yovanovitch
U.S. ambassadors are the President's representatives
abroad, serving at the pleasure of the President. Every
ambassador interviewed during this impeachment inquiry
recognized and appreciated this fact.\423\ Even Ambassador
Yovanovitch understood that the President could remove any
ambassador at any time for any reason, although she
unsurprisingly disagreed with the reason for her removal.\424\
The removal of Ambassador Yovanovitch, therefore, is not per se
evidence of wrongdoing for the President's political benefit.
---------------------------------------------------------------------------
\423\ Sondland deposition, supra note 51, at 19; Volker transcribed
interview, supra note 60, at 88-89; Transcribed interview of Ambassador
Michael McKinley, in Wash., D.C., at 37 (Oct. 16, 2019) [hereinafter
``McKinley transcribed interview'']; Yovanovitch deposition, supra note
115, at 23; Taylor deposition, supra note 47, at 297; Hale deposition,
supra note 230, at 38.
\424\Yovanovitch deposition, supra note 115, at 23. Evidence
suggests that Ambassador Yovanovitch took steps to gain the President's
trust. Deputy Assistant Secretary of State George Kent testified that
Ambassador Yovanovitch taped videos in which she proclaimed support for
the Trump Administration's foreign policies. Kent deposition, supra
note 65, at 118-19. Ambassador Yovanovitch testified that she sought
Ambassador Sondland's guidance on how to address negative news reports
critical of her work as Ambassador to Ukraine. She said that Ambassador
Sondland told her to ``go big or go home'' in publicly supporting the
President. Yovanovitch deposition, supra note 115, at 267-28, 306-07.
Ambassador Sondland, however, testified that he did not recall advising
Ambassador Yovanovitch to make a public statement. Sondland deposition,
supra note 51, at 58-59.
---------------------------------------------------------------------------
Evidence suggests that President Trump likely had concerns
about Ambassador Yovanovitch's ability to represent him in
Ukraine,\425\ and that then-Ukrainian President Poroshenko had
authorized an effort to criticize Ambassador Yovanovitch.\426\
Ambassador Volker testified that he had no firsthand knowledge
of Ambassador Yovanovitch criticizing the President; however,
he said that ``President Trump would understandably be
concerned if that was true because you want to have trust and
confidence in your Ambassadors.''\427\
---------------------------------------------------------------------------
\425\Memorandum of Telephone Conversation, supra note 15.
\426\Kent deposition, supra note 65, at 232.
\427\Volker transcribed interview, supra note 60, at 90.
---------------------------------------------------------------------------
Despite recognizing the President's prerogative to dismiss
ambassadors, some in the U.S. foreign policy apparatus voiced
concerns about Ambassador Yovanovitch's removal. Ambassador
McKinley testified that he resigned from the State Department
because he believed that it failed to protect its
diplomats.\428\ However, Ambassador McKinley did not resign
when he first learned that Ambassador Yovanovitch had been
called home, despite knowing that she had been recalled.\429\
He only resigned months later, after the whistleblower's
account and the President's comments to President Zelensky
about Ambassador Yovanovitch during the July 25 call transcript
became public.\430\
---------------------------------------------------------------------------
\428\McKinley transcribed interview, supra note 423, at 20, 24-25.
\429\Id. at 33-34.
\430\Id. at 35-36. See also Karen DeYoung, Senior adviser to Pompeo
resigns, Wash. Post, Oct. 10, 2019.
---------------------------------------------------------------------------
Ambassador Yovanovitch testified that her removal from Kyiv
had little effect on her career with the State Department. Her
post was scheduled to end only a matter of weeks after her
recall.\431\ Although she had considered extending her tour, a
decision had not been officially made.\432\ Ambassador
Yovanovitch explained that she had been planning to retire
following her tour in Ukraine and ``[s]o I don't think from a
State Department point of view [the recall] has had any
effect.''\433\ The recall also did not affect her
compensation.\434\ Ambassador Yovanovitch explained that the
State Department was helpful in securing her a position with
Georgetown University.\435\
---------------------------------------------------------------------------
\431\Yovanovitch deposition, supra note 115, at 114-16, 140.
\432\Id. at 22, 114-16, 122.
\433\Id. at 139-40.
\434\Impeachment Inquiry: Ambassador Marie Yovanovitch, supra note
4.
\435\Yovanovitch deposition, supra note 115, at 139.
---------------------------------------------------------------------------
4. Ambassador Volker, Ambassador Sondland, and Secretary Perry were all
senior U.S. government officers with official interests in
Ukraine policy
Contrary to allegations that President Trump orchestrated a
``shadow'' foreign policy channel to pressure Ukraine to
investigate his political rival, evidence shows that the U.S.
interactions with Ukraine were led by senior U.S. officials.
These officials, Ambassador Volker, Ambassador Sondland, and
Secretary Perry, had attended President Zelensky's inauguration
in May 2019 and all had official interests in U.S. policy
toward Ukraine.
Ambassador Volker explained that ``we viewed ourselves as
having been empowered as a Presidential delegation to go there,
meet, make an assessment [of whether President Zelensky was a
legitimate anti-corruption reformer], and report'' to President
Trump.\436\ He said that they assumed responsibility to
``shepherd this [U.S.-Ukrainian] relationship together as best
we could.''\437\ The delegation assumed this responsibility at
a time when the U.S. government lacked an experienced chief of
mission in Kyiv.
---------------------------------------------------------------------------
\436\Volker transcribed interview, supra note 60, at 206.
\437\Id. at 67.
---------------------------------------------------------------------------
Importantly, cutting against the idea of a ``shadow''
channel, each of these three men had an official role with
respect to U.S. policy toward Ukraine.\438\ Ambassador Volker
described his role as the Special Representative for Ukraine
Negotiations as ``supporting democracy and reform in Ukraine,
helping Ukraine better defend itself and deter Russian
aggression, and leading U.S. negotiating efforts to end the war
and restore Ukraine's territorial integrity.''\439\ As
Ambassador to the European Union, Ambassador Sondland said that
Ukraine issues were ``central'' to his responsibilities.\440\
In addition, the Department of Energy, led by Secretary Perry,
has significant equities in energy policies in Ukraine.\441\
---------------------------------------------------------------------------
\438\See Impeachment Inquiry: Dr. Fiona Hill and Mr. David Holmes,
supra note 210.
\439\Volker transcribed interview, supra note 60, at 13.
\440\Sondland deposition, supra note 51, at 20. During her
deposition, Dr. Hill testified that Ambassador Sondland told her that
President Trump had ``given him broad authority on all things related
to Europe, that he was the President's point man on Europe.'' Hill
deposition, supra note 12, at 60. Dr. Hill later acknowledged it that
Ambassador Sondland could have been exaggerating, explaining that she
often saw Ambassador Sondland coming out of West Wing saying he was
seeing the President but she learned later that he was really seeing
other staff. Id. at 204.
\441\James Osborne, What Rick Perry was doing in Ukraine, Houston
Chronicle, Oct. 16, 2019.
---------------------------------------------------------------------------
In the absence of a seasoned chief of mission in Kyiv--
before Ambassador Taylor's arrival--these three individuals
assumed responsibility following President Zelensky's
inauguration for shepherding U.S. engagement with President
Zelensky's government. That each individual had an official
interest in U.S. policy toward Ukraine undercuts the notion
that they engaged in ``shadow'' diplomacy for illegitimate
purposes.
5. Referencing Ukrainian corruption, President Trump told Ambassador
Volker, Ambassador Sondland, and Secretary Perry to talk to
Mayor Giuliani
Evidence suggests that Mayor Giuliani's negative assessment
of President Zelensky may have reinforced President Trump's
existing skepticism about Ukraine and its history of
corruption. In May 2019, Mayor Giuliani said that President-
elect Zelensky was ``surrounded by enemies'' of President
Trump.\442\ When the U.S. delegation to President Zelensky's
inauguration later tried to assure President Trump that
President Zelensky was different, the President referenced
Mayor Giuliani as someone knowledgeable about Ukrainian
corruption and told the men to talk to Mayor Giuliani.\443\
Testimony differs, however, on whether the President's
reference to Mayor Giuliani was a direction or an aside. Either
way, because President Trump--constitutionally, the nation's
``sole organ of foreign affairs''\444\--raised Mayor Giuliani
as someone knowledgeable about Ukraine, this arrangement is not
evidence of an unsanctioned and nefarious ``shadow'' foreign
policy apparatus.
---------------------------------------------------------------------------
\442\See Charles Creitz, Giuliani cancels Ukraine trip, says he'd
be `walking into a group of people that are enemies of the US', Fox
News, May 11, 2019.
\443\Sondland deposition, supra note 51, at 25. According to public
reports, Mayor Giuliani has over a decade of experience working in
Ukraine. See, e.g., Rosalind S. Helderman et al., Impeachment Inquiry
Puts New Focus on Giuliani's Work for Prominent Figures in Ukraine,
Wash. Post, Oct. 2, 2019.
\444\Curtiss-Wright Export Corp., 299 U.S. at 320.
---------------------------------------------------------------------------
On May 23, the U.S. delegation to President Zelensky's
inauguration briefed President Trump about their impressions of
President Zelensky. Ambassador Sondland testified that the
President relayed concerns about Ukrainian corruption, saying
``Ukraine is a problem,'' ``tried to take me down,'' and ``talk
to Rudy.''\445\ During his transcribed interview, Ambassador
Volker elaborated:
---------------------------------------------------------------------------
\445\Sondland deposition, supra note 51, at 61-62, 75.
Q. And can you describe the discussion--
A. Yes.
Q. --that occurred?
A. Yes. The President started the meeting and started
with kind of a negative assessment of the Ukraine. As
I've said earlier--
Q. Yep.
A. --it's a terrible place, all corrupt, terrible
people, just dumping on Ukraine.
Q. And they were out to get me in 2016.
A. And they were out to get--and they tried to take
me down.
Q. In 2016?
A. Yes. And each of us took turns from this
delegation giving our point of view, which was that
this is a new crowd, it's a new President, he is
committed to doing the right things. I believe I said,
he agrees with you. That's why he got elected. It is a
terrible place, and he campaigned on cleaning it up,
and that's why the Ukrainian people supported him.
So, you know, we strongly encouraged him to engage
with this new President because he's committed to
fighting all of those things that President Trump was
complaining about.
Q. And how did the President react?
A. He just didn't believe it. He was skeptical. And
he also said, that's not what I hear. I hear, you know,
he's got some terrible people around him. And he
referenced that he hears from Mr. Giuliani as part of
that.
Q. Can you explain a little bit more about what the
President said about Rudy Giuliani in that meeting?
A. He said that's not what I hear. I hear a whole
bunch of other things. And I don't know how he phrased
it with Rudy, but it was--I think he said, not as an
instruction but just as a comment, talk to Rudy, you
know. He knows all of these things, and they've got
some bad people around him. And that was the nature of
it. It was clear that he also had other sources. It
wasn't only Rudy Giuliani. I don't know who those might
be, but he--or at least he said, I hear from
people.\446\
---------------------------------------------------------------------------
\446\Volker transcribed interview, supra note 60, at 304-05. Deputy
Assistant Secretary Kent testified that Dr. Hill relayed to him that
President Trump had conversations with Viktor Orban, the Prime Minister
of Hungary, and Vladimir Putin, the President of Russia, which he said
may have also colored President Trumps view of Ukraine. Kent
deposition, supra note 65, at 253-54.
In his public testimony, Ambassador Volker reiterated that
he did not understand the President's comment, ``talk to
Rudy,'' to be a direction.\447\ He explained:
---------------------------------------------------------------------------
\447\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8.
I didn't take it as an instruction. I want to be
clear about that. He said: That's not what I hear. You
know, when we were giving him our assessment about
President Zelensky and where Ukraine is headed: That's
not what I hear. I hear terrible things. He's got
terrible people around him. Talk to Rudy. And I
understood, in that context, him just saying that's
where he hears it from. I didn't take it as an
instruction.''\448\
---------------------------------------------------------------------------
\448\Id.
Ambassador Sondland, however, in both his closed-door
deposition and his public testimony, characterized the
President's comment as a ``direction.''\449\ In an interview
with the Wall Street Journal, Energy Secretary Rick Perry
stated that he called Mayor Giuliani following the May 23
meeting, and that Mayor Giuliani told him ``to be careful with
regards''' to President Zelensky.\450\ Secretary Perry said
``he never heard the president, any of his appointees, Mr.
Giuliani, or the Ukrainian regime discuss the possibility of
specifically investigating former Vice President Joe Biden, a
Democratic presidential contender, and his son Hunter
Biden.''\451\
---------------------------------------------------------------------------
\449\Impeachment Inquiry: Ambassador Gordon Sondland, supra note
56; Sondland deposition, supra note 51, at 25-26.
\450\Timothy Puko & Rebecca Ballhaus, Rick Perry called Rudy
Giuliani at Trump's direction on Ukraine concerns, Wall St. J., Oct.
16, 2019.
\451\Id.
---------------------------------------------------------------------------
6. At the Ukrainian government's request, Ambassador Volker connected
them with Mayor Giuliani to change his impression about the
Zelensky regime
Evidence shows that the Ukrainian government, and
specifically Zelensky adviser Andrey Yermak, initiated contact
with Mayor Giuliani--and not the other way around to attempt to
refute Mayor Giuliani's views about President Zelensky. Yermak
later told Bloomberg that he had informed both Republicans and
Democrats in Congress in July 2019 that he planned to engage
with Mayor Giuliani and heard no objections.\452\
---------------------------------------------------------------------------
\452\Baker & Krasnolutska, supra note 280.
---------------------------------------------------------------------------
According to Ambassador Volker, in May 2019, he ``became
concerned that a negative narrative about Ukraine fueled by
assertions made by Ukraine's departing prosecutor general'' was
reaching President Trump via Mayor Giuliani.\453\ In July,
Ambassador Volker shared his concerns with Yermak, who asked
Ambassador Volker to connect him with Mayor Giuliani
directly.\454\ Ambassador Volker explained:
---------------------------------------------------------------------------
\453\Volker transcribed interview, supra note 60, at 18.
\454\Id.; see also id. at 137-38.
After sharing my concerns with the Ukrainian
leadership, an adviser to President Zelensky asked me
to connect him to the President's personal lawyer,
Mayor Rudy Giuliani. I did so. I did so solely because
I understood that the new Ukrainian leadership wanted
to convince those, like Mayor Giuliani, who believed
such a negative narrative about Ukraine, that times
have changed and that, under President Zelensky,
Ukraine is worthy of U.S. support. I also made clear to
the Ukrainians on a number of occasions that Mayor
Giuliani is a private citizen and the President's
personal lawyer and that he does not represent the
United States Government.\455\
---------------------------------------------------------------------------
\455\Id. at 18.
Ambassador Volker was clear during his transcribed
interview that his action connecting Yermak with Mayor Giuliani
---------------------------------------------------------------------------
was in the best interests of the United States. He testified:
Q. And so any of the facts here, you connecting Mr.
Giuliani with Mr. Yermak and to the extent you were
facilitating Mr. Giuliani's communication with anybody
in the Ukraine, you were operating under the best
interests of the United States?
A. Absolutely.
Q. And to the extent Mr. Giuliani is tight with the
President, has a good relationship with him, has the
ability to influence him, is it fair to say that, at
times, it was in the U.S.'s interest to have Mr.
Giuliani connecting with these Ukrainian officials?
A. Yes. I would say it this way: It was I think in
the U.S. interest for the information that was reaching
the President to be accurate and fresh and coming from
the right people. And if some of what Mr. Giuliani
believed or heard from, for instance, the former
[Ukrainian] Prosecutor General Lutsenko was self-
serving, inaccurate, wrong, et cetera, I think
correcting that perception that he has is important,
because to the extent that the President does hear from
him, as he would, you don't want this dissonant
information reaching the President.\456\
---------------------------------------------------------------------------
\456\Id. at 69-70.
In an interview with Bloomberg, Yermak explained that he
sought to engage with Mayor Giuliani to ``dispel the notion
that the new Ukraine government was corrupt.''\457\ Yermak said
the Zelensky regime was ``surprised'' that Mayor Giuliani
believed them to be ``enemies of the U.S.'' and they sought to
ask Mayor Giuliani directly why he believed that.\458\ Yermak
recounted how, before his engaged with Mayor Giuliani, he
sought bipartisan feedback from Congress about this
approach.\459\ He said that he spoke with ``the top national
security advisers to the minority and majority leaders in both
the U.S. House and Senate'' and told them that ``he planned to
talk to [Mayor] Giuliani to explain the nation's reform agenda
and to urge him not to communicate with Ukraine through the
media.''\460\ Yermak recalled, ``Everyone said: `good
idea.'''\461\
---------------------------------------------------------------------------
\457\Baker & Krasnolutska, supra note 280.
\458\Id.
\459\Id.
\460\Id.
\461\Id.
---------------------------------------------------------------------------
7. The Ukrainian government understood that Mayor Giuliani was not
speaking on behalf of President Trump
Ambassador Volker was the chief interlocutor with the
Ukrainian government. He described himself as someone who had
the Ukrainian government's trust and who offered them counsel
on how to address the negative narrative about Ukrainian
corruption.\462\ Ambassador Volker testified that the Ukrainian
government did not view Mayor Giuliani as President Trump's
``agent'' on whose behalf he spoke.\463\ Instead, the
Ukrainians saw Mayor Giuliani as a one-way method for conveying
information to President Trump about President Zelensky's
commitment to reform.
---------------------------------------------------------------------------
\462\Volker transcribed interview, supra note 60, at 168-69.
\463\Id. at 116.
---------------------------------------------------------------------------
Under examination by House Intelligence Committee Chairman
Adam Schiff in his closed-door deposition, Ambassador Volker
was resolute that the Ukrainian government saw Mayor Giuliani
as someone who ``had the President's ear,'' not someone who
spoke for the President. He explained:
Q. You understood that the Ukrainians recognized that
Rudy Giuliani represented the President, that he was an
agent of the President, that he was a direct channel to
the President. Ukrainian officials you were dealing
with would have understood that, would they not?
A. I would not say that they thought of him as an
agent, but that he was a way of communicating, that you
could get something to Giuliani and he would be someone
who would be talking to the President anyway, so it
would flow information that way.
Q. So this was someone who had the President's ear?
A. Yes. That's fair.\464\
---------------------------------------------------------------------------
\464\Id. (emphasis added).
In his public testimony, Ambassador Volker reiterated that
Mayor Giuliani was not speaking on the President's behalf. He
---------------------------------------------------------------------------
explained:
I made clear to the Ukrainians that Mayor Giuliani
was a private citizen, the President's personal lawyer,
and not representing the U.S. Government. Likewise, in
my conversations with Mayor Giuliani, I never
considered him to be speaking on the President's
behalf, or giving instructions. Rather, the information
flow was the other way, from Ukraine to Mayor Giuliani,
in the hopes that this would clear up the information
reaching President Trump.\465\
---------------------------------------------------------------------------
\465\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8.
During her closed-door deposition, Dr. Hill confirmed this
assessment, explaining that she could not say that Mayor
Giuliani was acting on President Trump's behalf.\466\
---------------------------------------------------------------------------
\466\Hill deposition, supra note 12, at 424-25.
---------------------------------------------------------------------------
Andrey Yermak, in an August 2019 New York Times article,
said it was also not clear to him whether Mayor Giuliani was
speaking on behalf of President Trump.\467\ According to the
Times, Mayor Giuliani ``explicitly stated that he was not''
speaking on behalf of the President.\468\ President Trump
confirmed this fact in a November 2019 interview, explaining
that he did not direct Mayor Giuliani's Ukraine
activities.\469\
---------------------------------------------------------------------------
\467\Kramer & Vogel, supra note 176.
\468\Id.
\469\Daniel Chaitin, `I didn't direct him': Trump denies sending
Giuliani to Ukraine, Wash. Exam., Nov. 26, 2019.
---------------------------------------------------------------------------
8. Ambassador Volker, Ambassador Sondland, and Secretary Perry kept the
National Security Council and the State Department informed
about their actions
As Ambassador Volker, Ambassador Sondland, and Secretary
Perry engaged with Ukrainian government officials, they
maintained communications with the State Department and NSC.
This coordination undercuts any notion that President Trump
orchestrated a ``shadow'' foreign policy apparatus to work
outside of the State Department or NSC.
Ambassador Volker testified that ``while executing my
duties, I kept my colleagues at the State Department and
National Security Council informed and also briefed Congress
about my actions.''\470\ Ambassador Volker and Ambassador
Sondland also communicated regularly with Ambassador Bill
Taylor once he became the charge d'affaires, a.i., in
Kyiv.\471\ These briefings went as high as the Counselor to the
Secretary of State, Ulrich Brechbuhl.\472\
---------------------------------------------------------------------------
\470\Volker transcribed interview, supra note 60, at 19.
\471\See generally text messages exchanged between Kurt Volker and
Gordon Sondland [KV00000036-39].
\472\Volker transcribed interview, supra note 60, at 59.
---------------------------------------------------------------------------
In his public testimony, Ambassador Sondland explained that
it was ``no secret'' what he, Ambassador Volker, and Secretary
Perry were doing. As he stated, ``[w]e kept the NSC apprised of
our efforts, including specifically our efforts to secure a
public statement from the Ukrainians that would satisfy
President Trump's concerns.''\473\ Ambassador Sondland
testified that ``everyone was in the loop,'' although he
conceded that he ``presumed'' a connection between
investigations and security assistance without speaking to
President Trump, Acting Chief of Staff Mulvaney, or Mayor
Giuliani.\474\
---------------------------------------------------------------------------
\473\Impeachment Inquiry: Ambassador Gordon Sondland, supra note
56.
\474\Id.
---------------------------------------------------------------------------
9. Although some in the U.S. foreign policy establishment bristled, the
roles of Ambassador Volker, Ambassador Sondland, and Secretary
Perry and their interactions with Mayor Giuliani did not
violate the law or harm national security
Evidence suggests that some in the U.S. foreign policy
establishment disliked the involvement of Ambassador Volker,
Ambassador Sondland, and Secretary Perry in the U.S.-Ukrainian
relationship. Some also expressed discomfort with Mayor
Giuliani's interactions with Ukrainian officials. However, the
use of private citizens, such as Mayor Giuliani, to assist
effectuating U.S. foreign policy goals on specific issues is
not per se inappropriate and the Democrats' witnesses testified
that the use of private citizens can sometimes beneficial.
There is no evidence that the arrangement here violated any
laws or harmed national security.
Some of the Democrats' witnesses criticized the non-
traditional diplomacy. Ambassador Taylor testified about his
concern for what he characterized as ``two channels'' of U.S.
policy-making in Ukraine: a regular, State Department channel
and an ``irregular, informal'' channel featuring Ambassador
Volker, Ambassador Sondland, Secretary Perry, and Mayor
Giuliani.\475\ Deputy Assistant Secretary Kent testified that
he was concerned that discussions were occurring outside the
``formal policy process.''\476\
---------------------------------------------------------------------------
\475\Taylor deposition, supra note 47, at 23-24.
\476\Kent deposition, supra note 65, at 266-67.
---------------------------------------------------------------------------
Dr. Hill, too, disapproved of a non-traditional channel of
communication, testifying that she disagreed with Ambassador
Volker's decision to engage with Mayor Giuliani.\477\ Dr. Hill
characterized Ambassador Sondland's conduct as a ``domestic
political errand.''\478\ However, by the time that Dr. Hill
left the NSC on July 19, Ambassador Volker had only met with
Mayor Giuliani once and Ambassador Sondland had never
communicated with him.\479\ Mayor Giuliani did not meet with
the Ukrainian government until early August.\480\
---------------------------------------------------------------------------
\477\ Hill deposition, supra note 12, at 113-14. Ambassador
Sondland recounted that when he met with Dr. Hill prior to her
departure from the White House in mid-July, she was ``pretty upset
about her role'' in the Administration and so mad that Ambassador
Sondland said he had ``never seen anyone so upset.'' Sondland
deposition, supra note 51, at 266-67, 307. In her public testimony, Dr.
Hill explained that she was angry with Ambassador Sondland for not
coordinating with her sufficiently. Impeachment Inquiry: Dr. Fiona Hill
and Mr. David Holmes, supra note 210.
\478\Impeachment Inquiry: Dr. Fiona Hill and Mr. David Holmes,
supra note 210.
\479\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8; Impeachment Inquiry: Ambassador Gordon
Sondland, supra note 56.
\480\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8.
---------------------------------------------------------------------------
Despite this criticism, Ambassador Volker said that
Ambassador Taylor never raised concerns to him about an
``irregular'' foreign policy channel.\481\ The Democrats'
witnesses also explained that unorthodox foreign policy
channels are not unusual and can actually be helpful to advance
U.S. interests. Ambassador Taylor testified that non-
traditional channels of diplomacy ``can be helpful.''\482\
Ambassador Volker testified that he always operated with the
best interests of the U.S. in mind and to advance ``U.S.
foreign policy goals with respect to Ukraine.''\483\
---------------------------------------------------------------------------
\481\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8.
\482\Taylor deposition, supra note 47, at 177.
\483\Volker transcribed interview, supra note 60, at 15, 69.
---------------------------------------------------------------------------
The impeachment inquiry has uncovered no clear evidence
that President Trump directed Ambassador Volker, Ambassador
Sondland, and Secretary Perry to work with Mayor Giuliani for
the purpose of pressuring Ukraine to investigate his political
rival. In fact, the evidence suggests that the White House
actively worked to stop potential impropriety. When Mayor
Giuliani attempted to obtain a visa for former Ukrainian
Prosecutor General Viktor Shokin to travel to the U.S. in
January 2019, the White House shut down the effort.\484\ The
State Department had denied Shokin's visa and Mayor Giuliani
apparently appealed to the White House.\485\ According to
Deputy Assistant Secretary Kent, in settling the matter, White
House senior advisor Rob Blair said: ``I heard what I need to
know to protect the interest of the President.''\486\ Shokin
did not receive a visa.
---------------------------------------------------------------------------
\484\Kent deposition, supra note 65, at 48-49.
\485\Id. at 48-49.
\486\Id. at 143.
---------------------------------------------------------------------------
* * *
The evidence does not support the Democrats' allegation
that President Trump set up a shadow foreign policy apparatus
to pressure Ukraine to investigate the President's political
rival for his political benefit in the 2020 election. The
Constitution vests the President with broad authority over U.S.
foreign relations. The U.S. officials accused of conducting
``shadow'' foreign policy--Ambassador Volker, Ambassador
Sondland, and Secretary Perry--were all senior leaders with
official interests in Ukraine who informed the State Department
and NSC of their actions. Mayor Giuliani, whom President Trump
referenced in the May 23 meeting with these three U.S.
officials, also had experience in Ukraine.
The Ukrainian government asked Ambassador Volker to connect
them with Mayor Giuliani to help change Mayor Giuliani's
skeptical view of President Zelensky and ``clear up''
information flowing to the President. The Ukrainian government
saw Mayor Giuliani as someone who had the President's ear but
they did not see him as speaking on behalf of the President.
While some in the U.S. foreign policy establishment disagreed
with these actions, there is no indication it harmed national
security or violated any laws. Notably, Ambassador Volker said
he operated at all times with the U.S. national interest in
mind. Ultimately, Ukraine took no actions to investigate
President Trump's political rival.
E. PRESIDENT TRUMP IS NOT WRONG TO RAISE QUESTIONS ABOUT HUNTER BIDEN'S
ROLE WITH BURISMA OR UKRAINIAN GOVERNMENT OFFICIALS' EFFORTS TO
INFLUENCE THE 2016 CAMPAIGN
Democrats allege that President Trump and Mayor Giuliani
are spreading ``conspiracy theories'' by raising questions
about Hunter Biden's role on the board of Burisma and certain
Ukrainian government officials' efforts to influence the 2016
election.\487\ The evidence available, however, shows that
there are legitimate, unanswered questions about both issues.
As Ukraine implements anti-corruption reforms, it is
appropriate for the country to examine these allegations.
---------------------------------------------------------------------------
\487\See, e.g., Impeachment Inquiry: Ambassador Gordon Sondland,
supra note 56; Impeachment Inquiry: Ambassador William B. Taylor and
Mr. George Kent, supra note 2;
---------------------------------------------------------------------------
The Democrats' witnesses described how Burisma has long
been a subject of controversy in Ukraine. The company's
founder, Mykola Zlochevsky, was Ukraine's Minister of Ecology
and Natural Resources from 2010 to 2012. In that role, he
allegedly granted Burisma licenses for certain mineral
deposits. Hunter Biden and other well-connected Democrats
joined Burisma's board at a time when the company faced
criticism. Hunter Biden's role on Burisma was concerning enough
to the Obama State Department that it raised the issue with
Vice President Biden's office and even prepared Ambassador
Yovanovitch for a potential question on the topic at her
confirmation hearing in 2016.
The extent of Ukraine's involvement in the 2016 election
draws a much more visceral denial from Democrats, despite harsh
rhetoric from prominent Democrats condemning foreign
interference in U.S. election. It is undisputed that the then-
Ukraine Ambassador to the U.S. authored an op-ed criticizing
candidate Trump in U.S. media at the height of the presidential
campaign. It is undisputed that senior Ukrainian officials made
negative and critical comments about candidate Trump. In
addition, a well-researched January 2017 article in Politico
chronicles attempts by some Ukrainian government officials to
harm candidate Trump. The article quotes a former DNC
contractor and Ukrainian embassy staffer to show how the
Ukrainian embassy worked with Democrat operatives and the media
to hurt President Trump's candidacy.
1. It is appropriate for Ukraine to investigate allegations of
corruption in its country
As Ukraine adopts anti-corruption reforms, the United
States has encouraged the country's leaders to investigate and
prosecute corruption. Deputy Assistant Secretary of State for
European and Eurasian Affairs George Kent described Ukraine's
corruption problem as ``serious'' and said corruption has long
been ``part of the high-level dialogue'' between the United
States and Ukraine.\488\ Ambassador Marie Yovanovitch, the
former U.S. Ambassador to Ukraine, testified that in Ukraine
``corruption is not just prevalent, but frankly is the
system.''\489\ Although Ukraine has established various anti-
corruption prosecutors, courts, and investigative agencies to
address the pervasive problem, corruption remains a
problem.\490\
---------------------------------------------------------------------------
\488\Kent deposition, supra note 65, at 105, 151.
\489\Yovanovitch deposition, supra note 115, at 18.
\490\Id. at 79-80.
---------------------------------------------------------------------------
The Democrats' witnesses testified that it is appropriate
for Ukraine to investigate allegations of corruption, including
allegations about Burisma and 2016 election influence. Dr.
Fiona Hill, Senior Director for Europe at the NSC, explained
that it is ``not actually . . . completely ridiculous'' for
President Zelensky's administration to investigate allegations
of corruption arising from prior Ukrainian
administrations.\491\ Ambassador Volker testified that he
``always thought [it] was fine'' for Ukraine to investigate
allegations about 2016 election influence.\492\ Ambassador
Yovanovitch testified:
---------------------------------------------------------------------------
\491\Hill deposition, supra note 12, at 394.
\492\Volker transcribed interview, supra note 60, at 146.
Q. Ambassador Volker mentioned the fact that to the
extent there are corrupt Ukrainians and the United
States is advocating for the Ukraine to investigate
themselves, that certainly would be an appropriate
initiative for U.S. officials to advocate for. Is that
right?
A. If that's what took place.\493\
---------------------------------------------------------------------------
\493\Yovanovitch deposition, supra note 115, at 294.
With President Trump's deep-seated and genuine concern
about corruption in Ukraine, it is not unreasonable that he
would raise two examples of concern in a conversation with
President Zelensky. Democrats are fundamentally wrong to argue
that President Trump urged President Zelensky to
``manufacture'' or ``dig up'' ``dirt'' by raising these issues.
---------------------------------------------------------------------------
As Ambassador Volker testified:
Q. Would you say that President Trump in the phone
call--and you've read the transcript and you're
familiar with all the parties--was asking President
Zelensky to manufacture dirt on the Bidens?
A. No. And I've seen that phrase thrown around a lot.
And I think there's a difference between the
manufacture or dig up dirt versus finding out did
anything happen in the 2016 campaign or did anything
happen with Burisma. I think--or even if he's asking
them to investigate the Bidens, it is to find out what
facts there may be rather than to manufacture
something.
Q. It is not an accurate statement of what the
President was asking Ukraine to sum it up as saying
that President Trump was asking Ukraine to manufacture
dirt?
A. Yeah, I agree with that.\494\
---------------------------------------------------------------------------
\494\ Volker transcribed interview, supra note 60, at 212-213.
---------------------------------------------------------------------------
2. There are legitimate concerns surrounding Hunter Biden's position on
the board of Ukrainian energy company Burisma during his
father's term as Vice President of the United States
Burisma Holdings had a reputation in Ukraine as a corrupt
company.\495\ The company was founded by Mykola Zlochevsky, who
served as Ukraine's Minister of Ecology and Natural Resources
from 2010 to 2012.\496\ During Zlochevsky's tenure in the
Ukrainian government, Burisma received oil exploration licenses
without public auctions.\497\
---------------------------------------------------------------------------
\495\ Kent deposition, supra note 65, at 83.
\496\ Paul Sonne & Laura Mills, Ukrainians see conflict in Biden's
anticorruption message, Wall St. J., Dec. 7, 2015.
\497\ Id.
---------------------------------------------------------------------------
According to the New York Times, Hunter Biden and two other
well-connected Democrats--Christopher Heinz, then-Secretary of
State John Kerry's stepson, and Devon Archer--``were part of a
broad effort by Burisma to bring in well-connected Democrats
during a period when the company was facing investigations
backed not just by domestic Ukrainian forces but by officials
in the Obama administration.''\498\ Hunter Biden joined
Burisma's board when his father, Vice President Joe Biden,
acted as the Obama Administration's point person on
Ukraine.\499\
---------------------------------------------------------------------------
\498\ Kenneth P. Vogel & Iuliia Mendel, Biden faces conflicts of
interest questions that are being promoted by Trump and allies, N.Y.
Times, May 1, 2019.
\499\ Adam Taylor, Hunter Biden's new job at a Ukrainian gas
company is a problem for U.S. soft power, Wash. Post, May 14, 2014.
---------------------------------------------------------------------------
The appearance of a conflict of interest raised concerns
during the Obama Administration. In May 2014, the Washington
Post reported ``[t]he appointment of the vice president's son
to a Ukrainian oil board looks nepotistic at best, nefarious at
worst. No matter how qualified Biden is, it ties into the idea
that U.S. foreign policy is self-interested, and that's a
narrative Vladimir Putin has pushed during Ukraine's
crisis.''\500\ The Post likened Hunter Biden's position with
Burisma to ``children of Russian politicians'' who take
``executive positions in companies at the top of the Forbes 500
list, and China's `princelings' [who] have a similar
habit.''\501\
---------------------------------------------------------------------------
\500\ Id.
\501\ Id.
---------------------------------------------------------------------------
Deputy Assistant Secretary of State George Kent testified
that while he served as acting Deputy Chief of Mission in Kyiv
in early 2015, he raised concerns directly to Vice President
Biden's office about Hunter Biden's service on Burisma's
board.\502\ Kent said that the ``message'' he received back was
that because Vice President Biden's elder son, Beau, was dying
of brain cancer at the time, there was no ``bandwidth'' to deal
with any other family issues.\503\
---------------------------------------------------------------------------
\502\ Kent deposition, supra note 65, at 226-27.
\503\ Id.
---------------------------------------------------------------------------
In December 2015, the Wall Street Journal reported that
Ukrainian anti-corruption activists complained that Vice
President Biden's anti-corruption message ``is being undermined
as his son receives money'' from Zlochevsky.\504\ According to
the Journal, ``some anticorruption campaigners here [in Kyiv]
worry the link with Mr. Biden may protect Mr. Zlochevsky from
being prosecuted in Ukraine.''\505\
---------------------------------------------------------------------------
\504\ Sonne & Mills, supra, note 496.
\505\ Id.
---------------------------------------------------------------------------
Ambassador Yovanovitch testified that the Obama State
Department actually prepared her to address Hunter Biden's role
on Burisma if she received a question about it during her
Senate confirmation hearing to be ambassador to Ukraine in June
2016. She explained:
Q. And you may have mentioned this when we were
speaking before lunch, but when did the issues related
to Burisma first get to your attention? Was that as
soon as you arrived in country?
A. Not really. I first became aware of it when I was
being prepared for my Senate confirmation hearing. So
I'm sure you're familiar with the concept of questions
and answer and various other things. And so there was
one there about Burisma, and so, you know, that's when
I first heard that word.
Q. Were there any other companies that were mentioned
in connection with Burisma?
A. I don't recall.
Q. And was it in the general sense of corruption,
there was a company bereft with corruption?
A. The way the question was phrased in this model Q&A
was, what can you tell us about Hunter Biden's, you
know, being named to the board of Burisma?
* * *
Q. Did anyone at the State Department--when you were
coming on board as the new ambassador, did anyone at
the State Department brief you about this tricky issue,
that Hunter Biden was on the board of this company and
the company suffered from allegations of corruption,
and provide you guidance?
A. Well, there was that Q&A that I mentioned.\506\
---------------------------------------------------------------------------
\506\ Yovanovitch deposition, supra note 115, at 150-53.
According to testimony, the Obama State Department actually
took steps to prevent the U.S. government from associating with
Burisma. In his closed-door deposition, Deputy Assistant
Secretary Kent recounted a story about how he stopped a
taxpayer-funded partnership with Burisma in mid-2016.\507\ He
said he learned that Burisma sought to cosponsor a U.S. Agency
for International Development (USAID) program to encourage
Ukrainian school children to develop ideas for clean
energy.\508\ Kent said he advised USAID not to work with
Burisma due to its reputation for corruption.\509\
---------------------------------------------------------------------------
\507\ Kent deposition, supra note 65, at 88, 102-03.
\508\ Id. at 103
\509\ Id. at 102.
---------------------------------------------------------------------------
U.S. law enforcement in the past has examined employment
arrangements in which a company hires a seemingly unqualified
individual to influence government action. In 2016, the Obama
Justice Department fined a Hong Kong subsidiary of a
multinational bank for a scheme similar to Burisma's use of
Hunter Biden and other well-connected Democrats.\510\ There,
the company hired otherwise unqualified candidates to
``influence'' officials toward favorable business
outcomes.\511\ At the time, then-Assistant Attorney General
Leslie Caldwell explained that ``[a]warding prestigious
employment opportunities to unqualified individuals in order to
influence government officials is corruption, plain and
simple.''\512\
---------------------------------------------------------------------------
\510\ Press Release, U.S. Dep't of Justice, JPMorgan's Investment
Bank in Hong Kong Agrees to Pay $72 Million Penalty for Corrupt Hiring
Scheme in China (Nov. 17, 2016), https://www.justice.gov/opa/pr/
jpmorgan-s-investment-bank-hong-kong-agrees-pay-72-million-penalty-
corrupt-hiring-scheme.
\511\ Id.
\512\ Id.
---------------------------------------------------------------------------
During their public testimony, Democrat witnesses testified
that Hunter Biden's role on Burisma's board of directors
created the potential for the appearance of a conflict of
interest. LTC Vindman testified that Hunter Biden did not
appear qualified to serve on Burisma's board.\513\ Deputy
Assistant Secretary Kent explained that the issues surrounding
Burisma were worthy of investigation by Ukrainian
authorities.\514\ Kent testified:
---------------------------------------------------------------------------
\513\ Impeachment Inquiry: LTC Alexander Vindman and Ms. Jennifer
Williams, supra note 6.
\514\ Impeachment Inquiry: Ambassador William B. Taylor and Mr.
George Kent, supra note 2.
Q. But given Hunter Biden's role on Burisma's board
of directors, at some point, you testified in your
deposition that you expressed some concern to the Vice
President's office. Is that correct?
A. That is correct.
Q. And what did they do about that concern that you
expressed?
A. I have no idea. I reported my concern to the
Office of the Vice President.
Q. Okay. That was the end of it? Nobody--
A. Sir, you would have to ask people who worked in
the Office of the Vice President during 2015.
Q. But after you expressed a concern of a perceived
conflict of interest, at the least, the Vice
President's engagement in the Ukraine didn't decrease,
did it?
A. Correct, because the Vice President was promoting
U.S. policy objectives in Ukraine.
Q. And Hunter Biden's role on the board of Burisma
didn't cease, did it?
A. To the best of my knowledge, it didn't. And my
concern was that there was the possibility of a
perception of a conflict of interest.\515\
---------------------------------------------------------------------------
\515\Id.
Similarly, in her public testimony, Ambassador Yovanovitch
agreed that concerns about Hunter Biden's presence on Burisma's
board were legitimate. In an exchange with Rep. Ratcliffe, she
---------------------------------------------------------------------------
testified:
Q. You understood from Deputy Assistant Secretary
George Kent's testimony, as it's been related to you
that he testified a few days ago, do you understand
that that arrangement, Hunter Biden's role on the
Burisma board, caused him enough concern that, as he
testified in his statement, that ``in February of 2015,
I raised my concern that Hunter Biden's status as a
board member could create the perception of a conflict
of interest.'' Then he went on to talk about the Vice
President's responsibilities over the Ukraine--or over
Ukraine--Ukrainian policy as one of those factors. Do
you recall that?
A. Yes.
Q. Did you ever--do you agree with that?
A. Yes.
Q. That it was a legitimate concern to raise?
A. I think that it could raise the appearance of a
conflict of interest.
* * *
Q. But the legitimate concern about Hunter Biden's
role was legitimate, correct?
A. I think it creates a concern that there could be
an appearance of conflict of interest.\516\
---------------------------------------------------------------------------
\516\Impeachment Inquiry: Ambassador Marie Yovanovitch, supra note
4.
---------------------------------------------------------------------------
During her public testimony, Dr. Hill testified:
Q. Dr. Hill, you told us during your deposition that,
indeed, that there are perceived conflict of interest
troubles when the child of a government official is
involved with something that government official has an
official policy role in, correct?
A. I think any family member of any member of the
U.S. Government, Congress or the Senate, is open to all
kinds of questions about optics and of perhaps undue
outside influence, if they take part in any kind of
activity that could be misconstrued as being related to
their parent or the family member's work. So as a
matter of course, yes, I do think that's the case.\517\
---------------------------------------------------------------------------
\517\Impeachment Inquiry: Dr. Fiona Hill and Mr. David Holmes,
supra note 210.
Despite this evidence, House Intelligence Committee
Chairman Adam Schiff has prevented Republican Members from
fully assessing the role of Hunter Biden on Burisma's board of
directors. Chairman Schiff refused to invite Hunter Biden and
Devon Archer to testify during public hearings.\518\ Chairman
Schiff declined to concur with a Republican subpoena for Hunter
Biden to testify in a closed-door deposition.\519\ Chairman
Schiff declined to concur with a Republican subpoena for
documents relating to Hunter Biden's role on Burisma.\520\
---------------------------------------------------------------------------
\518\See, e.g., Allan Smith, Democrats push back on GOP effort to
have whistleblower, Hunter Biden testify, NBC News, Nov. 10, 2019.
\519\Impeachment Inquiry: Ms. Laura Cooper and Mr. David Hale,
supra note 246.
\520\Id.
---------------------------------------------------------------------------
In addition to Burisma, there are questions about why the
Ukrainian government fired then-Prosecutor General Shokin
according to Vice President Biden, at his insistence\521\ when
it did not fire his successor, Prosecutor General Yuriy
Lutsenko. Although Shokin and Lutsenko were both seen by State
Department officials as corrupt and ineffective prosecutors,
there was no effort to remove Lutsenko to the same degree or in
the same way as there was with Shokin.\522\ Ambassador
Yovanovitch testified:
\521\Council on Foreign Relations, Foreign Affairs Issue Launch
with Former Vice President Joe Biden (Jan. 23, 2018).
\522\Kent deposition, supra note 65, at 90-98, 144-49.
Q. And was he, in your experience--because you're
very knowledgeable about the region, so when I ask you
in your opinion, you have a very informed opinion--was
Lutsenko better or worse than Shokin?
A. I mean, honestly, I don't know. I mean, I think
they're cut from the same cloth.
* * *
Q. There was never as much of a clamor to remove
Lutsenko as there was Shokin. Is that fair to say?
A. Yeah, I think that's fair.
Q. And what do you account for that?
A. I would say that there was, I think, still a hope
that one could work with Mr. Lutsenko. There was also
that prospect of Presidential elections coming up, and
as seemed likely by, you know, December, January,
February, whatever the time was, that there would be a
change of government. And I think we certainly hoped
that Mr. Lutsenko would be replaced in the natural
order of things, which is, in fact, what happened. We
also had more leverage before. I mean, this was not
easy. President Poroshenko and Mr. Shokin go way back.
In fact, I think that they are godfathers to each
other's children. So this was, you know, this was a big
deal. But we had assistance, as did the IMF, that we
could condition.\523\
---------------------------------------------------------------------------
\523\Yovanovitch deposition, supra note 115, at 102-03.
Evidence suggests that Lutsenko's misconduct was not
trivial. Deputy Assistant Secretary Kent explained that the
U.S. government became disillusioned with Lutsenko in 2017 when
he exposed an undercover investigator working to catch
Ukrainian government officials selling fraudulent biometric
passports.\524\ Kent said that Lutsenko's actions could have
resulted in terrorists obtaining fraudulent biometric
passports.\525\ Whereas Shokin only served for little over a
year, Lutsenko served for years until President Zelensky
removed him.\526\ Although both prosecutors were regarded as
ineffective and corrupt, the U.S. government only took an
official position with respect to Shokin's removal and never as
to Lutsenko's.\527\
---------------------------------------------------------------------------
\524\Kent deposition, supra note 65, at 145-47.
\525\Id. at 147-48.
\526\Id. at 95-103.
\527\Id. at 95.
---------------------------------------------------------------------------
3. There are legitimate questions about the extent to which Ukrainian
government officials worked to oppose President Trump's
candidacy in the 2016 election
Democrats reflexively oppose any discussion about whether
senior Ukrainian government officials worked to oppose
President Trump's candidacy and support former Secretary
Clinton during the 2016 election. Calling these allegations
``debunked'' and ``conspiracy theories,'' Democrats ignore
irrefutable evidence that is inconvenient for their political
narrative. The facts, however, show outstanding questions about
Ukrainian influence in the 2016 presidential election--
questions that the Democrats' witnesses said would be
appropriate for Ukraine to examine.
Prominent Democrats expressed concern about foreign
interference in U.S. elections when they believed that the
Russian government colluded with the Trump campaign in 2016.
For example, in a 2017 hearing about Russian election
interference, then-Ranking Member Schiff said that the ``stakes
are nothing less than the future of liberal democracy.''\528\
But where evidence suggests that Ukraine also sought to
influence the election to the benefit of the Clinton campaign,
now-Chairman Schiff and fellow Democrats have held their
outrage.
---------------------------------------------------------------------------
\528\Open hearing on Russian Active Measures Campaign: Hearing
before the H. Perm. Sel. Comm. on Intelligence, 115th Cong. (2017)
---------------------------------------------------------------------------
Democrats have posited a false choice: that influence in
the 2016 election is binary--it could have been conducted by
Russia or by Ukraine, but not both. This is nonsense. Under
then-Chairman Devin Nunes, Republicans on the House
Intelligence Committee issued a report in March 2018 detailing
Russia's active measures campaign against the United
States.\529\ But Russian interference in U.S. elections does
not preclude Ukrainian officials from also attempting to
influence the election. As Ambassador Volker testified during
his public hearing, it is possible for more than one country to
influence U.S. elections.\530\
---------------------------------------------------------------------------
\529\H. Perm. Sel. Comm. on Intelligence, Report on Russian Active
Measures (Mar. 2018).
\530\Impeachment Inquiry: Ambassador Kurt Volker and Mr. Timothy
Morrison, supra note 8
---------------------------------------------------------------------------
Indisputable evidence shows that senior Ukrainian
government officials sought to influence the 2016 election in
favor of Secretary Clinton and against then-candidate Trump. In
August 2016, then-Ukrainian Ambassador to the United States,
Valeriy Chaly, wrote an op-ed in The Hill criticizing Trump's
policies toward Ukraine.\531\ The same month, the Financial
Times reported that Trump's candidacy led ``Kyiv's wider
political leadership to do something they would never have
attempted before: intervene, however indirectly, in a US
election.''\532\ Ukrainian parliamentarian Serhiy Leshchenko
explained that Ukraine was ``on Hillary Clinton's side.\533\
Other senior Ukrainian officials called candidate Trump a
``clown,'' a ``dangerous misfit,'' and ``dangerous,'' and
alleged that candidate Trump ``challenged the very values of
the free world.''\534\
---------------------------------------------------------------------------
\531\See Chaly, supra note 27.
\532\Olearchyk, supra note 123.
\533\Id.
\534\Id.; Vogel & Stern, supra note 127.
---------------------------------------------------------------------------
Other publicly available information reinforces the
conclusion that senior Ukrainian government officials worked in
2016 to support Secretary Clinton. A January 2017 Politico
article by current-New York Times reporter Ken Vogel detailed
the Ukrainian effort to ``sabotage'' the Trump campaign.\535\
Although Democrats reflexively dismiss the information
presented in this article, neither Politico nor Vogel have
retracted the story.
---------------------------------------------------------------------------
\535\Vogel & Stern, supra note 127.
---------------------------------------------------------------------------
According to Vogel's reporting, the Ukrainian government
worked with a Democrat operative and the media in 2016 to boost
Secretary Clinton's candidacy and hurt President Trump's. Vogel
wrote:
Ukrainian government officials tried to help Hillary
Clinton and undermine Trump by publicly questioning his
fitness for office. They also disseminated documents
implicating a top Trump aide in corruption and
suggested they were investigating the matter, only to
back away after the election. And they helped Clinton's
allies research damaging information on Trump and his
advisers, a Politico investigation found.\536\
---------------------------------------------------------------------------
\536\Id.
Vogel reported how Alexandra Chalupa, a Ukrainian-American
contractor paid by the DNC and working with the DNC and the
Clinton campaign, ``traded information and leads'' about Paul
Manafort, Trump's campaign manager, with staff at the Ukrainian
embassy.\537\ Chalupa also told Vogel that the Ukrainian
embassy ``worked directly with reporters researching Trump,
Manafort, and Russia to point them in the right
directions.''\538\ With the DNC's encouragement, Chalupa asked
Ukrainian embassy staff ``to try to arrange an interview in
which [Ukrainian President] Poroshenko might discuss Manafort's
ties to [Russia-aligned former Ukrainian President Viktor]
Yanukovych.''\539\
---------------------------------------------------------------------------
\537\Id. In April 2019, then-Ambassador Chaly issued a statement to
The Hill denying that the Ukrainian embassy sought to influence the
election. See Official April 25, 2019 statement of the Ukrainian
embassy in Washington to The Hill concerning the activities of
Democratic National Committee Alexandra Chalupa during the 2016 U.S.
election, https://www.scribd.com/document/432699412/Ukraine-Chaly-
Statement-on-Chalupa-042519.
\538\Vogel & Stern, supra note 127.
\539\Id. Interestingly, in August 2019, when Chairman Schiff
tweeted an allegation that U.S. security assistance to Ukraine was tied
up with Ukrainian investigations, Alexandra Chalupa replied that she
had ``a lot of information on this topic.'' See Adam Schiff
(@RepAdamSchiff), Twitter (Aug. 28, 2019, 5:17 p.m.), https://
twitter.com/RepAdamSchiff/status/1166867471862829056. It is unknown
whether Chalupa ever provided information to Chairman Schiff or his
staff.
---------------------------------------------------------------------------
Vogel also spoke on the record to Andrii Telizhenko, a
political officer in the Ukrainian Embassy under Ambassador
Chaly, who corroborated Chalupa's account.\540\ Telizhenko said
that he was instructed by Ambassador Chaly's top aide, Oksana
Shulyar, to ``help Chalupa research connections between Trump,
Manafort, and Russia'' with the goal of generating a hearing in
Congress.\541\ Telizhenko also told Vogel that he was
instructed not to speak to the Trump campaign:
---------------------------------------------------------------------------
\540\Vogel & Stern, supra note 127.
\541\Id.
We had an order not to talk to the Trump team,
because he was critical of Ukraine and the government
and his critical position on Crimea and the conflict. I
was yelled at when I proposed to talk to Trump. The
ambassador said not to get involved--Hillary is going
to win.\542\
---------------------------------------------------------------------------
\542\Id.
Vogel also reported on the actions of Ukrainian
parliamentarian Leshchenko, who spoke out against Manafort, in
part, to show that candidate Trump was a ``pro-Russia
candidate.''\543\ A separate congressional investigation in
2018 learned that Leshchenko was a source for Fusion GPS, the
opposition research firm hired by the DNC's law firm, Perkins
Coie, to gather information about candidate Trump.\544\ Fusion
GPS received information about Manafort that may have
originated from Leshchenko.\545\
---------------------------------------------------------------------------
\543\Id.; Olearchyk, supra note 123.
\544\Transcribed Interview of Nellie Ohr, in Wash., D.C., at 113-15
(Oct. 19, 2018).
\545\Id.
---------------------------------------------------------------------------
The Democrats' witnesses in the impeachment inquiry
testified that the allegations of Ukrainian influence in the
2016 election were appropriate to examine.\546\ Asked about the
Politico reporting, Ambassador Taylor said that, if true, it is
``disappointing'' that some Ukrainian officials worked against
President Trump. He testified:
---------------------------------------------------------------------------
\546\See, e.g., Volker transcribed interview, supra note 60, at
146.
Q. So isn't it possible that Trump administration
officials might have a good-founded belief, whether
true or untrue, that there were forces in the Ukraine
that were operating against them?
A. [B]ased on this [January 2017] Politico article,
which, again, surprises me, disappoints me because I
think it's a mistake for any diplomat or any government
official in one country to interfere in the political
life of another country. That's disappointing.\547\
---------------------------------------------------------------------------
\547\Taylor deposition, supra note 47, at 101.
Ambassador Taylor testified that he was ``surprise[ed]
[and] disappoint[ed]'' that Avakov, an influential member of
the Ukrainian government who still serves in President
Zelensky's government had criticized President Trump during the
2016 campaign.\548\ He testified:
---------------------------------------------------------------------------
\548\Id. at 98-99.
Q. What do you know about Avakov?
A. So he is the Minister of Internal Affairs and was
the Minister of Internal Affairs under President
Poroshenko as one of only two carryovers from the
Poroshenko Cabinet to the Zelensky Cabinet. He, as I
think I mentioned earlier when we were talking about
Lutsenko, the Minister of Interior, which Avakov is
now, controls the police, which gives him significant
influence in the government.
Q. Avakov, he's a relatively influential Minister. Is
that right?
A. That is correct.
Q. Does it concern you that at one time he was being
highly critical of candidate Trump?
A. It does.
Q. And did you ever have any awareness of that before
I called your attention to this?
A. I haven't. This is surprising. Disappointing,
but--\549\
---------------------------------------------------------------------------
\549\Id.
Despite this testimony, Chairman Schiff has prevented
Republican Members from fully assessing the nature and extent
of Ukraine's influence in the 2016 election. Chairman Schiff
refused to invite Alexandra Chalupa or Fusion GPS contractor
Nellie Ohr to testify during public hearings.\550\ Chairman
Schiff declined to concur with a Republican subpoena for
documents relating to the DNC's communications with the
Ukrainian government.\551\ Chairman Schiff declined to concur
with a Republican subpoena for documents relating to the DNC's
work with Alexandra Chalupa.\552\
---------------------------------------------------------------------------
\550\See, e.g., Riley Beggin, House Democrats deny Republicans'
request for whistleblower testimony. Vox, Nov. 10, 2019.
\551\Impeachment Inquiry: Ms. Laura Cooper and Mr. David Hale,
supra note 246.
\552\Id.
---------------------------------------------------------------------------
* * *
There are legitimate concerns about Burisma's corruption
and Hunter Biden's role on the company's board, and Ukrainian
government officials' actions to support Secretary Clinton over
President Trump in the 2016 election. Democrats reflexively
dismiss these concerns because acknowledging them would require
an admission that past U.S. assistance to Ukraine may have been
misspent. As Ambassador Yovanovitch testified:
I think most Americans believe that there shouldn't
be meddling in our elections. And if Ukraine is the one
that had been meddling in our elections, I think the
support that all of you [in Congress] have provided to
Ukraine over the last almost 30 years, I don't know
that--I think people would ask themselves questions
about that.\553\
---------------------------------------------------------------------------
\553\Yovanovitch deposition, supra note 115, at 137.
Similarly, other career foreign service employees spoke
about their emotional investment in U.S. foreign assistance to
Ukraine. Speaking about his reaction to the recent events in
Ukraine, Ambassador Taylor testified that he feels a strong
``emotional attachment, bond, connection to this country and
these people.''\554\ Deputy Assistant Secretary Kent, according
to current State Department employee and former NSC staffer
Catherine Croft, likewise ``has a lot of emotion tied into''
U.S. policy toward Ukraine, saying he ``feels very strongly in
all aspects of our policy with regard to Ukraine.''\555\
President Trump's world view threatens these personal,
subjective interests, which may explain why some are so eager
to discount these allegations.
---------------------------------------------------------------------------
\554\Taylor deposition, supra note 47, at 273.
\555\Croft deposition, supra note 60, at 105-06.
---------------------------------------------------------------------------
F. THE ANONYMOUS WHISTLEBLOWER WHO SERVED AS THE BASIS FOR THE
IMPEACHMENT INQUIRY HAS NO FIRSTHAND KNOWLEDGE OF EVENTS AND A BIAS
AGAINST PRESIDENT TRUMP
Democrats built their impeachment inquiry on the foundation
of the anonymous whistleblower complaint submitted to the
Inspector General of the Intelligence Community on August 12.
This foundation is fundamentally flawed.
The anonymous whistleblower acknowledged having no
firsthand knowledge about the events he or she described. As a
result, his or her complaint mischaracterized important facts
and portrayed events in an inaccurate light. The anonymous
whistleblower reportedly had a professional relationship with
Vice President Joe Biden, which, if true, biases the
whistleblower's impressions of the events as they relate to
Vice President Biden. The anonymous whistleblower also
reportedly communicated initially with House Intelligence
Committee Chairman Adam Schiff, who has been an ardent and
outspoken critic of President Trump, or his staff. Chairman
Schiff's early secret awareness of the issue tainted the
objectivity of the Democrats' impeachment inquiry.
To this day, only one Member of Congress--Chairman Schiff--
knows the identity of the individual whose words sparked the
impeachment of the President. Chairman Schiff has prevented any
objective assessment of the whistleblower's credibility or
knowledge. Chairman Schiff declined to invite the whistleblower
to testify as part of the Democrats' impeachment inquiry, but
only after Chairman Schiff's or his staff's communications with
the whistleblower came to light.\556\ Chairman Schiff rejected
a Republican subpoena for documents relating to the drafting of
the whistleblower complaint and the whistleblower's personal
memorandum written shortly after the July 25 telephone
conversation.\557\
---------------------------------------------------------------------------
\556\See, e.g., Beggin, supra note 550.
\557\Impeachment Inquiry: Ms. Laura Cooper and Mr. David Hale,
supra note 246.
---------------------------------------------------------------------------
The public reporting about the existence of a whistleblower
and his or her sensational allegations about President Trump
generated tremendous public interest. But Americans cannot
assess the credibility, motivations, or biases of the
whistleblower. This analysis is necessary because the
whistleblower's inaccurate assertions, coupled with Chairman
Schiff's selective leaks of cherry-picked information, have
prejudiced the public narrative surrounding President Trump's
telephone call with President Zelensky.
1. The anonymous whistleblower acknowledged having no firsthand
knowledge of the events in question
The anonymous whistleblower has no direct, firsthand
knowledge of the events described in his or her complaint. In
the complaint, the whistleblower acknowledged, ``I was not a
direct witness to most of the events described,'' and admitted
that he or she was not on the July 25 call between President
Trump and President Zelensky.\558\ Instead, the anonymous
whistleblower relied upon indirect, secondhand information
provided by others individuals who are also still unidentified.
The whistleblower's lack of firsthand knowledge undermines the
credibility of his or her accusations.
---------------------------------------------------------------------------
\558\Whistleblower letter, supra note 85, at 1; see also Letter
from Hon. Michael Atkinson, Inspector Gen. of the Intelligence Cmty.,
to Hon. Joseph Maguire, Acting Dir. Of Nat'l Intelligence (Aug. 26,
2019).
---------------------------------------------------------------------------
Testimony provided by officials with firsthand knowledge of
the events rebuts the whistleblower's allegations. Ambassador
Sondland testified that some of the concerns in the August 12
whistleblower complaint may be inaccurate or hyperbole.\559\
For example, both Ambassador Volker and Ambassador Sondland
testified that the whistleblower incorrectly alleged ``that
State Department officials, including Ambassadors Volker and
Sondland, had spoken with Mr. Giuliani to `contain the damage'
to U.S. national security.''\560\ The ambassadors also
disagreed with the whistleblower's statement that they helped
Ukrainian leadership ```navigate' the demands'' from President
Trump.\561\
---------------------------------------------------------------------------
\559\Sondland deposition, supra note 51, at 259-64, 311-14.
\560\Volker transcribed interview, supra note 60, at 100-01;
Sondland deposition, supra note 51, at 261-62, 313.
\561\Volker transcribed interview, supra note 60, at 101; Sondland
deposition, supra note 51, at 259-61, 311-12.
---------------------------------------------------------------------------
In addition, Ambassador Sondland took issue with the
whistleblower's characterization of efforts to arrange a
meeting between President Trump and President Zelensky. The
whistleblower complaint stated:
During this same timeframe, multiple U.S. officials
told me [the anonymous whistleblower] that the
Ukrainian leadership was led to believe that a meeting
or phone call between the President and President
Zelensky would depend on whether Zelensky showed
willingness to ``play ball'' on the issues that had
been publicly aired by Mr. Lutsenko and Mr.
Giuliani.\562\
---------------------------------------------------------------------------
\562\Whistleblower letter, supra note 85, at 7.
Ambassador Sondland testified that he never heard U.S.
officials use the expression ``play ball'' in this
context.\563\
---------------------------------------------------------------------------
\563\Sondland deposition, supra note 51, at 264.
---------------------------------------------------------------------------
2. Press reports suggest that the anonymous whistleblower acknowledged
having a professional relationship with former Vice President
Biden
The anonymous whistleblower reportedly acknowledged having
a professional relationship with Vice President Biden. This
admission is important because Vice President Biden was
referenced in passing on the July 25 call and is a potential
opponent of President Trump in the 2020 presidential election.
It stands to reason that a mention of Vice President Biden--no
matter how brief or innocuous--could stir the passion of
someone who had a professional relationship with him.
On August 26, 2019, Inspector General Atkinson wrote to
Acting Director of National Intelligence (DNI) Joseph Maguire
stating that he found ``some indicia of an arguable political
bias on the part of the [anonymous whistleblower] in favor of a
rival political candidate. . . .''\564\ News reports later
reported that the ``rival political candidate'' referenced in
Atkinson's letter was a 2020 Democrat presidential candidate
with whom that the whistleblower acknowledged having a
``professional relationship.''\565\
---------------------------------------------------------------------------
\564\Letter from Hon. Michael Atkinson, Inspector General of the
Intelligence Community, to Hon. Joseph Maguire, Dir. Of Nat'l
Intelligence, Office of the Dir. of Nat'l Intelligence (Aug. 26, 2019).
\565\Byron York, Whistleblower Had `Professional' Tie to 2020
Democratic Candidate, Wash. Exam., Oct. 8, 2019.
---------------------------------------------------------------------------
Subsequent news reports explained that the whistleblower is
a CIA analyst who had been detailed to the NSC and would have
worked closely with Vice President Biden's office.\566\ This
relationship is significant because President Obama relied upon
Vice President Biden to be the Obama Administration's point
person for Ukrainian policy.\567\ This relationship suggests
that aside from any partisan bias in support of Vice President
Biden's 2020 presidential campaign, the whistleblower may also
have had a bias in favor of Vice President Biden's Ukrainian
policies instead of those of President Trump.
---------------------------------------------------------------------------
\566\See generally Rob Crilly, Steven Nelson, & David Drucker, Joe
Biden Worked with Whistleblower When he was Vice President, Officials
Reveal, Wash. Exam., Oct. 10, 2019; Ben Feuerherd, Whistleblower May
Have Worked with Joe Biden in White House: Report, N.Y. Post, Oct. 10,
2019; Julian Barnes, Michael Schmidt, Adam Goldman, & Katie Benner,
White House Knew of Whistleblower's Allegations Soon After Trump's Call
with Ukraine Leader, N.Y. Times, Sept. 26, 2019.
\567\Greg Myre, What Were the Bidens Doing in Ukraine? 5 Questions
Answered, Nat'l Pub. Radio, Sept. 24, 2019.
---------------------------------------------------------------------------
3. The anonymous whistleblower secretly communicated with Chairman
Schiff or his staff
According to an admission from Chairman Schiff, the
anonymous whistleblower communicated with Chairman Schiff's
staff prior to submitting his or her complaint. This early,
secret involvement of Chairman Schiff severely prejudices the
objectivity of the whistleblower's allegations, given Chairman
Schiff's obsession with attacking President Trump for partisan
gain.
Since 2016, Chairman Schiff has been a chief ringleader in
Congress for asserting that President Trump colluded with
Russia, going so far as to allege that he had secret evidence
of collusion.\568\ Now Chairman Schiff is the investigator-in-
chief of President Trump's July 25 phone call with Ukrainian
President Zelensky. Chairman Schiff led the investigation's
first phase from behind the closed doors of his Capitol
basement bunker, even though the depositions were all
unclassified. Chairman Schiff did so purely for information
control--allowing him to leak selected pieces of information to
paint a misleading public narrative.
---------------------------------------------------------------------------
\568\See, e.g., Kelsey Tamborrino, Warner: `Enormous amounts of
evidence' of possible Russia collusion, Politico, Mar. 3, 2019.
---------------------------------------------------------------------------
Chairman Schiff has publicly fabricated evidence about
President Trump's July 25 phone call and misled the American
public about his awareness of the whistleblower allegations. On
September 26, at a public hearing of the House Intelligence
Committee, Chairman Schiff opened the proceedings by
fabricating the contents of President Trump's call with
President Zelensky to make the conversation seem sinister.\569\
Pretending to be President Trump, Chairman Schiff said in part:
---------------------------------------------------------------------------
\569\Whistleblower disclosure, supra note 1.
I hear what you want. I have a favor I want from you
though. And I'm going to say this only seven times so
you better listen good. I want you to make up dirt on
my political opponent, understand. Lots of it.\570\
---------------------------------------------------------------------------
\570\Id.
These words were never uttered by President Trump. When
Chairman Schiff rightly faced criticism for his actions, he
blamed others for not understanding that he was joking.\571\
Republicans sought to hold Chairman Schiff accountable for his
fabrication of evidence; however, Democrats prevented the House
from voting on a censure resolution.\572\
---------------------------------------------------------------------------
\571\Id.
\572\Katherine Tully-McManus, Republican effort to censure Adam
Schiff halted, Roll Call, Oct. 21, 2019.
---------------------------------------------------------------------------
In October 2019, the New York Times reported that the
whistleblower contacted a staff member on the House
Intelligence Committee--chaired by Chairman Schiff--after
asking a colleague to convey his or her concerns about the July
25 call to the CIA's top lawyer.\573\ Chairman Schiff, however,
had denied ever communicating directly with the
whistleblower,\574\ and the whistleblower failed to disclose
that he or she had contacted Chairman Schiff's staff when asked
by the Intelligence Community Inspector General.\575\ Chairman
Schiff acknowledged his early awareness of the whistleblower's
allegations only after he was caught.\576\ The Washington Post
gave Chairman Schiff ``Four Pinocchios''--its worst rating--for
``clearly ma[king] a statement that was false.''\577\
---------------------------------------------------------------------------
\573\Julian Barnes, Michael Schmidt, & Matthew Rosenberg, Schiff
Got Early Account of Accusations as Whistleblower's Concerns Grew, N.Y.
Times, Oct. 2, 2019.
\574\See, e.g., Glenn Kessler, Schiff's false claim his committee
had not spoken to the whistleblower, Wash. Post, Oct. 4, 2019.
\575\Andrew O'Reilly, Schiff Admits He Should Have Been `Much More
Clear' About Contact with Whistleblower, Fox News, Oct. 13, 2019.
\576\Schiff Got Early Account of Accusations as Whistleblower's
Concerns Grew, supra note 573.
\577\Schiff's false claim his committee had not spoken to the
whistleblower, supra note 574.
---------------------------------------------------------------------------
Chairman Schiff's early awareness of the whistleblower
complaint explains why he publicly posited a connection between
paused U.S. security assistance and Ukrainian investigations
well before the whistleblower complaint became public. On
August 28, 2019, before the public became aware of the
whistleblower complaint or any allegations that U.S. security
assistance to Ukraine was linked to Ukraine investigating
President Trump's political rival, Chairman Schiff made such a
connection in a tweet.\578\ According to the New York Times,
Chairman Schiff knew ``the outlines'' of the anonymous
whistleblower complaint at the time that he issued this
tweet.\579\
---------------------------------------------------------------------------
\578\Adam Schiff (@RepAdamSchiff), Twitter, (Aug. 28, 2019, 8:17
PM), https://twitter.com/RepAdamSchiff/status/1166867471862829056.
\579\Barnes, Schmidt, & Rosenberg, supra note 573.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Schiff's early awareness also explains why he
pressured Inspector General Atkinson to produce the
whistleblower's complaint to Congress, despite Acting DNI
Maguire's determination that transmittal was not required
because the complaint did not meet the legal definition of
``urgent concern.''\580\
---------------------------------------------------------------------------
\580\U.S. Dep't of Justice, Office of Legal Counsel, ``Urgent
Concern'' Determination by the Inspector General of the Intelligence
Community 2 (2019).
---------------------------------------------------------------------------
* * *
The allegations of the anonymous whistleblower--the
foundation for the Democrats' impeachment inquiry--are
fundamentally flawed. The whistleblower acknowledged having no
direct, firsthand knowledge of the events he or she described.
The whistleblower reportedly acknowledged a professional
relationship with Vice President Joe Biden, which, if true,
suggests a bias toward Vice President Biden and against
President Trump. Finally, the whistleblower secretly
communicated with staff of Chairman Schiff, who subsequently
misled the public about this communication.
If Democrats are serious about impeaching the President--
about undoing the will of the American people--they cannot
limit the evidence and information available to the House of
Representatives. The motivations, biases, and credibility of
the anonymous whistleblower are necessary aspects of any
serious examination of the facts in question.
II. The Evidence Does Not Establish That President Trump Engaged in a
Cover-up of His Interactions With Ukrainian President Zelensky
Democrats also argue that President Trump is engaged in a
cover-up of his July 25 telephone conversation by hiding
evidence of his alleged wrongdoing.\581\ There is no basis for
this allegation. The President has been transparent about the
issues surrounding the anonymous whistleblower complaint and
the telephone call with President Zelensky.
---------------------------------------------------------------------------
\581\See, e.g., Speaker Nancy Pelosi, Transcript of Pelosi Weekly
Press Conference (Sept. 26, 2019) (``The [whistleblower] complaint
reports `repeated abuse of an electronics record system designed to
store classified, sensitive national security information, which the
White House used to hide information of a political nature.' This is a
cover-up. This is a cover-up.'').
---------------------------------------------------------------------------
On September 24, Speaker Pelosi launched the impeachment
inquiry based solely on reports of the telephone call between
President Trump and President Zelensky. She had not listened to
the conversation; she had not read the call summary or the
whistleblower complaint. The following day, to offer
unprecedented transparency and prove there was no quid pro quo,
President Trump declassified the July 25 call summary for the
American people to read for themselves. President Trump also
released a redacted version of the anonymous whistleblower
complaint and he released the summary of his April 21 telephone
conversation with President Zelensky. Even the Democrats' best
evidence of a ``cover-up''--the restricted access to the call
summary--is unpersuasive. Evidence suggests that the call
summary was restricted not for a malicious intention but as a
result of the proliferation of leaks by unelected bureaucrats,
including leaks of President Trump's conversations with foreign
leaders.
A. PRESIDENT TRUMP DECLASSIFIED AND RELEASED PUBLICLY THE SUMMARY OF
HIS JULY 25 PHONE CALL WITH PRESIDENT ZELENSKY
On July 25, President Trump and President Zelensky spoke by
telephone.\582\ Normally, presidential conversations with
foreign leaders are presumptively classified because ``[t]he
unauthorized disclosure of foreign government information is
presumed to cause damage to the national security.''\583\ In
fact, the call summary of President Trump's call with President
Zelensky was initially marked as classified.\584\
---------------------------------------------------------------------------
\582\Memorandum of Telephone Conversation, supra note 15.
\583\Exec. Order 13,526 (2009).
\584\See Memorandum of Telephone Conversation, supra note 15.
---------------------------------------------------------------------------
On September 25, after questions arose about the contents
of the phone call, President Trump chose to declassify and
release the transcript in the interest of full transparency. He
wrote on Twitter: ``I am currently at the United Nations
representing our Country, but have authorized the release
tomorrow of the complete, fully declassified and unredacted
transcript of my phone conversation with President Zelensky of
Ukraine.''\585\ The President stressed his goal that Americans
could read for themselves the contents of the call: ``You will
see it was a very friendly and totally appropriate call. No
pressure unlike Joe Biden and his son, NO quid pro quo! This is
nothing more than a continuation of the Greatest and most
Destructive Witch Hunt of all time.''\586\
---------------------------------------------------------------------------
\585\Donald J. Trump (@realDonaldTrump), Twitter (Sept. 24, 2019,
11:12 a.m.), https://twitter.com/realdonaldtrump/status/
1176559966024556544.
\586\Donald J. Trump (@realDonaldTrump), Twitter (Sept. 24, 2019,
11:12 a.m.), https://twitter.com/realdonaldtrump/status/
1176559970390806530.
---------------------------------------------------------------------------
B. PRESIDENT TRUMP RELEASED A REDACTED VERSION OF THE CLASSIFIED
ANONYMOUS WHISTLEBLOWER COMPLAINT
Like the call summary, the anonymous whistleblower
complaint was initially classified. The complaint was
reportedly ``hand delivered . . . to Capitol Hill'' hours after
President Trump released the call summary.\587\ Although a
limited number of Members of Congress--like Chairman Schiff--
could access the classified complaint, the American public
could not. The President released a redacted version of the
anonymous whistleblower complaint so that every American could
read it for themselves.\588\
---------------------------------------------------------------------------
\587\Dana Bash, et al, Whistleblower complaint about Trump
declassified and may be released Thursday, CNN, Sept. 26, 2019.
\588\Whistleblower complaint says White House tried to ``lock
down'' Ukraine call records, CBS News, Sept. 26, 2019.
---------------------------------------------------------------------------
C. PRESIDENT TRUMP RELEASED PUBLICLY THE SUMMARY OF HIS APRIL 21 PHONE
CALL WITH PRESIDENT ZELENSKY
President Trump first spoke by telephone with President
Zelensky on April 21, 2019, the date on which President
Zelensky won the Ukrainian presidential election.\589\ On
November 15, the President publicly released the summary of
this April conversation.\590\ President Trump explained that he
chose to release the summary of this call to ``continue being
the most transparent President in history.''\591\
---------------------------------------------------------------------------
\589\Memorandum of Telephone Conversation, supra note 10.
\590\Mark Mazzetti & Eileen Sullivan, Rough transcript of Trump's
first phone call with Ukrainian leader released, N.Y. Times, Nov. 15,
2019.
\591\Donald J. Trump (@realDonaldTrump), Twitter (Nov. 11, 2019,
3:35 p.m.), https://twitter.com/realDonaldTrump/status/
1194035922066714625.
---------------------------------------------------------------------------
D. THE TRUMP ADMINISTRATION HAS EXPERIENCED A SURGE IN SENSITIVE LEAKS,
INCLUDING DETAILS OF THE PRESIDENT'S COMMUNICATIONS WITH FOREIGN
LEADERS
The Trump Administration has experienced an unprecedented
number of potentially damaging leaks from the U.S. national
security apparatus.\592\ According to a report from the Senate
Homeland Security and Governmental Affairs Committee in May
2017, these leaks have flowed seven times faster under
President Trump than during former Presidents Obama and Bush's
administrations--averaging almost one per day.\593\ The report
explained:
---------------------------------------------------------------------------
\592\HSGAC report, supra note 409.
\593\Id.
From the morning of President Trump's inauguration,
when major newspapers published information about
highly sensitive intelligence intercepts, news
organizations have reported on an avalanche of leaks
from officials across the U.S. government. Many
disclosures have concerned the investigations of
alleged Russian interference in the 2016 election, with
the world learning details of whose communications U.S.
intelligence agencies are monitoring, what channels are
being monitored, and the results of those intercepts.
All such revelations are potential violations of
federal law, punishable by jail time.
But the leak frenzy has gone far beyond the Kremlin
and has extended to other sensitive information that
could harm national security. President Trump's private
conversations with other foreign leaders have shown up
in the press, while secret operations targeting
America's most deadly adversaries were exposed in
detail.
As The New York Times wrote in a candid self-
assessment: ``Journalism in the Trump era has featured
a staggering number of leaks from sources across the
federal government.'' No less an authority than
President Obama's CIA director called the deluge of
state secrets ``appalling.'' These leaks do not occur
in a vacuum. They can, and do, have real world
consequences for national security.\594\
---------------------------------------------------------------------------
\594\Id.
As the Washington Post explained, ``Every presidential
administration leaks. So far, the Trump White House has
gushed.''\595\ Sensitive national security information--for
which public disclosure could harm U.S. interests--found its
way into mainstream news outlets such as the New York Times,
the Washington Post, NBC, and Associated Press.\596\ This
unfortunate reality helps to explain the circumstances by which
the NSC handled the summary of President Trump's July 25
telephone conversation with President Zelensky.
---------------------------------------------------------------------------
\595\Paul Farhi, The Trump administration has sprung a leak. Many
of them, in fact, Wash. Post, Feb. 5, 2017.
\596\HSGAC report, supra note 409.
---------------------------------------------------------------------------
E. THE EVIDENCE DOES NOT ESTABLISH THAT ACCESS TO THE JULY 25 CALL
SUMMARY WAS RESTRICTED FOR INAPPROPRIATE REASONS
The anonymous whistleblower complaint alleged that NSC
staffers deliberately placed the call summary of the July 25
call on a highly secure server to hide its contents.\597\ This
allegation has not been proven. In fact, the Democrats'
witnesses testified that it was mistakenly place on a highly
classified server. Evidence suggests that call summaries of the
President's conversations with other foreign leaders have been
subject to restricted access due to a pattern of leaks.
---------------------------------------------------------------------------
\597\Whistleblower letter, supra note 85.
---------------------------------------------------------------------------
As the Trump Administration dealt with an unprecedented
number of national security leaks, it sought to take
appropriate precautions. Public reporting indicates that the
NSC began restricting access to summaries of the President's
communications with foreign leaders following the leak of
President Trump's conversation in May 2017 with senior Russian
officials.\598\ Dr. Fiona Hill, the former NSC Senior Director
for Europe, testified that a summary of this meeting was not
initially restricted and that details of the conversation
``seemed to immediately end up in the press.''\599\ Following
this leak, the White House began a practice of restricting
access to summaries of calls and meetings with foreign
leaders.\600\ Current and former White House officials said
that it made sense to restrict access to calls given the number
of leaks.\601\
---------------------------------------------------------------------------
\598\ See, e.g., Julian E. Barnes et al., White House Classified
Computer System is Used to Hold Transcripts of Sensitive Calls, N.Y.
Times, Sept. 29, 2019.
\599\ Hill deposition, supra note 12, at 294.
\600\ Barnes, et al., supra note 598.
\601\ Id.
---------------------------------------------------------------------------
With respect to the summary of President Trump's
conversation with President Zelensky on July 25, NSC Senior
Director Tim Morrison testified in his closed-door deposition
that although he ``was not concerned that anything illegal was
discussed,'' he was concerned about a leak of the summary of
President Trump's call with President Zelensky.\602\ He
explained that he was ``concerned about how the contents [of
the call summary] would be used in Washington's political
process.''\603\ In his public testimony, Morrison elaborated:
---------------------------------------------------------------------------
\602\ Morrison deposition, supra note 12, at 16.
\603\ Id. at 44.
Q. And you were concerned about it leaking because
you were worried about how it would play out in
Washington's polarized political environment, correct?
A. Yes.
Q. And you were also worried how that would lead to
the bipartisan support here in Congress towards
Ukraine, right?
A. Yes.
Q. And you were also concerned that it might affect
the Ukrainians' perception negatively.
A. Yes.
Q. And, in fact, all three of those things have
played out, haven't they?
A. Yes.\604\
---------------------------------------------------------------------------
\604\ Impeachment Inquiry: Ambassador Kurt Volker and Timothy
Morrison, supra note 8.
LTC Vindman--the NSC staffer who raised concerns about the
contents of call--testified there was no ``malicious intent''
in restricting access to the summary.\605\ Morrison also
testified that call summary was mistakenly placed on a secure
server with restricted access.\606\ He explained:
---------------------------------------------------------------------------
\605\ Vindman deposition, supra note 12, at 124.
\606\ Morrison deposition, supra note 12, at 54-57.
Q. And were you ever provided with an explanation for
why [the call summary] was placed in the highly
classified system?
A. Yes.
Q. What was the explanation you were given?
A. It was a mistake.
Q. It was a mistake?
A. Yes.\607\
---------------------------------------------------------------------------
\607\ Id. at 54.
In his public testimony, Morrison reiterated that the
placement of the call summary on a secure server was an
administrative error.\608\ He explained that NSC Legal Advisor
John Eisenberg sought to restrict access to the summary, but
that his direction was mistakenly interpreted to mean placing
the summary on a secure server.\609\ He testified:
---------------------------------------------------------------------------
\608\ Impeachment Inquiry: Ambassador Kurt Volker and Timothy
Morrison, supra note 8.
\609\ Id.
I spoke with the NSC Executive Secretariat staff,
asked them why [the summary had been removed from the
normal server]. And they did their research, and they
informed me it had been moved to the higher
classification system at the direction of John
Eisenberg, whom I then asked why. I mean, that's--if
that was the judgment he made, that's not necessarily
mine to question, but I didn't understand it. And he
essentially told me, ``I gave no such direction.'' He
did his own inquiry, and he represented back to me that
it was--his understanding was that it was a kind of
administrative error, that when he also gave direction
to restrict access, the Executive Secretariat staff
understood that as an apprehension that there was
something in the content of the [call summary] that
could not exist on the lower classification
system.\610\
---------------------------------------------------------------------------
\610\ Id.
Morrison also explained that there was no malicious intent
in moving the transcript to the secure server.\611\
---------------------------------------------------------------------------
\611\ Id.
---------------------------------------------------------------------------
To the extent Democrats allege that President Trump sought
to cover up his July 25 telephone conversation with President
Zelensky, the facts do not support such a charge. Indeed,
President Trump has declassified and publicly released the July
25 call summary. He has also released a redacted version of the
classified anonymous whistleblower complaint and released the
call summary of his first phone call with President Zelensky,
on April 21. Although the July 25 call summary was located on a
secure White House server prior to its public release,
testimony shows that its placement on the server was an
``administrative error.'' In light of substantial leaks of
sensitive national security information--including the
President's conversations with foreign leaders--testimony shows
that the NSC Legal Advisor sought to restrict access to the
summary. In attempting to carry out this direction, the NSC
executive secretariat staff incorrectly placed the summary on a
secure server. Taken, together, these facts do not establish
that President Trump sought to cover up his interactions with
President Zelensky.
III. The Evidence Does Not Establish That President Trump Obstructed
Congress in the Democrats' Impeachment Inquiry
Democrats allege that President Trump has obstructed
Congress by declining to participate in Speaker Pelosi's
impeachment inquiry.\612\ Under any fair assessment of the
facts, however, President Trump has not obstructed Congress. In
fact, the President personally urged at least one witness to
cooperate with the Democrats' impeachment inquiry and to
testify truthfully.\613\ But Democrats cannot and should not
impeach President Trump for declining to submit himself to an
abusive and unfair process.
---------------------------------------------------------------------------
\612\See, e.g., Amber Phillips, How the House Could Impeach Trump
for Obstructing its Probe, Wash. Post, Oct. 8, 2019.
\613\Sondland deposition, supra note 51, at 38.
---------------------------------------------------------------------------
In the Democrats' impeachment inquiry, fairness is not an
asset guaranteed or even recognized. Democrats have told
witnesses in the inquiry that a failure to adhere strictly to
their demands ``shall constitute evidence of obstruction of the
House's impeachment inquiry and may be used as an adverse
inference against the President.''\614\ Democrats have
threatened to withhold the salaries for agency employees as
punishment for not meeting Democrat demands.\615\ As Chairman
Schiff explained the Democrat logic, any disagreement with
Democrats amounts to obstruction: ``The failure to produce this
witness, the failure to produce these documents, we consider
yet additionally strong evidence of obstruction of the
constitutional functions of Congress, a coequal branch of
government.''\616\
---------------------------------------------------------------------------
\614\See, e.g., letter from Eliot L. Engel, Chairman, H. Comm. on
Foreign Affairs, et al. to John Eisenberg, Nat'l Sec. Council (Oct. 30,
2019).
\615\See letter from Eliot L. Engel, Chairman, H. Comm. on Foreign
Affairs, et al. to John J. Sullivan, Dep. Sec'y, Dep't of State (Oct.
1, 2019).
\616\Phillips, supra note 612.
---------------------------------------------------------------------------
The Democrats' actions are fundamentally abusive. In any
just proceeding, the President ought to be afforded an
opportunity to raise defenses without Democrats considering it
to be de facto evidence of obstruction. In any just proceeding,
investigators would not impute the conduct of a witness to the
President or use a witness's refusal to cooperate with an
unfair process as an ``adverse inference'' against the
President.
The Democrats' obstruction arguments are also divorced from
historical precedent for House impeachment proceedings and
basic legal concepts of due process and the presumption of
innocence. Past bipartisan precedent for presidential
impeachment inquiries guaranteed fundamental fairness by
authorizing bipartisan subpoena authority; providing the
President unrestricted access to information presented; and
allowing the President's counsel to identify relevant witnesses
and evidence, cross examine witnesses, and respond to evidence
collected. These guarantees of due process and fundamental
fairness are not present in the Democrats' impeachment
resolution against President Trump.
Congressional oversight of the Executive Branch is an
important and serious undertaking designed to improve the
efficiency and accountability of the federal government. The
White House has said that it is willing to work with Democrats
on legitimate congressional oversight requests.\617\ However,
public statements from prominent Democrats suggest they are
pursuing impeachment purely for partisan reasons--that they
seeking to prevent President Trump's reelection in 2020.\618\
The Democrats' unfair and abusive impeachment process confirms
that they are not interested in pursuing a full understanding
of the facts.
---------------------------------------------------------------------------
\617\See letter from Pat A. Cipollone, Counsel to the President to
Speaker Nancy Pelosi et al. 8 (Oct. 8, 2019).
\618\See, e.g., Weekends with Alex Witt (MSNBC television broadcast
May 5, 2019) (interview with Rep. Al Green).
---------------------------------------------------------------------------
Even despite the Democrats' partisan rhetoric and unfair
process, President Trump has been transparent about his
interactions with Ukrainian President Zelensky. President Trump
has released to the public documents directly relevant the
subject matter and he has spoken publicly about the issues.
Democrats cannot justly condemn President Trump for declining
to submit to their abusive and fundamentally unfair process.
A. DEMOCRATS HAVE ABANDONED LONG-STANDING PRECEDENT BY FAILING TO
GUARANTEE DUE PROCESS AND FUNDAMENTAL FAIRNESS IN THEIR IMPEACHMENT
INQUIRY
The two recent impeachment investigations into presidents
by the House of Representatives were largely identical to each
other despite the passage of two decades. In 1974, the House
authorized an impeachment inquiry into President Nixon by
debating and passing House Resolution 803.\619\ This resolution
authorized the Committee on the Judiciary to issue subpoenas,
including those offered by the minority; to sit and act without
regard to whether the House stood in recess; and to expend
funds in the pursuit of the investigation.\620\ In 1998, the
House passed House Resolution 581, a nearly identical
resolution authorizing an impeachment inquiry into President
Clinton.\621\
---------------------------------------------------------------------------
\619\H. Res. 803, 93rd Cong. (1974).
\620\See Id.
\621\H. Res. 581, 105th Cong. (1998).
---------------------------------------------------------------------------
In 1974, the House undertook this action because ``the rule
of the House defining the jurisdiction of committees does not
place jurisdiction over impeachment matters in the Judiciary
Committee. In fact, it does not place such jurisdiction
anywhere.''\622\ Passing a resolution authorizing the inquiry
was ``a necessary step if we are to meet our obligations [under
the Constitution].''\623\ By passing the resolution, the House
sought to make ``[t]he committee's investigative authority . .
. fully coextensive with the power of the House in an
impeachment investigation . . . .''\624\
---------------------------------------------------------------------------
\622\130 Cong. Rec. 2351 (Feb. 6, 1974) (statement of Rep.
Hutchinson).
\623\Id. at 2350 (statement of Rep. Rodino).
\624\H.R. Rep. No. 93-774, at 3 (1974).
---------------------------------------------------------------------------
Notably, in empowering the Judiciary Committee to conduct
the Nixon impeachment inquiry, the House granted subpoena power
to the minority, an action that was ``against all precedents''
at the time.\625\ During debate, Members made it ``crystal
clear that the authority given to the minority [ranking] member
and to the chairman, the right to exercise authority [to issue
a subpoena], is essentially the same. It is the same. Both are
subject to a veto by a majority of the membership of that
committee.''\626\
---------------------------------------------------------------------------
\625\130 Cong. Rec. at 2352 (statement of Rep. Brooks).
\626\Id.
---------------------------------------------------------------------------
In 1998, the House similarly passed a resolution
authorizing an impeachment inquiry because the ``[Judiciary]
Committee decided that it must receive authorization from the
full House before proceeding . . . .''\627\ The Judiciary
Committee reached this conclusion ``[b]ecause impeachment is
delegated solely to the House of Representatives by the
Constitution, [and therefore] the full House of Representatives
should be involved in critical decision making regarding
various stages of impeachment.''\628\
---------------------------------------------------------------------------
\627\H.R. Rep. No. 105-795, at 24 (1998).
\628\Id.
---------------------------------------------------------------------------
In putting forth this resolution for consideration by the
House, the Judiciary Committee made several commitments with
respect to ensuring ``procedural fairness'' of the impeachment
inquiry. For instance, the Judiciary Committee voted to allow
the President or his counsel to be present at all executive
sessions and open hearings and to allow the President's counsel
to cross examine witnesses, make objections regarding
relevancy, suggest additional evidence or witnesses that the
committee should receive, and to respond to the evidence
collected.\629\
---------------------------------------------------------------------------
\629\Id. at 25-26.
---------------------------------------------------------------------------
The fundamental fairness and due process protections
guaranteed in the Nixon and Clinton impeachment proceedings are
missing from Speaker Pelosi's impeachment inquiry. The
Democrats' impeachment inquiry offers a veneer of legitimacy
that hides a deeply partisan and one-sided process. The
impeachment resolution passed by Democrats in the House--
against bipartisan opposition--allows Democrats to maintain
complete control of the proceedings.\630\ The resolution denies
Republicans co-equal subpoena authority and requires the
Democrat chairmen to concur with Republican subpoenas--unlike
Democrat subpoenas, which the chairmen may issue with no
Republican input.\631\ The Democrat impeachment resolution
requires Republicans to specifically identify and explain the
need for witnesses 72 hours before the first impeachment
hearing--without a similar requirement for Democrats.\632\ Most
importantly, the Democrats' resolution excludes the President's
counsel from House Intelligence Committee Chairman Adam
Schiff's proceedings and provides House Judiciary Committee
Chairman Jerry Nadler with discretion to do the same.\633\ In
short, these partisan procedures dramatically contradict the
bipartisan Nixon and Clinton precedents.
---------------------------------------------------------------------------
\630\H. Res. 660, 116th Cong. (2019).
\631\Id.
\632\Id.
\633\Id.
---------------------------------------------------------------------------
B. DEMOCRATS HAVE ENGAGED IN AN ABUSIVE PROCESS TOWARD A PRE-DETERMINED
OUTCOME
Since the beginning of the 116 Congress, Democrats have
sought to impeach President Trump. Just hours after her
swearing in, Rep. Rashida Tlaib told a crowd at a public event
that ``[Democrats are] going to go in there, and we're going to
impeach the [expletive deleted].''\634\ Rep. Brad Sherman
introduced articles of impeachment against President Trump on
the very first day of the Democrat majority.\635\ Rep. Al Green
separately introduced articles of impeachment in July 2019, and
even forced the House to consider the measure.\636\ The House
tabled Rep. Green's impeachment resolution by an overwhelming
bipartisan majority--332 ayes to 95 nays.\637\
---------------------------------------------------------------------------
\634\Nicholas Fandos, Rashida Tlaib's Expletive-Laden Cry to
Impeach Trump Upends Democrats' Talking Points, N.Y. Times, Jan. 4,
2019.
\635\H. Res. 13, 116th Cong. (2019).
\636\H. Res. 498, 116th Cong. (2019).
\637\Id. (Roll call vote 483).
---------------------------------------------------------------------------
Such a fervor to impeach a political opponent for purely
partisan reasons was what Alexander Hamilton warned of as the
``greatest danger'' in Federalist No. 65: that ``the decision
[to impeach] will be regulated more by the comparative strength
of parties, than by the real demonstrations of innocence or
guilt.''\638\ Indicative of this partisan fervor, Democrats
have already forced the House to consider three resolutions of
impeachment--offered by Democrats after no investigation,
report, or process of any kind--since President Trump took
office.\639\
---------------------------------------------------------------------------
\638\Federalist No. 65 (Alexander Hamilton).
\639\See H. Res. 646, 115th Cong. (2018); H. Res. 705, 115th Cong.
(2018); H. Res. 498, 116th Cong. (2019).
---------------------------------------------------------------------------
During the consideration of articles of impeachment against
President Clinton, Democrats argued that ``[i]f we are to
impeach the President, it should be at the end of a fair
process. . . . [and not through decisions] made on a strictly
partisan basis.''\640\ Rep. Zoe Lofgren, now a senior member of
the Judiciary Committee, testified then before the Rules
Committee on the resolution authorizing the Clinton impeachment
inquiry. She said:
---------------------------------------------------------------------------
\640\Impeachment Inquiry: William Jefferson Clinton, President of
the United States, 105th Cong., Consideration of Articles of
Impeachment 82 (Comm. Print 1998) (statement of Rep. Bobby Scott).
Under our Constitution, the House of Representatives
has the sole power of impeachment. This is perhaps our
single most serious responsibility short of a
declaration of war. Given the gravity and magnitude of
this undertaking, only a fair and bipartisan approach
to this question will ensure that truth is discovered,
honest judgments rendered, and the constitutional
requirement observed. Our best yardstick is our
historical experience. We must compare the procedures
used today with what Congress did a generation ago when
a Republican President was investigated by a Democratic
House.\641\
---------------------------------------------------------------------------
\641\Hearing before the Committee on Rules on H. Res. 525, 105th
Cong., 2d Sess. 108 (1998).
However, Speaker Pelosi's impeachment inquiry has been
divorced from historical experience and has borne no markings
of a fair process. During the first several weeks, the Speaker
asserted that a vote authorizing the inquiry was
unnecessary.\642\ This process allowed Chairman Schiff to
conduct his partisan inquiry behind closed doors with only a
limited group of Members present. It also allowed Chairman
Schiff to selectively leak cherry-picked information to paint a
misleading public narrative. Chairman Schiff failed to respond
to Republican requests for witnesses,\643\ and directed
witnesses not to answer questions from Republicans.\644\
Chairman Schiff even declined to share closed-door deposition
transcripts with Republican Members.\645\
---------------------------------------------------------------------------
\642\See, e.g., Haley Byrd, Kevin McCarthy Calls on Nancy Pelosi to
Suspend Impeachment Inquiry, CNN, Oct. 3, 2019.
\643\Letter from Jim Jordan, Ranking Member, H. Comm. on Oversight
& Reform, et al., to Adam Schiff, Chairman, H. Perm. Sel. Comm. on
Intelligence (Oct. 23, 2019).
\644\See, e.g., Vindman deposition, supra note 12, at 78-80, 103-
05.
\645\See, e.g., Deirdre Shesgreen & Bart Jansen, House Republicans
complain about limited access to closed-door House impeachment
investigation sessions, USA Today, Oct. 16, 2019.
---------------------------------------------------------------------------
During the public hearings, despite the modicum of minority
rights outlined in the Democrats' impeachment resolution,
Chairman Schiff has continued to trample long-held minority
rights. Chairman Schiff interrupted Republican Members during
questioning and directed witnesses not to answer Republican
questions.\646\ Chairman Schiff declined to invite all the
witnesses identified by Republicans as relevant to the
inquiry.\647\ Chairman Schiff declined to honor Republican
subpoenas for documents and witnesses, and then violated House
rules and the Democrats' impeachment resolution to vote down
the subpoenas without sufficient notice or even any
debate.\648\
---------------------------------------------------------------------------
\646\See, e.g., Impeachment Inquiry: Ambassador William B. Taylor
and Mr. George Kent, supra note 2; Impeachment Inquiry: Ambassador
Marie Yovanovitch, supra note 4.
\647\See, e.g., Beggin, supra note 550.
\648\Impeachment Inquiry: Ms. Laura Cooper and Mr. David Hale,
supra note 246.
---------------------------------------------------------------------------
This is the very sort of process that Democrats had
previously decried as ``what happens when a legislative chamber
is obsessively preoccupied with investigating the opposition
rather than legislating for the people who elected them to
office.''\649\ Rep. Jerrold Nadler, now chairman of the
Judiciary Committee, once argued that:
---------------------------------------------------------------------------
\649\Impeachment Inquiry: William Jefferson Clinton, President of
the United States, supra note 640, at 94 (statement of Rep. Zoe
Lofgren).
The effect of impeachment is to overturn the popular
will of voters as expressed in a national election. . .
. There must never be a narrowly voted impeachment or
an impeachment substantially supported by one of our
major political parties and largely opposed by the
other. Such an impeachment would lack legitimacy and
produce the divisiveness and bitterness in our politics
for years to come and will call into question the very
legitimacy of our political institutions.\650\
---------------------------------------------------------------------------
\650\Id. at 77 (statement of Rep. Jerrold Nadler) (emphasis added).
During the impeachment proceedings for President Clinton,
Democrats warned against ``dump[ing] mountains of salacious,
uncross-examined and otherwise untested materials onto the
Internet, and then . . . sorting through boxes of documents to
selectively find support for a foregone conclusion.''\651\ But
now, in Speaker Pelosi's impeachment inquiry, as conducted by
Chairman Schiff, the Democrats' old warnings have become the
very process by which their current impeachment inquiry has
proceeded.
---------------------------------------------------------------------------
\651\Id. at 82 (statement of Rep. Bobby Scott).
---------------------------------------------------------------------------
C. PRESIDENT TRUMP MAY RAISE PRIVILEGES AND DEFENSES IN RESPONSE TO
UNFAIR, ABUSIVE PROCEEDINGS
Speaker Pelosi's impeachment inquiry, as conducted by
Chairman Schiff, has abandoned due process and the presumption
of innocence that lies at the heart of western legal
systems.\652\ Due to this abusive conduct and the Democrats'
relentless attacks on the Trump Administration, President Trump
may be rightly concerned about receiving fair treatment from
House Democrats during this impeachment inquiry.
---------------------------------------------------------------------------
\652\See, e.g., Id. at 102 (statement of Rep. Maxine Waters) (``As
Members of Congress have sworn to uphold the Constitution, we must
always insist on equal and just treatment under the law. The
presumption of innocence until proven guilty is central and basic to
our system of justice.'').
---------------------------------------------------------------------------
During the Clinton impeachment proceedings, Rep. Bobby
Scott, now a senior member of the Democrat caucus, argued that
the impeachment process should ``determine[ ], with a
presumption of innocence, whether those allegations [against
President Clinton] were true by using cross-examination of
witnesses and other traditionally reliable evidentiary
procedures.''\653\ Similarly, Rep. Jerrold Nadler argued then
that ``[w]e have been entrusted with the grave and awesome duty
by the American people, by the Constitution and by history. We
must exercise that duty responsibly. At a bare minimum, that
means the President's accusers must go beyond hearsay and
innuendo and beyond demands that the President prove his
innocence of vague and changing charges.''\654\
---------------------------------------------------------------------------
\653\Id. at 82 (statement of Rep. Bobby Scott).
\654\Id. at 78 (statement of Rep. Jerrold Nadler) (emphasis added).
---------------------------------------------------------------------------
Furthermore, Democrats had previously argued that the
assertion of privileges by a president does not constitute an
impeachable offense. During the Clinton impeachment
proceedings, Rep. Scott stated:
At the hearing when I posed the question of whether
any of the witnesses on the hearing's second panel
believed that the count involving invoking executive
privilege should be considered an impeachable offense,
the clear consensus on the panel was that the charge
was not an impeachable offense. In fact, one Republican
witness said, I do not think invoking executive
privilege even if frivolously, and I believe it was
frivolous in these circumstances, that that does not
constitute an impeachable offense.\655\
---------------------------------------------------------------------------
\655\Id. at 83 (statement of Rep. Bobby Scott).
Despite this prior commitment to due process and a
presumption of innocence, the Democrats now favor a presumption
of guilt. Chairman Schiff has said publicly that the Trump
Administration and witnesses asserting their constitutional
rights and seeking to test the soundness of subpoenas have
formed ``a very powerful case against the president for
obstruction, an article of impeachment based on
obstruction.''\656\ Similarly, Chairman Schiff has made clear
that he will simply assume that a witness's testimony is
adverse to the President when that witness or the President
asserts a right or privilege.\657\ These are not the hallmarks
of a fair and transparent process; these are the tell-tale
signs of a star chamber.
---------------------------------------------------------------------------
\656\Kyle Cheney, Trump Makes `Very Powerful Case' for Impeachment
Based on Obstruction, Schiff Warns, Politico, Oct. 28, 2019.
\657\ See Id. (``Schiff also argued that the president is seeking
to block Kupperman because he is concerned about a high-level source
corroborating damning testimony that Trump pressured Ukraine to open
investigations of his political rivals--and condition military aid and
a White House visit on bending the European ally to his will.'').
---------------------------------------------------------------------------
D. ALTHOUGH DECLINING TO SUBMIT TO THE DEMOCRATS' ABUSIVE AND UNFAIR
PROCESS, PRESIDENT TRUMP HAS RELEASED INFORMATION TO HELP THE AMERICAN
PUBLIC UNDERSTAND THE ISSUES
Just twenty-seven minutes after President Trump's
inauguration on January 20, 2017, the Washington Post reported
that the ``campaign to impeach President Trump has
begun.''\658\ As the Post reported:
---------------------------------------------------------------------------
\658\ Matea Gold, The campaign to impeach President Trump has
begun, Wash. Post, Jan. 20, 2017.
The effort to impeach President Donald John Trump is
already underway. At the moment the new commander in
chief was sworn in, a campaign to build public support
for his impeachment went live at
ImpeachDonaldTrumpNow.org, spearheaded by two liberal
advocacy groups aiming to lay the groundwork for his
eventual ejection from the White House. . . . The
impeachment drive comes as Democrats and liberal
activists are mounting broad opposition to stymie
Trump's agenda.\659\
---------------------------------------------------------------------------
\659\ Id.
In 2017 and 2018, Democrats introduced four separation
resolution in the House with the goal of impeaching President
Trump.\660\ On January 3, 2019, on the Democrats' first day in
power, Rep. Al Green again introduced articles of
impeachment.\661\ That same day, Rep. Rashida Tlaib promised,
``we're going to go in there and we're going to impeach the
[expletive deleted].''\662\
---------------------------------------------------------------------------
\660\ H., Res. 705, 115th Cong. (2018); H. Res. 646, 115th Cong.
(2017); H. Res. 621, 115th Cong. (2017); H. Res. 438, 115th Cong.
(2017).
\661\ H. Res. 13, 116th Cong. (2019).
\662\ Amy B. Wong, Rep. Rashida Tlaib profanely promised to impeach
Trump. She's not sorry., Wash. Post, Jan. 4, 2019.
---------------------------------------------------------------------------
In this context, it is difficult to see the Democrats'
impeachment inquiry as anything other than a partisan effort to
undo the results of the 2016 election. Rep. Green said on MSNBC
in May 2019, ``If we don't impeach this President, he will get
re-elected.''\663\ Even as Democrats have conducted their
impeachment inquiry, Speaker Pelosi has called President Trump
``an impostor'' and said it is ``dangerous''' to allow American
voters to evaluate his performance in 2020.\664\ The Democrats'
impeachment process has mirrored this rhetoric, stacking the
deck against the President.\665\
---------------------------------------------------------------------------
\663\ Weekends with Alex Witt, supra note 618.
\664\ Emily Tillett, Nancy Pelosi says Trump's attacks on witnesses
``very significant'' to impeachment probe, CBS News, Nov. 15, 2019;
Dear Colleague Letter from Speaker Nancy Pelosi (Nov. 18, 2019).
\665\See H. Res. 660, 116th Cong. (2019).
---------------------------------------------------------------------------
Even so, the President is not entirely unwilling to
cooperate with the Democrats' demands. In October 2019, Pat A.
Cipollone, the Counsel to the President, wrote to Speaker
Pelosi and the chairmen of the three ``impeachment''
committees:
If the Committees wish to return to the regular order
of oversight requests, we stand ready to engage in that
process as we have in the past, in a manner consistent
with well-established bipartisan constitutional
protections and a respect for the separation of powers
enshrined in our Constitution.\666\
---------------------------------------------------------------------------
\666\ Letter from Pat A. Cipollone, supra note 617.
Speaker Pelosi did not respond to Mr. Cipollone's letter.
President Trump explained that he would ``like people to
testify'' but he is resisting the Democrats' unfair and abusive
process ``for future Presidents and the Office of the
President.''\667\
---------------------------------------------------------------------------
\667\ Donald J. Trump (@realDonaldTrump), Twitter (Nov. 26, 2019,
7:43 a.m.), https://twitter.com/realDonaldTrump/status/
1199352946187800578.
---------------------------------------------------------------------------
Although the Democrats' abusive and unfair process has
prevented his cooperation with the Democrats' impeachment
inquiry, President Trump has nonetheless been transparent about
his conduct. On September 25, President Trump declassified and
released to the public the summary of his July 25 phone
conversation with President Zelensky, stressing his goal that
Americans could read for themselves the contents of the call:
``You will see it was a very friendly and totally appropriate
call.''\668\ On November 15, President Trump released to the
public the summary of this April 21 phone conversation with
President Zelensky in the interest of transparency.\669\ In
addition, President Trump has spoken publicly about his
actions, as has Acting Chief of Staff Mick Mulvaney.\670\
---------------------------------------------------------------------------
\668\ Donald J. Trump (@realDonaldTrump), Twitter (Sept. 24, 2019,
11:12 a.m.), https://twitter.com/realdonaldtrump/status/
1176559970390806530.
\669\ Donald J. Trump (@realDonaldTrump), Twitter (Nov. 11, 2019,
3:35 p.m.), https://twitter.com/realDonaldTrump/status/
1194035922066714625.
\670\ See, e.g., The White House, Remarks by President Trump before
Marine One Departure (Nov. 20, 2019); Press Briefing by Acting Chief of
Staff Mick Mulvaney, supra note 302.
---------------------------------------------------------------------------
Congress has a serious and important role to play in
overseeing the Executive Branch. When the House of
Representatives considers impeachment of a president,
bipartisan precedent dictates fundamental fairness and due
process. In pursuing impeachment of President Trump, however,
Democrats have abandoned those principles, choosing instead to
use impeachment as a tool to pursue their partisan objectives.
While the President has declined to submit himself to the
Democrats' unfair and abusive process, he has still made an
effort to be transparent with the Americans to whom he is
accountable. Under these abusive and unfair circumstances, the
Democrats cannot establish a charge of obstruction.
IV. Conclusion
The impeachment of a president is one of the gravest and
most solemn duties of the House of Representatives. For
Democrats, impeachment is a tool for settling political scores
and re-litigating election results with which they disagreed.
This impeachment inquiry and the manner in which the Democrats
are pursuing it sets a dangerous precedent.
The Democrats have not established an impeachable offense.
The evidence presented in this report does not support a
finding that President Trump pressured President Zelensky to
investigate his political rival for the President's benefit in
the 2020 election. The evidence does not establish that
President Trump withheld a White House meeting to pressure
President Zelensky to investigate his political rival to
benefit him in the 2020 election. The evidence does not support
that President Trump withheld U.S. security assistance to
pressure President Zelensky to investigate his political rival
for the President's benefit in the 2020 election. The evidence
does not establish that President Trump orchestrated a shadow
foreign policy apparatus to pressure President Zelensky to
investigate his political rival to benefit him in the 2020
election.
The best evidence of President Trump's interaction with
President Zelensky is the ``complete and accurate'' call
summary prepared by the White House Situation Room staff. The
summary shows no indication of conditionality, pressure, or
coercion. Both President Trump and President Zelensky have
denied the existence of any pressure. President Zelensky and
his senior advisers in Kyiv did not even know that U.S.
security assistance to Ukraine was paused until it was publicly
reported in U.S. media. Ultimately, Ukraine received the
security assistance and President Zelensky met with President
Trump, all without Ukraine ever investigating President Trump's
political rival. These facts alone severely undercut the
Democrat allegations.
The evidence in the Democrats' impeachment inquiry shows
that President Trump is skeptical about U.S. taxpayer-funded
foreign assistance and strongly believes that European allies
should shoulder more of the financial burden for regional
defense. The President also has deeply-rooted, reasonable, and
genuine concerns about corruption in Ukraine, including the
placement of Vice President Biden's son on the board of a
Ukrainian energy company notorious for corruption at a time
when Vice President Biden was the Obama Administration's point
person for Ukraine policy. There is also compelling and
indisputable evidence that Ukrainian government officials--some
working with a Democrat operative--sought to influence the U.S.
presidential election in 2016 in favor of Secretary Clinton and
in opposition to President Trump.
The Democrats' impeachment narrative ignores the
President's state of mind and it ignores the specific and
concrete actions that the new Zelensky government took to
address pervasive Ukrainian corruption. The Democrats' case
rests almost entirely on hearsay, presumption, and emotion.
Where there are ambiguous facts, the Democrats interpret them
in a light most unfavorable to the President. The Democrats
also flatly disregard any perception of potential wrongdoing
with respect to Hunter Biden's presence on the board of Burisma
Holdings or Ukrainian influence in the 2016 election.
The evidence presented also does not support allegations
that President Trump covered-up his conversation with President
Zelensky by restricting access to it. In light of leaks of
other presidential conversations with world leaders, the White
House took reasonably steps to restrict access to the July 25
call summary. The summary was mistakenly placed on a secure
server; however, the Democrats' witnesses explained that there
was no nefarious conduct or malicious intent associated with
this action.
Likewise, the evidence presented does not support
allegations that President Trump obstructed the Democrats'
impeachment inquiry by raising concerns about an unfair and
abusive process. The Democrats deviated from prior bipartisan
precedent for presidential impeachment and denied Republican
attempts to inject basic fairness and objectivity into their
partisan and one-sided inquiry. The White House has signaled
that it is willing to work with Democrats but President Trump
cannot be faulted for declining to submit himself to the
Democrats' star chamber. Even so, President Trump has been
transparent with the American people about his actions,
releasing documents and speaking publicly about the subject
matter.
The Democrats' impeachment inquiry paints a picture of
unelected bureaucrats within the foreign policy and national
security apparatus who fundamentally disagreed with President
Trump's style, world view, and decisions. Their disagreements
with President Trump's policies and their discomfort with
President Trump's actions set in motion the anonymous,
secondhand whistleblower complaint. Democrats seized on the
whistleblower complaint to fulfill their years-old obsession
with removing President Trump from office.
The unfortunate collateral damage of the Democrats'
impeachment inquiry is the harm done to bilateral U.S.-Ukraine
relations, the fulfillment of Russian President Vladimir
Putin's desire to sow discord within the United States, and the
opportunity costs to the American people. In the time that
Democrats spent investigating the President, Democrats could
have passed legislation to implement the U.S.-Mexico-Canada
Agreement, lower the costs of prescription drugs, or secure our
southern border. Instead, the Democrats' obsession with
impeaching President Trump has paralyzed their already-thin
legislative agenda. Less than a year before the 2020 election
and Democrats in the House still cannot move on from the
results of the last election.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Dissenting Views
I concur with Ranking Member Doug Collins' dissenting views
and submit my additional statements for the record.
Democrats have sought to remove or delegitimize President
Donald J. Trump since the day he won the 2016 presidential
election. Representative Al Green (D-TX) expressed his desire
to impeach the President while Barack Obama was still
President. Media outlets and others stoked this fire and have
kept it going for three years.
Their efforts have been uneven and unsuccessful. The most
notorious attempt was the Russian ``collusion'' allegations
that consumed more than $30 million and took the time of 19 FBI
agents and operatives, hundreds of interviews, and hundreds of
thousands of pages of documents. The conclusion was that the
Trump campaign did not conspire, coordinate, cooperate, or
collude with the Russians to interfere in the 2016 election.
Even now, however, Representatives who sit on the House
Judiciary Committee and House Permanent Select Committee on
Intelligence (HPSCI or Intel) insist that they have evidence of
``collusion.''
In August 2019, a leaker, who had been told about a
telephone conversation between President Trump and Ukraine
President Zelensky, contacted HPSCI staff. Even though HPSCI
Chairman Schiff publicly denied this contact, media accounts
exposed that there had indeed been contact, and insinuated that
there might have been assistance in drafting the
``whistleblower's'' complaint, which has launched this latest
attack on President Trump.
Speaker Pelosi announced the opening of an impeachment
inquiry based on the complaint. During her announcement she
made representations of the contents of the complaint, as had
Chairman Schiff.
The complaint was proven to be substantively false and
utterly without merit when President Trump released a
transcript of the phone call.
The testimony presented to the Judiciary Committee came in
two hearings. In one hearing three law professors who despise
this President urged impeachment. A fourth law professor, who
did not and does not support President Trump, stated that this
impeachment is based on ``wafer thin'' evidence which does not
support Democrat allegations, in a process that is the fastest
in the nation's history.
The only other ``evidentiary'' hearing consisted of the
bizarre scenario where a Democrat staffer, who had testified
for thirty minutes, left his spot at the witness table to sit
next to Judiciary Chairman Nadler on the dais, and cross
examine a Republican staffer for thirty minutes. All this
strangeness took place in a hearing where each side was
supposed to present its report on the closed-door proceedings
of HPSCI.
The only facts adduced from those who have direct knowledge
of the matters considered in this impeachment are:
(1) Ukraine received U.S. aid in conformity with the
law;
(2) The aid was received without any preconditions
other than those required by law;
(3) During the period the release of aid was legally
paused, Ukraine was not aware of the pause;
(4) President Trump had a justified interest in
Ukrainian corruption and a well-expressed antipathy
toward any foreign aid.
In attempting to make their case Democrats have chosen to
draw every inference from the scanty evidence in the most
negative light possible against the President. Their obvious
animus toward him has prevented them from giving, even one
time, a benign interpretation of the evidence. And certainly,
they would never accept an interpretation that might inure to
the President's benefit.
Having watched and participated in the proceedings, even
though limited by Chairman Schiff and the acquiescence of
Chairman Nadler in that limitation, I have concluded that the
Democrats' would never give a neutral interpretation of the
facts (which they believe include rumor, gossip, and innuendo)
where President Trump is concerned.
They have no facts. The law is against them. They have
rigged the process. Why should the American public give the
Democrats the benefit of the doubt?
Article I--Abuse of Power
During their impeachment inquiry against President Trump,
Democrats have dishonestly alleged that President Trump abused
the powers of his office by soliciting ``interference of a
foreign government, Ukraine, in the 2020 United States
Presidential election.'' There is no basis for this outlandish
claim. Democrats have twisted facts, taken statements out of
context, and lied to the American people all in the name of
fulfilling their 2016-stated desire of removing President Trump
from office.
The shaky foundation of the Democrat case is the July 25,
2019, call between President Donald Trump and Ukrainian
President Volodymyr Zelensky. On this call, Democrats allege
that President Trump conditioned future support for Ukraine on
their agreement to ``publicly announce investigations into . .
. former Vice President Joseph R. Biden.'' This is not true.
There is no mention of the aid appropriated by the United
States for Ukraine on the call. Additionally, there is no
discussion of any precondition to release aid. This is the
first of many examples of the Democrats twisting the facts to
create their own narrative.
Democrats called in several witnesses hoping to confirm
their narrative, most for sessions of closed-door testimony,
and some of whose transcripts still have not been released. Not
one testified of a quid pro quo.
Gordon Sondland, U.S. Ambassador to the European Union is
the Democrats' star witness. He is mentioned more than 600
times in a 262-page report authored by Chairman Schiff, which
purports to be a summary of the HPSCI hearings.
Ambassador Sondland was not on the July 25 call. He
repeatedly testified that the only direct statement from
President Trump was that President Trump wanted nothing from
Ukraine except for it to clean up its corruption.
Other statements of Sondland, that there was a quid pro
quo, and everyone was ``in the loop,'' were simply assumptions
he made. In fact, he acknowledged that ``no one on earth'' told
him that there were any preconditions on release of aid. His
only direct knowledge was the President's explicit
contradiction of the entirety of Sondland's presumptions.
Presumptions cannot be the basis for an impeachment. All
the presumptions in the world do not overcome the direct
evidence of the President's statement. In a conversation with
Ambassador Sondland, President Trump said, ``I want nothing
[from Ukraine]. I want no quid pro quo. I want Zelensky to do
the right thing. I want him to do what he ran on.'' In this
case, President Trump is referring to President Zelensky's
campaign to root out corruption within the Ukrainian
government. The President's statement directly contradicts
Ambassador Sondland's presumption.
The appropriated aid was released to the Ukraine without
any investigation or announcement of an investigation by
Ukraine. But the Democrats even put their own spin on the
ultimate reasoning for release.
Democrats infer that President Trump released the aid
because the delay on delivery was made public and Ukraine was
made aware. Because they have no direct evidence to
substantiate this assertion, they have attempted to rely on a
timeline that says the whistleblower complaint became public
before President Trump released the money to Ukraine. That
temporal coincidence is a pin prick through which they attempt
to drive a truck. But their inference is wrong.
That timeline is their only evidence. While that timeline
of events is in fact true, that the whistleblower complaint was
made public prior to the aid being released, there is a
stronger rationale for the President's release of aid. In late
August 2019, the Ukraine legislature was working on strong
anticorruption legislation, which even Democrat witnesses said
would be a significant curb on rampant Ukrainian corruption.
President Trump released the aid the very same day that
President Zelensky signed into law two anti-corruption
measures: one that ended immunity for Ukrainian legislators and
the reinstatement of a vigorous anticorruption court.
The United States had provided aid to Ukraine in 2017 and
2018, but aid was only paused in 2019. The Democrats assert
this is because President Trump wanted Ukraine to investigate a
political rival. In fact, several Democrats asked what changed
between 2017, 2018, and 2019.
What changed? A new president who had run on an
anticorruption platform who had been employed by a Ukrainian
oligarch before election. President Zelensky was also
surrounded by several of the previous corrupt regime's
officials. A brief pause, consistent with the law, to determine
the credibility of the new president's commitment to ending
corruption was justified.
To that end, during the pause there were multiple high-
level meetings between U.S. leaders and President Zelensky
where the need to take anticorruption measures was emphasized.
The aid was released the day the two anticorruption laws were
executed.
The Democrats' accusation that President Trump asked for an
investigation into his political rival is based on a
presumption that is inconsistent with the facts. On the July 25
phone call, President Trump mentioned a set of circumstances in
which former Vice President Joseph Biden appeared to have
stopped a prosecution that might have implicated Biden's son,
Hunter. President Trump asked President Zelensky to ``look
into'' those circumstances. President Trump did not ask
President Zelensky to investigate Biden or to ``dig up dirt''
on Biden, as Schiff brazenly misrepresented to the American
people.
Investigating events is not the same as investigating
people. It is apparent that this distinction is lost on the
Democrats. They have been investigating President Trump for
three years and have investigated every nook and cranny of his
life. They have investigated his family, his friends and
associates, his supporters, his businesses. Democrats always
project what they are doing on everyone else. They have been
assailing President Trump at every turn. They have been
investigating the person, not the events.
Not one witness testified that President Trump ever
mentioned politics or the upcoming election. The evidence is
that he was motivated by his understanding of widespread
corruption in Ukraine and the corrupt circumstances of the
Biden's involvement with Burisma, a Ukrainian energy company
that was considered by many to be a corrupt actor. A person who
is involved with entities committing corrupt acts may end up
being investigated in conjunction with the corrupt acts of that
entity. Immunity is not granted simply because that person's
father is a powerful American political figure.
The telephone call between the two presidents was
considered a good, fruitful conversation. The evidence in this
case is clear: Ukraine received the aid within the lawful time
provided for distribution, provided nothing in return for the
aid, and Ukrainian President Zelensky stated publicly on
multiple occasions that he never discussed any form of quid pro
quo with President Trump and he felt no pressure from the
United States.
The real abuse of power is on the part of House Democrats,
led by Speaker Nancy Pelosi, House Intelligence Committee
Chairman Adam Schiff, and House Judiciary Committee Chairman
Jerry Nadler. For months, they have run a Stalin-like court and
failed to provide the due process fundamental to our nation.
They used their platform to lie to the American people and to
subvert the political will of 63 million American voters. Their
efforts--which were stated in 2016, long before the call
between President Trump and President Zelensky--are the real
abuse of power.
Article II--Obstruction of Congress
Democrats' second Article is the most dubious, the
``Obstruction of Congress'' allegation. Obstruction of Congress
is weaker than the obstruction of justice story they bandied
about for several years. It certainly is not a crime of moral
turpitude, nor a ``high crime or misdemeanor.'' It is almost an
admission that Democrats are aware of the paucity of evidence
to support their claims that they bring this Article forward.
Democrats argue that President Trump's unwillingness to
support their impeachment is, somehow, obstruction of Congress.
Is the President required to acquiesce to process that is
patently harassing and of dubious motivation? The principles of
separation of powers and checks and balances demand that a
president be permitted to resist orders of the legislative
branch that are overly broad, burdensome, harassing, or
violative of his constitutional privileges.
Democrats claim that by asserting his constitutional
privilege President Trump usurped the constitutional imperative
that the House has the sole power of impeachment. They demand
obeisance to their commands. It is an absurdity to claim that
by granting Congress the sole power of impeachment the
president is required to cooperate in any and all congressional
requests, no matter their merit. Disputes between our branches
are a feature, not a bug, of our system. The branches typically
engage in a process of accommodation to reach an agreement.
When disputes between the legislative and executive branches
cannot be resolved, the two can appeal to the courts to rule.
Anything less threatens the separation of powers that is the
very foundation of our Constitution.
Democrats choose instead to ignore both the accommodation
process and the judicial process to resolve this impasse. With
a certain degree of shamelessness, they assert that President
Trump defied subpoenas issued by the House. President Trump
chose to assert his executive privilege, a valid constitutional
option. Democrats did not try to reach any accommodation with
President Trump and refused to attempt to enforce their
subpoenas in court. The courts would have determined the
validity of the subpoenas and of President Trump's privilege
claim. But Chairman Schiff and Chairman Nadler publicly stated
that turning to the courts would take too long. Democrats are
letting themselves be held hostage by the clock and the
calendar rather than attempting to follow the constitutional
structure that the Founders intended.
Democrats have argued that President Trump undermined the
integrity of the democratic process by his efforts to ensure
the new Ukrainian President addressed corruption. But really,
it's Democrats relentless attacks on President Trump and
attempts to overturn the 2016 election that are undermining the
integrity of the democratic process.
Democrats spent months of their first year back in the
majority focused on impeachment. Rather than address the real
issues facing our nation--border security, mounting national
debt, and skyrocketing health care prices, to name a few,
they've spent all their energy and efforts perpetrating a sham
impeachment. We should consider who is more of an obstruction
to Congress--President Trump or House Democrats. It's safe to
say, it's House Democrats.
Broken Process
The Democrats and their adherents in the Left-wing media
have propounded a seemingly endless parade of reasons to
impeach President Trump. In a ``tweet'' he used the term ``fake
news'' and some saw that as grounds for impeachment. They
asserted he should be impeached for the Muslim Ban (upheld by
the Supreme Court), exercising his legitimate constitutional
power to pardon (someone they didn't like), his tweet about FBI
and U.S. intelligence surveillance of his presidential campaign
(confirmed by the 2019 Inspector General report), tweeting
about NFL players disrespecting the Flag and law enforcement
officers, and just about everything else. One congressman
suggested he should be impeached for slavery.
All of these were either policy disputes or personality
conflicts. Some were outlandish and nonsensical. But the media
and Democrats often repeated them.
Democrats helped perpetuate the Russian collusion hoax and
even suggested an invocation of the 25th Amendment to remove
the President.
Is it any wonder that this impeachment process has been
greeted with such skepticism? And, once the Schiff show in the
top-secret basement bunker started, without the presence of the
traditional committee of jurisdiction, the Judiciary Committee,
the Democrats demonstrated that Americans' mistrust was
justified.
The entire process was based on a foundation of deception.
Chairman Schiff opened the informal impeachment--the first time
in history an impeachment inquiry has been opened without a
full vote of the House--by deceiving the American people into
thinking a whistleblower expressed concern over the July 25
call between President Trump and President Zelensky. But
Democrats' own New York Times broke the news that the
whistleblower had communicated with Chairman Schiff's staff
before coming forward publicly. To this day, it is still
unclear whether Chairman Schiff himself met with the
whistleblower or how his staff conspired to help craft his
statement because Chairman Schiff and his staff refuse to
answer questions about their dealings.
Once the transcript of the July 25 call was released by the
White House and Chairman Schiff found that it did not support,
and in fact, conflicted with his narrative, he created his own.
After all, he needed some claim such as conditionality that
would allow him to propound his false narrative.
Because there was no evidence of a this-for-that in the
transcript of the call, Schiff wrote his own dialogue. He made
up a conversation and told this fabrication to the world. He
made it sound like President Trump directly asked President
Zelensky for an investigation of his political opponent. But it
was false. A lie. He had to make it up because the evidence he
hoped for wasn't there. The oddest part is that Democrats
quoted liberally from his report in the impeachment markup and
Democrats continue to perpetuate the myth.
Next up, Democrats started calling witnesses to testify,
hoping one of them would give them some facts to support their
narrative. In violation of House rules, they held these
interviews and depositions in a top-secret room in the basement
of the Capitol, denying access to most members of Congress
(including the Judiciary Committee) and prohibiting attending
members from discussing the substance. The secret room and gag
rules allowed Democrats to get their story straight before
presenting their sham to the American people. Transcripts of
the interviews trickled out over time, though not all of them
have been released, even to this day. Once again, I call upon
Chairman Schiff to release the transcript of the deposition of
the Intelligence Community Inspector General.
When Pelosi finally allowed a vote on the rules, H. Res.
660 gave President Trump and the minority less due process than
President Clinton received from the Republicans during his
impeachment. The President's counsel was prevented from
examining any fact witnesses, Republicans were denied the right
to call their own witnesses, and Republicans didn't have
subpoena authority of their own. Worse still, Democrats
inappropriately used their subpoenas to gather phone records
from the President's attorney, from members of Congress, and
members of the press, each of which were cherry picked and
published. Despite multiple requests for documents throughout
the process, Democrats stonewalled until releasing 8,000 pages
of records less than 48 hours before the Judiciary Committee's
hearing on the report published by the HPSCI. Never has a
majority party abused its power in such a shocking and
appalling way.
During one of only two impeachment hearings held by the
House Judiciary Committee in this impeachment process--the
committee that has historically been tasked with overseeing
impeachment inquiries--neither of which were attended by any
fact witnesses, House Republicans, in accordance with the House
rules, requested the opportunity to hold a minority hearing.
Republicans, after all, deserve the opportunity to call
additional witnesses and to seek the truth. House rules require
the Chairman to hold the hearing once it's requested,
presumably in a timely way. Consistent with their track record
of denying minority rights, Chairman Nadler refused to approve
the hearing before the Judiciary Committee voted to approve the
impeachment articles.
After the two hearings at which there were only
presentations, the House Judiciary Committee met for more than
12 hours to debate and amend the articles of impeachment.
Throughout the entire day, and as they did throughout the
entire impeachment process, Chairman Nadler refused to follow
committee rules on points of order, recognizing Members, or
parliamentary inquiries. These rules are how committees
maintain their decorum and protect the rights of the minority.
The majority's disregard of the rules has set a terrible
precedent and might lead to justification for future abuses.
And, quite frankly, the disregard was completely unnecessary.
Democrats have a substantial majority and will win the final
vote. Disregarding the rules prevents members from representing
the tens of millions of Americans who elected them, all the
while knowing that the outcome of the final impeachment vote
was a fait accompli.
The penultimate disrespect of the minority occurred late
into the evening. After many hours of debate, Chairman Nadler
postponed voting on the articles until the following morning
and recessed the committee. This was done with no consultation
of the Ranking Member, no prior notification to Members on the
committee, and no reason given for why the vote could not be
held that evening. But it was observed that most of the media
had departed.
The following morning, after the media had returned, the
anticlimactic vote occurred, lasting all of 10 minutes.
During the Judiciary Committee markup, a Democrat
Congressman stated, ``Freedom from oppression, freedom from
tyranny, freedom from abuse of power, freedom is in our DNA.''
A wiser man, President Ronald Reagan, counterargued that
``Freedom is never more than one generation away from
extinction. We didn't pass it to our children in the
bloodstream. It must be fought for, protected, and handed on
for them to do the same, or one day we will spend our sunset
years telling our children and our children's children what it
was once like in the United States where men were free.''
Democrats have tried to wrap themselves in the flag and say
they are standing for the Constitution. But they are simply
ignoring the clearly established facts and circumventing the
rules to their advantage.
The American people see this process for what it is--a
sham. This President, and all Americans deserve elected
officials who have respect for their political will, for the
foundations of our constitutional republic, and for the great
responsibility that has been set before them. Democrats have
damaged our representative republic with this impeachment.
Andy Biggs.
----------
On the Resolution and Report Recommending to the U.S. House of
Representatives the Impeachment of President Donald J. Trump
On December 13, 2019, the Judiciary Committee advanced H.
Res. 755, Articles of Impeachment Against Donald J. Trump, out
of the Committee for consideration by the House of
Representatives. My position on the Articles of Impeachment
contained in H. Res. 755 is in concurrence with Ranking Member
Doug Collins.
Tom McClintock
----------
H. Res. 755
I agree with the views expressed by Ranking member Doug
Collins.
Sincerely,
Guy Reschenthaler,
Member of Congress.
=======================================================================
Appendix
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
THE TRUMP-UKRAINE
IMPEACHMENT INQUIRY REPORT
Report of the House Permanent Select Committee on Intelligence,
Pursuant to H. Res. 660 in Consultation with the
House Committee on Oversight and Reform and the
House Committee on Foreign Affairs
December 2019
House Permanent Select Committee on Intelligence
Rep. Adam B. Schiff (CA), Chairman
Rep. Jim Himes (CT)
Rep. Terri Sewell (AL)
Rep. Andre Carson (IN)
Rep. Jackie Speier (CA)
Rep. Mike Quigley (IL)
Rep. Eric Swalwell (CA)
Rep. Joaquin Castro (TX)
Rep. Denny Heck (WA)
Rep. Peter Welch (VT)
Rep. Sean Patrick Maloney (NY)
Rep. Val Demings (FL)
Rep. Raja Krishnamoorthi (IL)
Rep. Devin Nunes (CA),
Ranking Member
Rep. Mike Conaway (TX)
Rep. Michael Turner (OH)
Rep. Brad Wenstrup (OH)
Rep. Chris Stewart (UT)
Rep. Elise Stefanik (NY)
Rep. Will Hurd (TX)
Rep. John Ratcliffe (TX)
Rep. Jim Jordan (OH)
Majority Staff
Timothy S. Bergreen, Staff
Director
Daniel S. Goldman, Director of
Investigations
Maher Bitar, General Counsel
Rheanne Wirkkala, Deputy Director
of Investigations
Patrick M. Boland, Communications
Director
Impeachment Inquiry Investigative
Staff
Daniel S. Noble William M. Evans
Diana Y. Pilipenko Patrick Fallon
Ariana N. Rowberry Sean A. Misko
Nicolas A. Mitchell
Carly A. Blake, Deputy Staff
Director
William Wu, Budget and Policy
Director
Wells C. Bennett, Deputy General
Counsel
Oversight Staff
Lucian D. Sikorskyj Linda D. Cohen
Conrad Stosz Thomas Eager
Kathy L. Suber Abigail C. Grace
Aaron A. Thurman Kelsey M. Lax
Raffaela L. Wakeman Amanda A. Rogers Thorpe
Non-Partisan Security and
Information Technology Staff
Claudio Grajeda Kristin Jepson
Kimberlee Kerr
House Committee on Oversight and Reform
Rep. Carolyn B. Maloney (NY), Chairwoman
Rep. Elijah E. Cummings (MD), Chairman
Rep. Eleanor Holmes Norton (DC)
Rep. Wm. Lacy Clay (MO)
Rep. Stephen Lynch (MA)
Rep. Jim Cooper (TN)
Rep. Gerald E. Connolly (VA)
Rep. Raja Krishnamoorthi (IL)
Rep. Jamie Raskin (MD)
Rep. Harley Rouda (CA)
Rep. Debbie Wasserman Schultz (FL)
Rep. John Sarbanes (MD)
Rep. Peter Welch (VT)
Rep. Jackie Speier (CA)
Rep. Robin Kelly (IL)
Rep. Mark DeSaulnier (CA)
Rep. Brenda Lawrence (MI)
Rep. Stacey Plaskett (VI)
Rep. Ro Khanna (CA)
Rep. Jimmy Gomez (CA)
Rep. Alexandria Ocasio-Cortez (NY)
Rep. Ayanna Pressley (MA)
Rep. Rashida Tlaib (MI)
Rep. Jim Jordan (OH),
Ranking Member
Rep. Paul Gosar (AZ)
Rep. Thomas Massie (KY)
Rep. Virginia Foxx (NC)
Rep. Mark Meadows (NC)
Rep. Jody Hice (GA)
Rep. Glenn Grothman (WI)
Rep. James Comer (KY)
Rep. Michael Cloud (TX)
Rep. Bob Gibbs (OH)
Rep. Clay Higgins (LA)
Rep. Ralph Norman (SC)
Rep. Chip Roy (TX)
Rep. Carol Miller (WV)
Rep. Mark Green (TN)
Rep. Kelly Armstrong (ND)
Rep. Greg Steube (FL)
Rep. Fred Keller (PA)
Majority Staff
Dave Rapallo, Staff Director
Susanne Sachsman Grooms, Deputy Staff Director & Chief Counsel
Peter Kenny, Chief Investigative Counsel
Krista A. Boyd, General Counsel
Janet H. Kim, Chief Counsel for Investigations
Russell Anello, Chief Oversight Counsel
Aryele Bradford, Communications Director
Investigative Staff
S. Tori Anderson Gina Kim
Aaron D. Blacksberg Jason Powell
Chioma Chukwu Dan Rebnord
Cassie Fields Ricardo Brandon Rios
Greta Gao Erinn L. Sauer, Detailee
Michael Gordon Amish A. Shah
Jessica L. Heller Laura Waters
Operations and Press Team
Zachary Barger, Intern Elisa LaNier
Jamitress Bowden Kellie Larkin
Kristen Charley, Intern Olivia Letts, Intern
Kenyatta Collins Anna Rose Marx, Intern
James Darlson, Intern Courtney Miller
Emma Dulaney Noah Steimel, Intern
Evan Elizabeth Freeman, Intern Travis Stoller, Intern
Christopher Godshall, Intern Amy Stratton
Trinity Goss Laura Trevisani, Intern
Brandon Jacobs Joshua Zucker
House Committee on Foreign Affairs
Rep. Eliot L. Engel (NY), Chairman
Rep. Michael McCaul (TX), Rep. Brad Sherman (CA)
Ranking Member Rep. Gregory Meeks (NY)
Rep. Christopher Smith (NJ) Rep. Albio Sires (NJ)
Rep. Steve Chabot (OH) Rep. Gerald E. Connolly (VA)
Rep. Joe Wilson (SC) Rep. Theodore Deutch (FL)
Rep. Scott Perry (PA) Rep. Karen Bass (CA)
Rep. Ted Yoho (FL) Rep. William Keating (MA)
Rep. Adam Kinzinger (IL) Rep. David Cicilline (RI)
Rep. Lee Zeldin (NY) Rep. Ami Bera (CA)
Rep. James Sensenbrenner (WI) Rep. Joaquin Castro (TX)
Rep. Ann Wagner (MO) Rep. Dina Titus (NV)
Rep. Brian Mast (FL) Rep. Adriano Espaillat (NY)
Rep. Francis Rooney (FL) Rep. Ted Lieu (CA)
Rep. Brian Fitzpatrick (PA) Rep. Susan Wild (PA)
Rep. John Curtis (UT) Rep. Dean Phillips (MN)
Rep. Ken Buck (CO) Rep. Ilhan Omar (MN)
Rep. Ron Wright (TX) Rep. Colin Allred (TX)
Rep. Guy Reschenthaler (PA) Rep. Andy Levin (MI)
Rep. Tim Burchett (TN) Rep. Abigail Spanberger (VA)
Rep. Greg Pence (IN) Rep. Chrissy Houlahan (PA)
Rep. Steve Watkins (KS) Rep. Tom Malinowski (NJ)
Rep. Michael Guest (MS) Rep. David Trone (MD)
Rep. Jim Costa (CA)
Rep. Juan Vargas (CA)
Rep. Vicente Gonzalez (TX)
Majority Staff
Jason Steinbaum, Staff Director
Doug Campbell, Deputy Staff
Director
Janice Kaguyutan, Chief Counsel
Laura Carey, Senior Professional
Staff Member, State Department
Oversight
Tim Mulvey, Communications
Director
Jacqueline Ramos, Senior
Professional Staff Member, Europe
and Russia
Operations and Press Staff
Rachel Levitan Evan Bursey
Jacqueline Colvett
CONTENTS
Page
Preface.......................................................... 340
Executive Summary................................................ 346
Key Findings of Fact............................................. 367
Section I. The President's Misconduct............................ 370
1. The President Forced Out the U.S. Ambassador to Ukraine... 370
2. The President Put Giuliani and the Three Amigos in Charge
of Ukraine Issues.......................................... 382
3. The President Froze Military Assistance to Ukraine........ 399
4. The President's Meeting with the Ukrainian President Was
Conditioned on An Announcement of Investigations........... 414
5. The President Asked the Ukrainian President to Interfere
in the 2020 U.S. Election by Investigating the Bidens and
2016 Election Interference................................. 429
6. The President Wanted Ukraine to Announce the
Investigations Publicly.................................... 444
7. The President's Conditioning of Military Assistance and a
White House Meeting on Announcement of Investigations
Raised Alarm............................................... 455
8. The President's Scheme Was Exposed........................ 469
Section II. The President's Obstruction of the House of
Representatives' Impeachment Inquiry........................... 533
1. Constitutional Authority for Congressional Oversight and
Impeachment................................................ 533
2. The President's Categorical Refusal to Comply............. 537
3. The President's Refusal to Produce Any and All Subpoenaed
Documents.................................................. 546
4. The President's Refusal to Allow Top Aides to Testify..... 558
5. The President's Unsuccessful Attempts to Block Key
Witnesses.................................................. 571
6. The President's Intimidation of Witnesses................. 582
Appendix A: Key People and Entities.............................. 631
Appendix B: Abbreviations and Common Terms....................... 633
Preface
This report reflects the evidence gathered thus far by the
House Permanent Select Committee on Intelligence, in
coordination with the Committee on Oversight and Reform and the
Committee on Foreign Affairs, as part of the House of
Representatives' impeachment inquiry into Donald J. Trump, the
45th President of the United States.
The report is the culmination of an investigation that
began in September 2019 and intensified over the past three
months as new revelations and evidence of the President's
misconduct towards Ukraine emerged. The Committees pursued the
truth vigorously, but fairly, ensuring the full participation
of both parties throughout the probe.
Sustained by the tireless work of more than three dozen
dedicated staff across the three Committees, we issued dozens
of subpoenas for documents and testimony and took more than 100
hours of deposition testimony from 17 witnesses. To provide the
American people the opportunity to learn and evaluate the facts
themselves, the Intelligence Committee held seven public
hearings with 12 witnesses--including three requested by the
Republican Minority--that totaled more than 30 hours.
At the outset, I want to recognize my late friend and
colleague Elijah E. Cummings, whose grace and commitment to
justice served as our North Star throughout this investigation.
I would also like to thank my colleagues Eliot L. Engel and
Carolyn B. Maloney, chairs respectively of the Foreign Affairs
and Oversight and Reform Committees, as well as the Members of
those Committees, many of whom provided invaluable
contributions. Members of the Intelligence Committee, as well,
worked selflessly and collaboratively throughout this
investigation. Finally, I am grateful to Speaker Nancy Pelosi
for the trust she placed in our Committees to conduct this work
and for her wise counsel throughout.
I also want to thank the dedicated professional staff of
the Intelligence Committee, who worked ceaselessly and with
remarkable poise and ability. My deepest gratitude goes to
Daniel Goldman, Rheanne Wirkkala, Maher Bitar, Timothy
Bergreen, Patrick Boland, Daniel Noble, Nicolas Mitchell, Sean
Misko, Patrick Fallon, Diana Pilipenko, William Evans, Ariana
Rowberry, Wells Bennett, and William Wu. Additional
Intelligence Committee staff members also assured that the
important oversight work of the Committee continued, even as we
were required to take on the additional responsibility of
conducting a key part of the House impeachment inquiry.
Finally, I would like to thank the devoted and outstanding
staff of the Committee on Oversight and Reform, including but
not limited to Dave Rapallo, Susanne Sachsman Grooms, Peter
Kenny, Krista Boyd, and Janet Kim, as well as Laura Carey from
the Committee on Foreign Affairs.
* * *
In his farewell address, President George Washington warned
of a moment when ``cunning, ambitious, and unprincipled men
will be enabled to subvert the power of the people and to usurp
for themselves the reins of government, destroying afterwards
the very engines which have lifted them to unjust dominion.''
The Framers of the Constitution well understood that an
individual could one day occupy the Office of the President who
would place his personal or political interests above those of
the nation. Having just won hard-fought independence from a
King with unbridled authority, they were attuned to the dangers
of an executive who lacked fealty to the law and the
Constitution.
In response, the Framers adopted a tool used by the British
Parliament for several hundred years to constrain the Crown--
the power of impeachment. Unlike in Britain, where impeachment
was typically reserved for inferior officers but not the King
himself, impeachment in our untested democracy was specifically
intended to serve as the ultimate form of accountability for a
duly-elected President. Rather than a mechanism to overturn an
election, impeachment was explicitly contemplated as a remedy
of last resort for a president who fails to faithfully execute
his oath of office ``to preserve, protect and defend the
Constitution of the United States.''
Accordingly, the Constitution confers the power to impeach
the president on Congress, stating that the president shall be
removed from office upon conviction for ``Treason, Bribery, or
other high Crimes and Misdemeanors.'' While the Constitutional
standard for removal from office is justly a high one, it is
nonetheless an essential check and balance on the authority of
the occupant of the Office of the President, particularly when
that occupant represents a continuing threat to our fundamental
democratic norms, values, and laws.
Alexander Hamilton explained that impeachment was not
designed to cover only criminal violations, but also crimes
against the American people. ``The subjects of its
jurisdiction,'' Hamilton wrote, ``are those offenses which
proceed from the misconduct of public men, or, in other words,
from the abuse or violation of some public trust. They are of a
nature which may with peculiar propriety be denominated
political, as they relate chiefly to injuries done immediately
to the society itself.''
Similarly, future Associate Justice of the United States
Supreme Court James Wilson, a delegate from Pennsylvania at the
Constitutional Convention, distinguished impeachable offenses
from those that reside ``within the sphere of ordinary
jurisprudence.'' As he noted, ``impeachments are confined to
political characters, to political crimes and misdemeanors, and
to political punishments.''
* * *
As this report details, the impeachment inquiry has found
that President Trump, personally and acting through agents
within and outside of the U.S. government, solicited the
interference of a foreign government, Ukraine, to benefit his
reelection. In furtherance of this scheme, President Trump
conditioned official acts on a public announcement by the new
Ukrainian President, Volodymyr Zelensky, of politically-
motivated investigations, including one into President Trump's
domestic political opponent. In pressuring President Zelensky
to carry out his demand, President Trump withheld a White House
meeting desperately sought by the Ukrainian President and
critical U.S. military assistance to fight Russian aggression
in eastern Ukraine.
The President engaged in this course of conduct for the
benefit of his own presidential reelection, to harm the
election prospects of a political rival, and to influence our
nation's upcoming presidential election to his advantage. In
doing so, the President placed his own personal and political
interests above the national interests of the United States,
sought to undermine the integrity of the U.S. presidential
election process, and endangered U.S. national security.
At the center of this investigation is the memorandum
prepared following President Trump's July 25, 2019, phone call
with Ukraine's President, which the White House declassified
and released under significant public pressure. The call record
alone is stark evidence of misconduct; a demonstration of the
President's prioritization of his personal political benefit
over the national interest. In response to President Zelensky's
appreciation for vital U.S. military assistance, which
President Trump froze without explanation, President Trump
asked for ``a favor though'': two specific investigations
designed to assist his reelection efforts.
Our investigation determined that this telephone call was
neither the start nor the end of President Trump's efforts to
bend U.S. foreign policy for his personal gain. Rather, it was
a dramatic crescendo within a months-long campaign driven by
President Trump in which senior U.S. officials, including the
Vice President, the Secretary of State, the Acting Chief of
Staff, the Secretary of Energy, and others were either
knowledgeable of or active participants in an effort to extract
from a foreign nation the personal political benefits sought by
the President.
The investigation revealed the nature and extent of the
President's misconduct, notwithstanding an unprecedented
campaign of obstruction by the President and his Administration
to prevent the Committees from obtaining documentary evidence
and testimony. A dozen witnesses followed President Trump's
orders, defying voluntary requests and lawful subpoenas, and
refusing to testify. The White House, Department of State,
Department of Defense, Office of Management and Budget, and
Department of Energy refused to produce a single document in
response to our subpoenas.
Ultimately, this sweeping effort to stonewall the House of
Representatives' ``sole Power of Impeachment'' under the
Constitution failed because witnesses courageously came forward
and testified in response to lawful process. The report that
follows was only possible because of their sense of duty and
devotion to their country and its Constitution.
Nevertheless, there remain unanswered questions, and our
investigation must continue, even as we transmit our report to
the Judiciary Committee. Given the proximate threat of further
presidential attempts to solicit foreign interference in our
next election, we cannot wait to make a referral until our
efforts to obtain additional testimony and documents wind their
way through the courts. The evidence of the President's
misconduct is overwhelming, and so too is the evidence of his
obstruction of Congress. Indeed, it would be hard to imagine a
stronger or more complete case of obstruction than that
demonstrated by the President since the inquiry began.
The damage the President has done to our relationship with
a key strategic partner will be remedied over time, and Ukraine
continues to enjoy strong bipartisan support in Congress. But
the damage to our system of checks and balances, and to the
balance of power within our three branches of government, will
be long-lasting and potentially irrevocable if the President's
ability to stonewall Congress goes unchecked. Any future
President will feel empowered to resist an investigation into
their own wrongdoing, malfeasance, or corruption, and the
result will be a nation at far greater risk of all three.
* * *
The decision to move forward with an impeachment inquiry is
not one we took lightly. Under the best of circumstances,
impeachment is a wrenching process for the nation. I resisted
calls to undertake an impeachment investigation for many months
on that basis, notwithstanding the existence of presidential
misconduct that I believed to be deeply unethical and damaging
to our democracy. The alarming events and actions detailed in
this report, however, left us with no choice but to proceed.
In making the decision to move forward, we were struck by
the fact that the President's misconduct was not an isolated
occurrence, nor was it the product of a naive president.
Instead, the efforts to involve Ukraine in our 2020
presidential election were undertaken by a President who
himself was elected in 2016 with the benefit of an
unprecedented and sweeping campaign of election interference
undertaken by Russia in his favor, which the President welcomed
and utilized.
Having witnessed the degree to which interference by a
foreign power in 2016 harmed our democracy, President Trump
cannot credibly claim ignorance to its pernicious effects. Even
more pointedly, the President's July call with Ukrainian
President Zelensky, in which he solicited an investigation to
damage his most feared 2020 opponent, came the day after
Special Counsel Robert Mueller testified to Congress about
Russia's efforts to damage his 2016 opponent and his urgent
warning of the dangers of further foreign interference in the
next election. With this backdrop, the solicitation of new
foreign intervention was the act of a president unbound, not
one chastened by experience. It was the act of a president who
viewed himself as unaccountable and determined to use his vast
official powers to secure his reelection.
This repeated and pervasive threat to our democratic
electoral process added urgency to our work. On October 3,
2019, even as our Committee was engaged in this inquiry,
President Trump publicly declared anew that other countries
should open investigations into his chief political rival,
saying, ``China should start an investigation into the
Bidens,'' and ``President Zelensky, if it were me, I would
recommend that they start an investigation into the Bidens.''
When a reporter asked the President what he hoped Ukraine's
President would do following the July 25 call, President Trump,
seeking to dispel any doubt as to his continuing intention,
responded: ``Well, I would think that, if they were honest
about it, they'd start a major investigation into the Bidens.
It's a very simple answer.''
By doubling down on his misconduct and declaring that his
July 25 call with President Zelensky was ``perfect,'' President
Trump has shown a continued willingness to use the power of his
office to seek foreign intervention in our next election. His
Acting Chief of Staff, Mick Mulvaney, in the course of
admitting that the President had linked security assistance to
Ukraine to the announcement of one of his desired
investigations, told the American people to ``get over it.'' In
these statements and actions, the President became the author
of his own impeachment inquiry. The question presented by the
set of facts enumerated in this report may be as simple as that
posed by the President and his chief of staff's brazenness: is
the remedy of impeachment warranted for a president who would
use the power of his office to coerce foreign interference in a
U.S. election, or is that now a mere perk of the office that
Americans must simply ``get over''?
* * *
Those watching the impeachment hearings might have been
struck by how little discrepancy there was between the
witnesses called by the Majority and Minority. Indeed, most of
the facts presented in the pages that follow are uncontested.
The broad outlines, as well as many of the details of the
President's scheme, have been presented by the witnesses with
remarkable consistency. There will always be some variation in
the testimony of multiple people witnessing the same events,
but few of the differences here go to the heart of the matter.
And so, it may have been all the more surprising to the public
to see very disparate reactions to the testimony by the Members
of Congress from each party.
If there was one ill the Founders feared as much as that of
an unfit president, it may have been that of excessive
factionalism. Although the Framers viewed parties as necessary,
they also endeavored to structure the new government in such a
way as to minimize the ``violence of faction.'' As George
Washington warned in his farewell address, ``the common and
continual mischiefs of the spirit of party are sufficient to
make it the interest and duty of a wise people to discourage
and restrain it.''
Today, we may be witnessing a collision between the power
of a remedy meant to curb presidential misconduct and the power
of faction determined to defend against the use of that remedy
on a president of the same party. But perhaps even more
corrosive to our democratic system of governance, the President
and his allies are making a comprehensive attack on the very
idea of fact and truth. How can a democracy survive without
acceptance of a common set of experiences?
America remains the beacon of democracy and opportunity for
freedom-loving people around the world. From their homes and
their jail cells, from their public squares and their refugee
camps, from their waking hours until their last breath,
individuals fighting human rights abuses, journalists
uncovering and exposing corruption, persecuted minorities
struggling to survive and preserve their faith, and countless
others around the globe just hoping for a better life look to
America. What we do will determine what they see, and whether
America remains a nation committed to the rule of law.
As Benjamin Franklin departed the Constitutional
Convention, he was asked, ``what have we got? A Republic or a
Monarchy?'' He responded simply: ``A Republic, if you can keep
it.''
Adam B. Schiff,
Chairman, House Permanent Select Committee on Intelligence.
Executive Summary
The impeachment inquiry into Donald J. Trump, the 45th
President of the United States, uncovered a months-long effort
by President Trump to use the powers of his office to solicit
foreign interference on his behalf in the 2020 election. As
described in this executive summary and the report that
follows, President Trump's scheme subverted U.S. foreign policy
toward Ukraine and undermined our national security in favor of
two politically motivated investigations that would help his
presidential reelection campaign. The President demanded that
the newly-elected Ukrainian president, Volodymyr Zelensky,
publicly announce investigations into a political rival that he
apparently feared the most, former Vice President Joe Biden,
and into a discredited theory that it was Ukraine, not Russia,
that interfered in the 2016 presidential election. To compel
the Ukrainian President to do his political bidding, President
Trump conditioned two official acts on the public announcement
of the investigations: a coveted White House visit and critical
U.S. military assistance Ukraine needed to fight its Russian
adversary.
During a July 25, 2019, call between President Trump and
President Zelensky, President Zelensky expressed gratitude for
U.S. military assistance. President Trump immediately responded
by asking President Zelensky to ``do us a favor though'' and
openly pressed for Ukraine to investigate former Vice President
Biden and the 2016 conspiracy theory. In turn, President
Zelensky assured President Trump that he would pursue the
investigation and reiterated his interest in the White House
meeting. Although President Trump's scheme intentionally
bypassed many career personnel, it was undertaken with the
knowledge and approval of senior Administration officials,
including the President's Acting Chief of Staff Mick Mulvaney,
Secretary of State Mike Pompeo, and Secretary of Energy Rick
Perry. In fact, at a press conference weeks after public
revelations about the scheme, Mr. Mulvaney publicly
acknowledged that the President directly tied the hold on
military aid to his desire to get Ukraine to conduct a
political investigation, telling Americans to ``get over it.''
President Trump and his senior officials may see nothing
wrong with using the power of the Office of the President to
pressure a foreign country to help the President's reelection
campaign. Indeed, President Trump continues to encourage
Ukraine and other foreign countries to engage in the same kind
of election interference today. However, the Founding Fathers
prescribed a remedy for a chief executive who places his
personal interests above those of the country: impeachment.
Accordingly, as part of the House of Representatives'
impeachment inquiry, the Permanent Select Committee on
Intelligence, in coordination with the Committees on Oversight
and Reform and Foreign Affairs, was compelled to undertake a
serious, sober, and expeditious investigation into whether the
President's misconduct warrants that remedy.
In response, President Trump engaged in an unprecedented
campaign of obstruction of this impeachment inquiry.
Nevertheless, due in large measure to patriotic and courageous
public servants who provided the Committees with direct
evidence of the President's actions, the Committees uncovered
significant misconduct on the part of the President of the
United States. As required under House Resolution 660, the
Intelligence Committee, in consultation with the Committees on
Oversight and Reform and Foreign Affairs, has prepared this
report to detail the evidence uncovered to date, which will now
be transmitted to the Judiciary Committee for its
consideration.
Section I--The President's Misconduct
THE PRESIDENT CONDITIONED A WHITE HOUSE MEETING AND MILITARY AID TO
UKRAINE ON A PUBLIC ANNOUNCEMENT OF INVESTIGATIONS BENEFICIAL TO HIS
REELECTION CAMPAIGN
The President's Request for a Political Favor
On the morning of July 25, 2019, President Donald Trump
settled in to the White House Executive Residence to join a
telephone call with President Volodymyr Zelensky of Ukraine. It
had been more than three months since President Zelensky, a
political neophyte, had been swept into office in a landslide
victory on a platform of rooting out corruption and ending the
war between his country and Russia. The day of his election,
April 21, President Zelensky spoke briefly with President
Trump, who had called to congratulate him and invite him to a
visit at the White House. As of July 25, no White House meeting
had materialized.
As is typical for telephone calls with other heads of
state, staff members from the National Security Council (NSC)
convened in the White House Situation Room to listen to the
call and take notes, which would later be compiled into a
memorandum that would constitute the U.S. government's official
record of the call. NSC staff had prepared a standard package
of talking points for the President based on official U.S.
policy. The talking points included recommendations to
encourage President Zelensky to continue to promote anti-
corruption reforms in Ukraine, a pillar of American foreign
policy in the country as far back as its independence in the
1990s when Ukraine first rid itself of Kremlin control.
This call would deviate significantly from that script.
Shortly before he was patched through to President Zelensky,
President Trump spoke with Gordon Sondland, who had donated $1
million to President Trump's 2016 presidential inauguration and
whom the President had appointed as the United States
Ambassador to the European Union. Ambassador Sondland had
helped lay the groundwork for a very different kind of call
between the two Presidents.
Ambassador Sondland had relayed a message to President
Zelensky six days earlier that ``assurances to run a fully
transparent investigation'' and ``turn over every stone'' were
necessary in his call with President Trump. Ambassador Sondland
understood these phrases to refer to two investigations
politically beneficial to the President's reelection campaign:
one into former Vice President Joe Biden and a Ukrainian gas
company called Burisma, of which his son sat on the board, and
the other into a discredited conspiracy theory alleging that
Ukraine, not Russia, interfered in the 2016 U.S. election. The
allegations about Vice President Biden were without evidence,
and the U.S. Intelligence Community had unanimously determined
that Russia, not Ukraine, interfered in the 2016 election to
help the candidacy of Donald Trump. Despite the falsehoods,
Ambassador Sondland would make it clear to Ukrainian officials
that the public announcement of these investigations was a
prerequisite for the coveted White House meeting with President
Trump, an effort that would help the President's reelection
campaign.
The White House meeting was not the only official act that
President Trump conditioned on the announcement of these
investigations. Several weeks before his phone call with
President Zelensky, President Trump ordered a hold on nearly
$400 million of congressionally-appropriated security
assistance to Ukraine that provided Kyiv essential support as
it sought to repel Russian forces that were occupying Crimea
and inflicting casualties in the eastern region of the country.
The President's decision to freeze the aid, made without
explanation, sent shock waves through the Department of Defense
(DOD), the Department of State, and the NSC, which uniformly
supported providing this assistance to our strategic partner.
Although the suspension of aid had not been made public by the
day of the call between the two Presidents, officials at the
Ukrainian embassy in Washington had already asked American
officials about the status of the vital military assistance.
At the outset of the conversation on July 25, President
Zelensky thanked President Trump for the ``great support in the
area of defense'' provided by the United States to date. He
then indicated that Ukraine would soon be prepared to purchase
additional Javelin anti-tank missiles from the United States as
part of this defense cooperation. President Trump immediately
responded with his own request: ``I would like you to do us a
favor though,'' which was ``to find out what happened'' with
alleged Ukrainian interference in the 2016 election.
President Trump then asked President Zelensky ``to look
into'' former Vice President Biden's role in encouraging
Ukraine to remove a prosecutor widely viewed by the United
States and numerous European partners to be corrupt. In so
doing, President Trump gave currency to a baseless allegation
that Vice President Biden wanted to remove the corrupt
prosecutor because he was investigating Burisma, a company on
whose board the Vice President's son sat at the time.
Over the course of the roughly thirty-minute call,
President Trump repeated these false allegations and pressed
the Ukrainian President to consult with his personal attorney,
Rudy Giuliani, who had been publicly advocating for months for
Ukraine to initiate these specific investigations. President
Zelensky promised that he would ``work on the investigation of
the case.'' Later in the call, he thanked President Trump for
his invitation to join him at the White House, following up
immediately with a comment that, ``[o]n the other hand,'' he
would ``ensure'' that Ukraine pursued ``the investigation''
that President Trump had requested.
During the call, President Trump also disparaged Marie
Yovanovitch, the former U.S. ambassador to Ukraine, who
championed anti-corruption reforms in the country, and whom
President Trump had unceremoniously removed months earlier
following a smear campaign waged against her by Mr. Giuliani
and others. President Trump claimed that she was ``bad news'''
and was ``going to go through some things.'' He praised the
current prosecutor at the time, who was widely viewed as
corrupt and who helped initiate the smear campaign against her,
calling him ``very good'' and ``very fair.''
Hearing the call as it transpired, several White House
staff members became alarmed. Far from giving the ``full-
throated endorsement of the Ukraine reform agenda'' that had
been hoped for, the President instead demanded a political
investigation into an American--the presidential candidate he
evidently feared most, Joe Biden.
Lieutenant Colonel Alexander Vindman, an NSC staff member
responsible for Ukraine policy who listened to the call,
immediately reported his concerns to NSC lawyers. His
supervisor, NSC Senior Director for Europe and Russia Timothy
Morrison, also reported the call to the lawyers, worrying that
the call would be ``damaging'' if leaked publicly. In response,
the lawyers placed the memorandum summarizing the call onto a
highly classified server, significantly limiting access to the
materials.
The call record would not remain hidden forever. On
September 25, 2019, facing immense public pressure to reveal
the contents of the call and following the announcement the
previous day of a formal impeachment inquiry in the House of
Representatives into President Trump's actions toward Ukraine,
the White House publicly released the memorandum of the July 25
call.
The record of the call would help explain for those
involved in Ukraine policy in the U.S. government, the
Congress, and the public why President Trump, his personal
attorney, Mr. Giuliani, his hand-picked appointees in charge of
Ukraine issues, and various senior Administration officials
would go to great lengths to withhold a coveted White House
meeting and critical military aid from Ukraine at a time when
it served as a bulwark against Russian aggression in Europe.
The answer was as simple as it was inimical to our national
security and election integrity: the President was withholding
officials acts while soliciting something of value to his
reelection campaign--an investigation into his political rival.
The story of that scheme follows.
* * *
The President Removed Anti-Corruption Champion Ambassador Yovanovitch
On April 24, 2019, President Trump abruptly called back to
Washington the United States Ambassador to Ukraine, Marie
``Masha'' Yovanovitch, after a ruthless smear campaign was
waged against her. She was known throughout Ukraine and among
her peers for aggressively advocating for anti-corruption
reforms consistent with U.S. foreign policy and only recently
had been asked to extend her stay in Ukraine. Her effectiveness
in anti-corruption efforts earned her enemies in Kyiv and in
Washington. As Deputy Assistant Secretary of State George Kent
testified in praising Ambassador Yovanovitch: ``You can't
promote principled anticorruption action without pissing off
corrupt people.''
Beginning on March 20, The Hill newspaper published several
op-eds attacking Ambassador Yovanovitch and former Vice
President Joe Biden, relying on information from a Ukrainian
prosecutor, Yuriy Lutsenko, who was widely viewed to be
corrupt. Mr. Lutsenko had served as the chief prosecutor in
Ukraine under the then-incumbent president who lost to
Volodymyr Zelensky in April 2019. Although he would later
recant many of his allegations, Mr. Lutsenko falsely accused
Ambassador Yovanovitch of speaking negatively about President
Trump and giving Mr. Lutsenko a ``do-not-prosecute list.''
The attacks against Ambassador Yovanovitch were amplified
by prominent, close allies of President Trump, including Mr.
Giuliani and his associates, Sean Hannity, and Donald Trump Jr.
President Trump tweeted the smears himself just a month before
he recalled the Ambassador from Ukraine. In the face of attacks
driven by Mr. Lutsenko and the President's allies, Ambassador
Yovanovitch and other senior State Department officials asked
Secretary of State Mike Pompeo to issue a statement of support
for her and for the U.S. Embassy in Ukraine. The Secretary
declined, fearing that President Trump might publicly undermine
those efforts, possibly through a tweet.
Following a ceremony in which she presented an award of
courage to the family of a young female anti-corruption
activist killed in Ukraine for her work, Ambassador Yovanovitch
received an urgent call from the State Department regarding her
``security,'' and imploring her to take the first plane back to
Washington. When she arrived, she was informed that she had
done nothing wrong, but that the President had lost confidence
in her. She was told to leave her post as soon as possible.
In her place, the President would designate three new
agents to spearhead Ukraine policy, political appointees far
more willing to engage in an improper ``domestic political
errand'' than an ambassador known for her efforts to fight
corruption.
The President's Hand-Picked Agents Began the Scheme
Just three days before Ambassador Yovanovitch's abrupt
recall to Washington, President Trump had his first telephone
call with President-elect Zelensky. During that conversation,
President Trump congratulated the Ukrainian leader on his
victory, complimented him on his country's Miss Universe
Pageant contestants, and invited him to visit the White House.
A White House meeting would help demonstrate the United States'
strong support for Ukraine as it fought a hot war with Russia
and attempted to negotiate an end to the conflict with Russian
President Vladimir Putin, as well as to bolster President-elect
Zelensky's standing with his own people as he sought to deliver
on his promised anti-corruption agenda. Although the White
House's public summary of the call included some discussion of
a commitment to ``root out corruption,'' President Trump did
not mention corruption at all.
Shortly after the conversation, President Trump asked Vice
President Mike Pence to attend President Zelensky's
inauguration. Vice President Pence confirmed directly to
President Zelensky his intention to attend during a phone
conversation on April 23, and Vice President Pence's staff and
the U.S. Embassy in Kyiv began preparations for the trip.
At the same time, President Trump's personal attorney, Mr.
Giuliani, intensified his campaign to pressure Ukraine's newly-
elected President to initiate investigations into Joe Biden,
who had officially entered the race for the Democratic
nomination on April 25, and the baseless conspiracy theory
about Ukrainian interference in the 2016 election. On May 9,
the New York Times published an article in which Mr. Giuliani
declared that he intended to travel to Ukraine on behalf of his
client, President Trump, in order to meddle in an
investigation. After public backlash, Mr. Giuliani canceled the
trip, blaming ``some bad people'' around President Zelensky.
Days later, President Trump rescinded the plans for Vice
President Pence to attend President Zelensky's inauguration,
which had not yet been scheduled. The staff member planning the
trip was not provided an explanation for the about-face, but
staff in the U.S. Embassy in Kyiv were disappointed that
President Zelensky would not receive a ``high level'' show of
support from the United States.
In Vice President Pence's stead, Secretary of Energy Rick
Perry led the American delegation to the Ukrainian President's
inauguration. Ambassador Sondland, Special Representative for
Ukraine Negotiations Ambassador Kurt Volker, and Lt. Col.
Vindman also attended. In comments that would foreshadow
troubling events to come, Lt. Col. Vindman warned President
Zelensky to stay out of U.S. domestic politics to avoid
jeopardizing the bipartisan support Ukraine enjoyed in
Congress.
The delegation returned to the United States impressed with
President Zelensky, especially his focus on anti-corruption
reforms. Ambassador Sondland quickly organized a meeting with
President Trump in the Oval Office on May 23, attended by most
of the other members of the delegation. The three political
appointees, who would describe themselves as the ``Three
Amigos,'' relayed their positive impression of President
Zelensky to President Trump and encouraged him to schedule the
Oval Office meeting he promised in his April 21 phone call with
the new leader.
President Trump reacted poorly to the suggestion, claiming
that Ukraine ``tried to take me down'' in 2016. In order to
schedule a White House visit for President Zelensky, President
Trump told the delegation that they would have to ``talk to
Rudy.'' Ambassador Sondland testified that he understood the
President's instruction to be a directive to work with Mr.
Giuliani if they hoped to advance relations with Ukraine.
President Trump directed the three senior U.S. government
officials to assist Mr. Giuliani's efforts, which, it would
soon become clear, were exclusively for the benefit of the
President's reelection campaign.
As the Three Amigos were given responsibility over the U.S.
government's Ukraine portfolio, Bill Taylor, a former
Ambassador to Ukraine, was considering whether to come out of
retirement to accept a request to succeed Ambassador
Yovanovitch in Kyiv. As of May 26, Ambassador Taylor was
``still struggling with the decision,'' and, in particular,
whether anyone can ``hope to succeed with the Giuliani-Biden
issue swirling.'' After receiving assurances from Secretary
Pompeo that U.S. policy toward Ukraine would not change,
Ambassador Taylor accepted the position and arrived in Kyiv on
June 17. Ambassador Taylor would quickly come to observe an
``irregular channel'' led by Mr. Giuliani that, over time,
began to undermine the official channel of diplomatic relations
with Ukraine. Mr. Giuliani would prove to be, as the
President's National Security Advisor Ambassador John Bolton
would tell a colleague, a ``hand grenade that was going to blow
everyone up.''
The President Froze Vital Military Assistance
For fiscal year 2019, Congress appropriated and authorized
$391 million in security assistance to Ukraine: $250 million in
funds administered by DOD and $141 million in funds
administered by the State Department. On June 18, DOD issued a
press release announcing its intention to provide $250 million
in taxpayer-funded security assistance to Ukraine following the
certification that all legitimate conditions on the aid,
including anti-corruption reforms, had been met. Shortly after
this announcement, however, both the Office of Management and
Budget (OMB) and DOD received inquiries from the President
related to the funds. At that time, and throughout the next few
months, support for Ukraine security assistance was
overwhelming and unanimous among all of the relevant agencies
and within Congress.
By July 3, OMB blocked a Congressional notification which
would have cleared the way for the release of $141 million in
State Department security assistance funds. By July 12,
President Trump had placed a hold on all military support
funding for Ukraine. On July 18, OMB announced the hold to all
of the relevant agencies and indicated that it was directed by
the President. No other reason was provided.
During a series of policy meetings involving increasingly
senior officials, the uniform and consistent position of all
policymaking agencies supported the release of funding. Ukraine
experts at DOD, the State Department, and the NSC argued that
it was in the national security interest of the United States
to continue to support Ukraine. As Mr. Morrison testified,
``The United States aids Ukraine and her people so that they
can fight Russia over there, and we don't have to fight Russia
here.''
Agency officials also expressed concerns about the legality
of President Trump's direction to withhold assistance to
Ukraine that Congress had already appropriated for this express
purpose. Two OMB career officials, including one of its legal
counsels, would resign, in part, over concerns regarding the
hold.
By July 25, the date of President Trump's call with
President Zelensky, DOD was also receiving inquiries from
Ukrainian officials about the status of the security
assistance. Nevertheless, President Trump continued to withhold
the funding to Ukraine without explanation, against the
interests of U.S. national security, and over the objections of
these career experts.
The President Conditioned a White House Meeting on Investigations
By the time Ukrainian officials were first learning about
an issue with the anticipated military assistance, the
President's hand-picked representatives to Ukraine had already
informed their Ukrainian counterparts that President Zelensky's
coveted White House meeting would only happen after Ukraine
committed to pursuing the two political investigations that
President Trump and Mr. Giuliani demanded.
Ambassador Sondland was unequivocal in describing this
conditionality, testifying, ``I know that members of this
committee frequently frame these complicated issues in the form
of a simple question: Was there a quid pro quo? As I testified
previously with regard to the requested White House call and
the White House meeting, the answer is yes.'' Ambassadors
Sondland and Volker worked to obtain the necessary assurance
from President Zelensky that he would personally commit to
initiate the investigations in order to secure both.
On July 2, in Toronto, Canada, Ambassador Volker conveyed
the message directly to President Zelensky, specifically
referencing the ``Giuliani factor'' in President Zelensky's
engagement with the United States. For his part, Mr. Giuliani
made clear to Ambassadors Sondland and Volker, who were
directly communicating with the Ukrainians, that a White House
meeting would not occur until Ukraine announced its pursuit of
the two political investigations. After observing Mr.
Giuliani's role in the ouster of a U.S. Ambassador and learning
of his influence with the President, Ukrainian officials soon
understood that ``the key for many things is Rudi [sic].''
On July 10, Ambassador Bolton hosted a meeting in the White
House with two senior Ukrainian officials, several American
officials, including Ambassadors Sondland and Volker, Secretary
Perry, Dr. Fiona Hill, Senior Director for Europe and Russia at
the NSC, and Lt. Col. Vindman. As had become customary each
time Ukrainian officials met with their American counterparts,
the Ukrainians asked about the long-delayed White House
meeting. Ambassador Bolton demurred, but Ambassador Sondland
spoke up, revealing that he had worked out an arrangement with
Acting Chief of Staff Mick Mulvaney to schedule the White House
visit after Ukraine initiated the ``investigations.''
Ambassador Bolton ``stiffened'' and quickly ended the meeting.
Undaunted, Ambassador Sondland ushered many of the
attendees to the Ward Room downstairs to continue their
discussion. In the second meeting, Ambassador Sondland
explained that he had an agreement with Mr. Mulvaney that the
White House visit would come only after Ukraine announced the
Burisma/Biden and 2016 Ukraine election interference
investigations. At this second meeting, both Lt. Col. Vindman
and Dr. Hill objected to intertwining a ``domestic political
errand'' with official foreign policy, and they indicated that
a White House meeting would have to go through proper channels.
Following these discussions, Dr. Hill reported back to
Ambassador Bolton, who told her to ``go and tell [the NSC Legal
Advisor] that I am not part of whatever drug deal Sondland and
Mulvaney are cooking up on this.'' Both Dr. Hill and Lt. Col.
Vindman separately reported the incident to the NSC Legal
Advisor.
The President's Agents Pursued a ``Drug Deal''
Over the next two weeks, Ambassadors Sondland and Volker
worked closely with Mr. Giuliani and senior Ukrainian and
American officials to arrange a telephone call between
President Trump and President Zelensky and to ensure that the
Ukrainian President explicitly promised to undertake the
political investigations required by President Trump to
schedule the White House meeting. As Ambassador Sondland would
later testify: ``Mr. Giuliani was expressing the desires of the
President of the United States, and we knew these
investigations were important to the President.''
On July 19, Ambassador Volker had breakfast with Mr.
Giuliani and his associate, Lev Parnas, at the Trump Hotel in
Washington, D.C. Mr. Parnas would subsequently be indicted for
campaign finance violations as part of an investigation that
remains ongoing. During the conversation, Ambassador Volker
stressed his belief that the attacks being leveled publicly
against Vice President Biden related to Ukraine were false and
that the former Vice President was ``a person of integrity.''
He counseled Mr. Giuliani that the Ukrainian prosecutor pushing
the false narrative, Mr. Lutsenko, was promoting ``a self-
serving narrative to preserve himself in power.'' Mr. Giuliani
agreed, but his promotion of Mr. Lutsenko's false accusations
for the benefit of President Trump did not cease. Ambassador
Volker also offered to help arrange an in-person meeting
between Mr. Giuliani and Andriy Yermak, one of President
Zelensky's most trusted advisors, which would later take place
in Madrid, Spain in early August.
After the breakfast meeting at the Trump Hotel, Ambassador
Volker reported back to Ambassadors Sondland and Taylor about
his conversation with Mr. Giuliani, writing in a text message
that, ``Most impt [sic] is for Zelensky to say that he will
help investigation--and address any specific personnel issues--
if there are any,'' likely referencing President Zelensky's
decision to remove Mr. Lutsenko as prosecutor general, a
decision with which Mr. Giuliani disagreed. The same day,
Ambassador Sondland spoke with President Zelensky and
recommended that the Ukrainian leader tell President Trump that
he ``will leave no stone unturned'' regarding the political
investigations during the upcoming presidential phone call.
Ambassador Sondland emailed several top Administration
officials, including Secretary of State Pompeo, Acting Chief of
Staff Mulvaney, and Secretary Perry, stating that President
Zelensky confirmed that he would ``assure'' President Trump
that ``he intends to run a fully transparent investigation and
will `turn over every stone.''' According to Ambassador
Sondland, he was referring in the email to the Burisma/Biden
and 2016 election interference investigations. Secretary Perry
and Mr. Mulvaney responded affirmatively that the call would
soon take place, and Ambassador Sondland testified later that
``everyone was in the loop'' on plans to condition the White
House meeting on the announcement of political investigations
beneficial to President Trump. The arrangement troubled the
Ukrainian President, who ``did not want to be used as a pawn in
a U.S. reelection campaign.''
The President Pressed President Zelensky to Do a Political Favor
On the morning of July 25, Ambassador Volker sent a text
message to President Zelensky's top aide, Mr. Yermak, less than
30 minutes before the presidential call. He stated: ``Heard
from White House--assuming President Z convinces trump he will
investigate/`get to the bottom of what happened' in 2016, we
will nail down date for visit to Washington. Good luck!''
Shortly before the call, Ambassador Sondland spoke directly
with President Trump.
President Zelensky followed this advice during his
conversation with President Trump. President Zelensky assured
that he would pursue the investigations that President Trump
had discussed--into the Bidens and 2016 election interference--
and, in turn, pressed for the White House meeting that remained
outstanding.
The following day, Ambassadors Volker, Sondland, and Taylor
met with President Zelensky in Kyiv. The Ukrainian President
told them that President Trump had mentioned ``sensitive
issues''' three times during the previous day's phone call.
Following the meeting with the Ukrainian leader, Ambassador
Sondland had a private, one-on-one conversation with Mr. Yermak
in which they discussed ``the issue of investigations.'' He
then retired to lunch at an outdoor restaurant terrace with
State Department aides where he called President Trump directly
from his cellphone. The White House confirmed that the
conversation lasted five minutes.
At the outset of the call, President Trump asked Ambassador
Sondland whether President Zelensky ``was going to do the
investigation'' that President Trump had raised with President
Zelensky the day before. Ambassador Sondland stated that
President Zelensky was ``going to do it'' and ``would do
anything you ask him to.'' According to David Holmes, the State
Department aide sitting closest to Ambassador Sondland and who
overheard the President's voice on the phone, Ambassador
Sondland and President Trump spoke only about the investigation
in their discussion about Ukraine. The President made no
mention of other major issues of importance in Ukraine,
including President Zelensky's aggressive anti-corruption
reforms and the ongoing war it was fighting against Russian-led
forces in eastern Ukraine.
After hanging up the phone, Ambassador Sondland explained
to Mr. Holmes that President Trump ``did not give a shit about
Ukraine.'' Rather, the President cared only about ``big stuff''
that benefited him personally, like ``the Biden investigation
that Mr. Giuliani was pitching,'' and that President Trump had
pushed for in his July 25 call with the Ukrainian leader.
Ambassador Sondland did not recall referencing Biden
specifically, but he did not dispute Mr. Holmes' recollection
of the call with the President or Ambassador Sondland's
subsequent discussion with Mr. Holmes.
The President's Representatives Ratcheted up Pressure on the Ukrainian
President
In the weeks following the July 25 call, the President's
hand-picked representatives increased the President's pressure
campaign on Ukrainian government officials--in person, over the
phone, and by text message--to secure a public announcement of
the investigations beneficial to President Trump's reelection
campaign.
In discussions with Ukrainian officials, Ambassador
Sondland understood that President Trump did not require that
Ukraine conduct investigations as a prerequisite for the White
House meeting so much as publicly announce the investigations--
making clear that the goal was not the investigations, but the
political benefit Trump would derive from their announcement
and the cloud they might put over a political opponent.
On August 2, President Zelensky's advisor, Mr. Yermak,
traveled to Madrid to meet Mr. Giuliani in person. There, they
agreed that Ukraine would issue a public statement, and they
discussed potential dates for a White House meeting. A few days
later, Ambassador Volker told Mr. Giuliani that it ``would be
good'' if Mr. Giuliani would report to ``the boss,'' President
Trump, about ``the results'' of his Madrid discussion so that
President Trump would finally agree to a White House visit by
President Zelensky.
On August 9, Ambassador Volker and Mr. Giuliani spoke twice
by phone, and Ambassador Sondland spoke twice to the White
House for a total of about 20 minutes. In a text message to
Ambassador Volker later that day, Ambassador Sondland wrote,
``I think potus [sic] really wants the deliverable,'' which
Ambassador Sondland acknowledged was the public statement
announcing the two political investigations sought by President
Trump and Mr. Giuliani.
The following day, Ambassador Sondland briefed State
Department Counselor Ulrich Brechbuhl, a top advisor to
Secretary Pompeo, on these discussions about President Zelensky
issuing a statement that would include an announcement of the
two political investigations. Ambassador Sondland also emailed
Secretary Pompeo directly, copying the State Department's
executive secretary and Mr. Brechbuhl, to inform them about the
agreement for President Zelensky to give the press conference.
He expected to see a draft of the statement, which would be
``delivered for our review in a day or two.'' Ambassador
Sondland noted his hope that the draft statement would ``make
the boss happy enough to authorize an invitation.''
On August 12, Mr. Yermak sent the proposed statement to
Ambassador Volker, but it lacked specific references to the two
investigations politically beneficial to President Trump's
reelection campaign. The following morning, Ambassadors
Sondland and Volker spoke with Mr. Giuliani, who made clear
that if the statement ``doesn't say Burisma and 2016, it's not
credible.'' Ambassador Volker revised the statement following
this direction to include those references and returned it to
the Ukrainian President's aide.
Mr. Yermak balked at getting drawn into U.S. politics and
asked Ambassador Volker whether the United States had inquired
about investigations through any appropriate Department of
Justice channels. The answer was no, and several witnesses
testified that a request to a foreign country to investigate a
U.S. citizen ``for political reasons''' goes ``against
everything'' the United States sought to promote in eastern
Europe, specifically the rule of law. Ambassador Volker
eventually agreed with Mr. Yermak that the announcement of the
Biden/Burisma and 2016 elections investigations would ``look
like it would play into our domestic politics,'' so the
statement was temporarily ``shelved.''
Nevertheless, Ambassador Sondland, in accordance with
President Trump's wishes, continued to pursue the statement
into early September 2019.
Ukrainians Inquired about the President's Hold on Security Assistance
Once President Trump placed security assistance on hold in
July, ``it was inevitable that it was eventually going to come
out.'' On July 25, DOD officials learned that diplomats at the
Ukrainian Embassy in Washington had made multiple overtures to
DOD and the State Department ``asking about security
assistance.'' Separately, two different contacts at the
Ukrainian Embassy approached Ambassador Volker's special
advisor, Catherine Croft, to ask her in confidence about the
hold. Ms. Croft was surprised at the effectiveness of their
``diplomatic tradecraft,'' noting that they ``found out very
early on'' that the United States was withholding critical
military aid to Ukraine. By mid-August, before the freeze on
aid became public, Lt. Col. Vindman had also received inquiries
from an official at the Ukrainian Embassy.
The hold remained in place throughout August against the
unanimous judgment of American officials focused on Ukraine
policy. Without an explanation for the hold, which ran contrary
to the recommendation of all relevant agencies, and with
President Trump already conditioning a White House visit on the
announcement of the political investigations, it became
increasingly apparent to multiple witnesses that the military
aid was also being withheld in exchange for the announcement of
them. As both Ambassador Sondland and Mr. Holmes would later
testify, it became as clear as ``two plus two equals four.''
On August 22, Ambassador Sondland emailed Secretary Pompeo
again, recommending a plan for a potential meeting between
President Trump and President Zelensky in Warsaw, Poland on
September 1. Ambassador Sondland noted that President Zelensky
should ``look him in the eye'' and tell President Trump that
once new prosecutorial officials were in place in Ukraine,
``Zelensky should be able to move forward publicly and with
confidence on those issues of importance to Potus and the
U.S.'' Ambassador Sondland testified that this was a reference
to the political investigations that President Trump discussed
on the July 25 call, which Secretary Pompeo had listened to.
Ambassador Sondland hoped this would ``break the logjam''--the
hold on critical security assistance to Ukraine. Secretary
Pompeo replied three minutes later: ``Yes.''
The President's Security Assistance Hold Became Public
On August 28, Politico published a story revealing
President Trump's weeks-long hold on U.S. military assistance
to Ukraine. Senior Ukrainian officials expressed grave concern,
deeply worried about the practical impact on their efforts to
fight Russian aggression, but also about the public message it
sent to the Russian government, which would almost certainly
seek to exploit any real or perceived crack in U.S. resolve
toward Ukraine.
On August 29, at the urging of National Security Advisor
Bolton, Ambassador Taylor wrote a first-person cable to
Secretary Pompeo. This was the only first-person cable the
Ambassador had ever sent in his decades of government service.
He explained the ``folly'' of withholding security assistance
to Ukraine as it fought a hot war against Russia on its
borders. He wrote that he ``could not and would not defend such
a policy.'' Ambassador Taylor stated that Secretary Pompeo may
have carried the cable with him to a meeting at the White
House.
The same day that Ambassador Taylor sent his cable,
President Trump cancelled his planned trip to Warsaw for a
World War II commemoration event, where he was scheduled to
meet with President Zelensky. Vice President Pence traveled in
his place. Ambassador Sondland also traveled to Warsaw and, at
a pre-briefing discussion with the Vice President before he met
President Zelensky, Ambassador Sondland raised the issue of the
hold on security assistance. He told Vice President Pence that
he was concerned that the security assistance ``had become tied
to the issue of investigations''' and that ``everything is
being held up until these statements get made.'' Vice President
Pence nodded in response, apparently expressing neither
surprise nor dismay at the linkage between the two.
At the meeting, President Zelensky expressed concern that
even an appearance of wavering support from the United States
for Ukraine could embolden Russia. Vice President Pence
reiterated U.S. support for Ukraine, but could not promise that
the hold would be lifted. Vice President Pence said he would
relay his support for lifting the hold to President Trump so a
decision could be made on security assistance as soon as
possible. Vice President Pence spoke with President Trump that
evening, but the hold was not lifted.
Following this meeting, Ambassador Sondland pulled aside
President Zelensky's advisor, Mr. Yermak, to explain that the
hold on security assistance was conditioned on the public
announcement of the Burisma/Biden and the 2016 election
interference investigations. After learning of the
conversation, Ambassador Taylor texted Ambassador Sondland:
``Are we now saying that security assistance and WH meeting are
conditioned on investigations?''
The two then spoke by phone. Ambassador Sondland explained
that he had previously made a ``mistake'' in telling Ukrainian
officials that only the White House meeting was conditioned on
a public announcement of the political investigations
beneficial to President Trump. He clarified that
``everything''--the White House meeting and hundreds of
millions of dollars of security assistance to Ukraine--was now
conditioned on the announcement. President Trump wanted
President Zelensky in a ``public box,'' which Ambassador Taylor
understood to mean that President Trump required that President
Zelensky make a public announcement about the investigations
and that a private commitment would not do.
On September 7, President Trump and Ambassador Sondland
spoke. Ambassador Sondland stated to his colleagues that the
President said, ``there was no quid pro quo,'' but that
President Zelensky would be required to announce the
investigations in order for the hold on security assistance to
be lifted, ``and he should want to do it.'' Ambassador Sondland
passed on a similar message directly to President Zelensky and
Mr. Yermak that, ``although this was not a quid pro quo, if
President Zelensky did not clear things up in public, we would
be at a stalemate,'' referring to the hold on security
assistance. Arrangements were made for the Ukrainian President
to make a public statement during an interview on CNN.
After speaking with Ambassador Sondland, Ambassador Taylor
texted Ambassadors Sondland and Volker: ``As I said on the
phone, I think it's crazy to withhold security assistance for
help with a political campaign.'' Notwithstanding his long-held
understanding that the White House meeting was conditioned on
the public announcement of two political investigations desired
by President Trump--and not broader anti-corruption concerns--
Ambassador Sondland responded hours later:
Bill, I believe you are incorrect about President
Trump's intentions. The President has been crystal
clear: no quid pro quo's of any kind. The President is
trying to evaluate whether Ukraine is truly going to
adopt the transparency and reforms that President
Zelensky promised during his campaign. I suggest we
stop the back and forth by text. If you still have
concerns, I recommend you give Lisa Kenna or [Secretary
Pompeo] a call to discuss with them directly. Thanks.
Ambassador Sondland's subsequent testimony revealed this
text to be a false exculpatory--an untruthful statement that
can later be used to conceal incriminating information. In his
public testimony, Ambassador Sondland testified that the
President's direction to withhold a presidential telephone call
and a White House meeting for President Zelensky were both quid
pro quos designed to pressure Ukraine to announce the
investigations. He also testified that he developed a clear
understanding that the military aid was also conditioned on the
investigations, that it was as simple as 2+2=4. Sondland
confirmed that his clear understanding was unchanged after
speaking with President Trump, which he then communicated to
the Ukrainians--President Zelensky had to publicly announce the
two investigations if he wanted to get the meeting or the
military aid.
In Ambassador Sondland's testimony, he was not clear on
whether he had one conversation with the President in which the
subject of a quid pro quo came up, or two, or on precisely
which date the conversation took place during the period of
September 6 through 9. In one version of the conversation,
which Ambassador Sondland suggested may have taken place on
September 9, he claimed that the President answered an open
question about what he wanted from Ukraine with an immediate
denial--``no quid pro quo.'' In another, he admitted that the
President told him that President Zelensky should go to a
microphone and announce the investigations, and that he should
want to do so--effectively confirming a quid pro quo.
Both Ambassador Taylor and Mr. Morrison, relying on their
contemporaneous notes, testified that the call between
Ambassador Sondland and President Trump occurred on September
7, which is further confirmed by Ambassador Sondland's own text
message on September 8, in which he wrote that he had
``multiple convos''' with President Zelensky and President
Trump. A call on September 9, which would have occurred in the
middle of the night, is at odds with the weight of the evidence
and not backed up by any records the White House was willing to
provide Ambassador Sondland. Regardless of the date, Ambassador
Sondland did not contest telling both Mr. Morrison and
Ambassador Taylor of a conversation he had with the President
in which the President reaffirmed Ambassador Sondland's
understanding of the quid pro quo for the military aid.
As Ambassador Sondland acknowledged bluntly in his
conversation with Mr. Holmes, President Trump's sole interest
with respect to Ukraine was the ``big stuff'' that benefited
him personally, such as the investigations into former Vice
President Biden, and not President Zelensky's promises of
transparency and reform.
The President's Scheme Unraveled
By early September, President Zelensky was ready to make a
public announcement of the two investigations to secure a White
House meeting and the military assistance his country
desperately needed. He proceeded to book an interview on CNN,
during which he could make such an announcement, but other
events soon intervened.
On September 9, the House Permanent Select Committee on
Intelligence, the Committees on Oversight and Reform, and the
Committee on Foreign Affairs announced an investigation into
the scheme by President Trump and his personal attorney, Mr.
Giuliani, ``to improperly pressure the Ukrainian government to
assist the President's bid for reelection.'' The Committees
sent document production and preservation requests to the White
House and the State Department related to the investigation.
NSC staff members believed this investigation might have had
``the effect of releasing the hold'' on Ukraine military
assistance because it would have been ``potentially politically
challenging'' to ``justify that hold.''
Later that day, the Inspector General of the Intelligence
Community (ICIG) sent a letter to Chairman Schiff and Ranking
Member Nunes notifying the Committee that a whistleblower had
filed a complaint on August 12 that the ICIG had determined to
be both an ``urgent concern'' and ``credible.'' Nevertheless,
the Acting Director of National Intelligence (DNI) took the
unprecedented step of withholding the complaint from the
Congressional Intelligence Committees, in coordination with the
White House and the Department of Justice.
The White House had been aware of the whistleblower
complaint for several weeks, and press reports indicate that
the President was briefed on it in late August. The ICIG's
notification to Congress of the complaint's existence, and the
announcement of a separate investigation into the same subject
matter, telegraphed to the White House that attempts to
condition the security assistance on the announcement of the
political investigations beneficial to President Trump--and
efforts to cover up that misconduct--would not last.
On September 11, in the face of growing public and
Congressional scrutiny, President Trump lifted the hold on
security assistance to Ukraine. As with the implementation of
the hold, no clear reason was given. By the time the President
ordered the release of security assistance to Ukraine, DOD was
unable to spend approximately 14 percent of the funds
appropriated by Congress for Fiscal Year 2019. Congress had to
pass a new law to extend the funding in order to ensure the
full amount could be used by Ukraine to defend itself.
Even after the hold was lifted, President Zelensky still
intended to sit for an interview with CNN in order to announce
the investigations--indeed, he still wanted the White House
meeting. At the urging of Ambassador Taylor, President Zelensky
cancelled the CNN interview on September 18 or 19. The White
House meeting, however, still has not occurred.
The President's Chief of Staff Confirmed Aid was Conditioned on
Investigations
The conditioning of military aid to Ukraine on the
investigations sought by the President was as clear to
Ambassador Sondland as ``two plus two equals four.'' In fact,
the President's own Acting Chief of Staff, someone who meets
with him daily, admitted that he had discussed security
assistance with the President and that his decision to withhold
it was directly tied to his desire to get Ukraine to conduct a
political investigation.
On October 17, at a press briefing in the White House,
Acting Chief of Staff Mick Mulvaney confirmed that President
Trump withheld the essential military aid for Ukraine as
leverage to pressure Ukraine to investigate the conspiracy
theory that Ukraine had interfered in the 2016 U.S. election.
As Dr. Hill made clear in her testimony, this false narrative
has been promoted by President Putin to deflect away from
Russia's systemic interference in our election and to drive a
wedge between the United States and a key partner.
According to Mr. Mulvaney, President Trump ``[a]bsolutely''
mentioned ``corruption related to the DNC server'' in
connection with the security assistance during his July 25
call. Mr. Mulvaney also stated that the server was part of
``why we held up the money.'' After a reporter attempted to
clarify this explicit acknowledgement of a quid pro quo, Mr.
Mulvaney replied: ``We do that all the time with foreign
policy.'' He added, ``I have news for everybody: get over it.
There is going to be political influence in foreign policy.''
Ambassador Taylor testified that in his decades of military
and diplomatic service, he had never seen another example of
foreign aid conditioned on the personal or political interests
of the President. Rather, ``we condition assistance on issues
that will improve our foreign policy, serve our foreign policy,
ensure that taxpayers' money is well-spent,'' not specific
investigations designed to benefit the political interests of
the President of the United States.
In contrast, President Trump does not appear to believe
there is any such limitation on his power to use White House
meetings, military aid or other official acts to procure
foreign help in his reelection. When asked by a reporter on
October 3 what he had hoped President Zelensky would do
following their July 25 call, President Trump responded:
``Well, I would think that, if they were honest about it,
they'd start a major investigation into the Bidens. It's a very
simple answer.''
Section II--The President's Obstruction of the House of
Representatives' Impeachment Inquiry
THE PRESIDENT OBSTRUCTED THE IMPEACHMENT INQUIRY BY INSTRUCTING
WITNESSES AND AGENCIES TO IGNORE SUBPOENAS FOR DOCUMENTS AND TESTIMONY
An Unprecedented Effort to Obstruct an Impeachment Inquiry
Donald Trump is the first President in the history of the
United States to seek to completely obstruct an impeachment
inquiry undertaken by the House of Representatives under
Article I of the Constitution, which vests the House with the
``sole Power of Impeachment.'' He has publicly and repeatedly
rejected the authority of Congress to conduct oversight of his
actions and has directly challenged the authority of the House
to conduct an impeachment inquiry into his actions regarding
Ukraine.
President Trump ordered federal agencies and officials to
disregard all voluntary requests for documents and defy all
duly authorized subpoenas for records. He also directed all
federal officials in the Executive Branch not to testify--even
when compelled.
No other President has flouted the Constitution and power
of Congress to conduct oversight to this extent. No President
has claimed for himself the right to deny the House's authority
to conduct an impeachment proceeding, control the scope of a
power exclusively vested in the House, and forbid any and all
cooperation from the Executive Branch. Even President Richard
Nixon--who obstructed Congress by refusing to turn over key
evidence--accepted the authority of Congress to conduct an
impeachment inquiry and permitted his aides and advisors to
produce documents and testify to Congressional committees.
Despite President Trump's unprecedented and categorical
commands, the House gathered overwhelming evidence of his
misconduct from courageous individuals who were willing to
follow the law, comply with duly authorized subpoenas, and tell
the truth. In response, the President engaged in a brazen
effort to publicly attack and intimidate these witnesses.
If left unanswered, President Trump's ongoing effort to
thwart Congress' impeachment power risks doing grave harm to
the institution of Congress, the balance of power between our
branches of government, and the Constitutional order that the
President and every Member of Congress have sworn to protect
and defend.
Constitutional Authority for Congressional Oversight and Impeachment
The House's Constitutional and legal authority to conduct
an impeachment inquiry is clear, as is the duty of the
President to cooperate with the House's exercise of this
authority.
Article I of the U.S. Constitution gives the House of
Representatives the ``sole Power of Impeachment.'' The Framers
intended the impeachment power to be an essential check on a
President who might engage in corruption or abuse of power.
Congress is empowered to conduct oversight and investigations
to carry out its authorities under Article I. Because the
impeachment power is a core component of the nation's
Constitutional system of checks and balances, Congress'
investigative authority is at its zenith during an impeachment
inquiry.
The Supreme Court has made clear that Congress' authority
to investigate includes the authority to compel the production
of information by issuing subpoenas, a power the House has
delegated to its committees pursuant to its Constitutional
authority to ``determine the Rules of its Proceedings.''
Congress has also enacted statutes to support its power to
investigate and oversee the Executive Branch. These laws impose
criminal and other penalties on those who fail to comply with
inquiries from Congress or block others from doing so, and they
reflect the broader Constitutional requirement to cooperate
with Congressional investigations.
Unlike President Trump, past Presidents who were the
subject of impeachment inquiries--including Presidents Andrew
Johnson, Richard Nixon, and Bill Clinton--recognized and, to
varying degrees, complied with information requests and
subpoenas.
President Nixon, for example, agreed to let his staff
testify voluntarily in the Senate Watergate investigation,
stating: ``All members of the White House Staff will appear
voluntarily when requested by the committee. They will testify
under oath, and they will answer fully all proper questions.''
President Nixon also produced documents in response to the
House's subpoenas as part of its impeachment inquiry, including
more than 30 transcripts of White House recordings and notes
from meetings with the President. When President Nixon withheld
tape recordings and produced heavily edited and inaccurate
records, the House Judiciary Committee approved an article of
impeachment for obstruction.
The President's Categorical Refusal to Comply
Even before the House of Representatives launched its
investigation regarding Ukraine, President Trump rejected the
authority of Congress to investigate his actions, proclaiming,
``We're fighting all the subpoenas,'' and ``I have an Article
II, where I have the right to do whatever I want as
president.''
When the Intelligence, Oversight and Reform, and Foreign
Affairs Committees began reviewing the President's actions as
part of the House's impeachment inquiry, the President
repeatedly challenged the legitimacy of the investigation in
word and deed. His rhetorical attacks appeared intended not
only to dispute reports of his misconduct, but to persuade the
American people that the House lacks authority to investigate
the President.
On September 26, President Trump argued that Congress
should not be ``allowed'' to impeach him under the Constitution
and that there ``should be a way of stopping it--maybe legally,
through the courts.'' A common theme of his defiance has been
his claims that Congress is acting in an unprecedented way and
using unprecedented rules. However, the House has been
following the same investigative rules that Republicans
championed when they were in control.
On October 8, White House Counsel Pat Cipollone sent a
letter to House Speaker Nancy Pelosi and the Chairmen of the
investigating Committees confirming that President Trump
directed his entire Administration not to cooperate with the
House's impeachment inquiry. Mr. Cipollone wrote: ``President
Trump cannot permit his Administration to participate in this
partisan inquiry under these circumstances.''
Mr. Cipollone's letter advanced remarkably politicized
arguments and legal theories unsupported by the Constitution,
judicial precedent, and more than 200 years of history. If
allowed to stand, the President's defiance, as justified by Mr.
Cipollone, would represent an existential threat to the
nation's Constitutional system of checks and balances,
separation of powers, and rule of law.
The President's Refusal to Produce Any and All Subpoenaed Documents
Following President Trump's categorical order, not a single
document has been produced by the White House, the Office of
the Vice President, the Office of Management and Budget, the
Department of State, the Department of Defense, or the
Department of Energy in response to 71 specific, individualized
requests or demands for records in their possession, custody,
or control. These subpoenas remain in full force and effect.
These agencies and offices also blocked many current and former
officials from producing records directly to the Committees.
Certain witnesses defied the President's sweeping,
categorical, and baseless order and identified the substance of
key documents. For example, Ambassador Gordon Sondland attached
ten exhibits to his written hearing testimony reflecting
reproductions of certain communications with high-level
Administration officials, including Acting White House Chief of
Staff Mick Mulvaney, former National Security Advisor John
Bolton, Secretary of State Mike Pompeo, and Secretary of Energy
Rick Perry. Other witnesses identified numerous additional
documents that the President and various agencies are
withholding that are directly relevant to the impeachment
inquiry.
Like the White House, the Department of State refused to
produce a single document in response to its subpoena, even
though there is no legal basis for the Department's actions. In
fact, on November 22, the Department was forced to produce 99
pages of emails, letters, notes, timelines, and news articles
to a non-partisan, nonprofit ethics watchdog organization
pursuant to a court order in a lawsuit filed under the Freedom
of Information Act (FOIA). Although limited in scope, this
production affirms that the Department is withholding
responsive documents from Congress without any valid legal
basis.
The President's Refusal to Allow Top Aides to Testify
No other President in history has issued an order
categorically directing the entire Executive Branch not to
testify before Congress, including in the context of an
impeachment inquiry. President Trump issued just such an order.
As reflected in Mr. Cipollone's letter, President Trump
directed government witnesses to violate their legal
obligations and defy House subpoenas--regardless of their
offices or positions. President Trump even extended his order
to former officials no longer employed by the federal
government. This Administration-wide effort to prevent all
witnesses from providing testimony was coordinated and
comprehensive.
At President Trump's direction, twelve current or former
Administration officials refused to testify as part of the
House's impeachment inquiry, ten of whom did so in defiance of
duly authorized subpoenas:
Mick Mulvaney, Acting White House Chief of Staff
Robert B. Blair, Assistant to the President and
Senior Advisor to the Chief of Staff
Ambassador John Bolton, Former National Security
Advisor
John A. Eisenberg, Deputy Counsel to the President
for National Security Affairs and Legal Advisor, National
Security Council
Michael Ellis, Senior Associate Counsel to the
President and Deputy Legal Advisor, National Security Council
Preston Wells Griffith, Senior Director for
International Energy and Environment, National Security Council
Dr. Charles M. Kupperman, Former Deputy Assistant
to the President for National Security Affairs, National
Security Council
Russell T. Vought, Acting Director, Office of
Management and Budget
Michael Duffey, Associate Director for National
Security Programs, Office of Management and Budget
Brian McCormack, Associate Director for Natural
Resources, Energy, and Science, Office of Management and Budget
T. Ulrich Brechbuhl, Counselor, Department of
State
Secretary Rick Perry, Department of Energy
These witnesses were warned that their refusal to testify
``shall constitute evidence that may be used against you in a
contempt proceeding'' and ``may be used as an adverse inference
against you and the President.''
The President's Unsuccessful Attempts to Block Other Key Witnesses
Despite President Trump's orders that no Executive Branch
employees should cooperate with the House's impeachment
inquiry, multiple key officials complied with duly authorized
subpoenas and provided critical testimony at depositions and
public hearings. These officials not only served their nation
honorably, but they fulfilled their oath to support and defend
the Constitution of the United States.
In addition to the President's broad orders seeking to
prohibit all Executive Branch employees from testifying, many
of these witnesses were personally directed by senior political
appointees not to cooperate with the House's impeachment
inquiry. These directives frequently cited or enclosed copies
of Mr. Cipollone's October 8 letter conveying the President's
order not to comply.
For example, the State Department, relying on President
Trump's order, attempted to block Ambassador Marie Yovanovitch
from testifying, but she fulfilled her legal obligations by
appearing at a deposition on October 11 and a hearing on
November 15. More than a dozen current and former officials
followed her courageous example by testifying at depositions
and public hearings over the course of the last two months. The
testimony from these witnesses produced overwhelming and clear
evidence of President Trump's misconduct, which is described in
detail in the first section of this report.
The President's Intimidation of Witnesses
President Trump publicly attacked and intimidated witnesses
who came forward to comply with duly authorized subpoenas and
testify about his misconduct, raising grave concerns about
potential violations of criminal laws intended to protect
witnesses appearing before Congressional proceedings. For
example, the President attacked:
Ambassador Marie Yovanovitch, who served the
United States honorably for decades as a U.S. diplomat and
anti-corruption advocate in posts around the world under six
different Presidents;
Ambassador Bill Taylor, who graduated at the top
of his class at West Point, served as an infantry commander in
Vietnam, and earned a Bronze Star and an Air Medal with a V
device for valor;
Lieutenant Colonel Alexander Vindman, an active-
duty Army officer for more than 20 years who earned a Purple
Heart for wounds he sustained in an improvised explosive device
attack in Iraq, as well as the Combat Infantryman Badge; and
Jennifer Williams, who is Vice President Mike
Pence's top advisor on Europe and Russia and has a
distinguished record of public service under the Bush, Obama,
and Trump Administrations.
The President engaged in this effort to intimidate these
public servants to prevent them from cooperating with Congress'
impeachment inquiry. He issued threats, openly discussed
possible retaliation, made insinuations about their character
and patriotism, and subjected them to mockery and derision--
when they deserved the opposite. The President's attacks were
broadcast to millions of Americans--including witnesses'
families, friends, and coworkers.
It is a federal crime to intimidate or seek to intimidate
any witness appearing before Congress. This prohibition applies
to anyone who knowingly ``uses intimidation, threatens, or
corruptly persuades'' another person in order to ``influence,
delay, or prevent the testimony of any person in an official
proceeding.'' Violations of this law can carry a criminal
sentence of up to 20 years in prison.
In addition to his relentless attacks on witnesses who
testified in connection with the House's impeachment inquiry,
the President also repeatedly threatened and attacked a member
of the Intelligence Community who filed an anonymous
whistleblower complaint raising an ``urgent concern'' that
``appeared credible'' regarding the President's conduct. The
whistleblower filed the complaint confidentially with the
Inspector General of the Intelligence Community, as authorized
by the relevant whistleblower law. Federal law prohibits the
Inspector General from revealing the whistleblower's identity.
Federal law also protects the whistleblower from retaliation.
In more than 100 public statements about the whistleblower
over a period of just two months, the President publicly
questioned the whistleblower's motives, disputed the accuracy
of the whistleblower's account, and encouraged others to reveal
the whistleblower's identity. Most chillingly, the President
issued a threat against the whistleblower and those who
provided information to the whistleblower regarding the
President's misconduct, suggesting that they could face the
death penalty for treason.
The President's campaign of intimidation risks discouraging
witnesses from coming forward voluntarily, complying with
mandatory subpoenas for documents and testimony, and disclosing
potentially incriminating evidence in this inquiry and future
Congressional investigations.
Key Findings of Fact
Based on witness testimony and evidence collected during
the impeachment inquiry, the Intelligence Committee has found
that:
I. Donald J. Trump, the 45th President of the United
States--acting personally and through his agents within and
outside of the U.S. government--solicited the interference of a
foreign government, Ukraine, in the 2020 U.S. presidential
election. The President engaged in this course of conduct for
the benefit of his reelection, to harm the election prospects
of a political opponent, and to influence our nation's upcoming
presidential election to his advantage. In so doing, the
President placed his personal political interests above the
national interests of the United States, sought to undermine
the integrity of the U.S. presidential election process, and
endangered U.S. national security.
II. In furtherance of this scheme, President Trump--
directly and acting through his agents within and outside the
U.S. government--sought to pressure and induce Ukraine's newly-
elected president, Volodymyr Zelensky, to publicly announce
unfounded investigations that would benefit President Trump's
personal political interests and reelection effort. To advance
his personal political objectives, President Trump encouraged
the President of Ukraine to work with his personal attorney,
Rudy Giuliani.
III. As part of this scheme, President Trump, acting in his
official capacity and using his position of public trust,
personally and directly requested from the President of Ukraine
that the government of Ukraine publicly announce investigations
into (1) the President's political opponent, former Vice
President Joseph R. Biden, Jr. and his son, Hunter Biden, and
(2) a baseless theory promoted by Russia alleging that
Ukraine--rather than Russia--interfered in the 2016 U.S.
election. These investigations were intended to harm a
potential political opponent of President Trump and benefit the
President's domestic political standing.
IV. President Trump ordered the suspension of $391 million
in vital military assistance urgently needed by Ukraine, a
strategic partner, to resist Russian aggression. Because the
aid was appropriated by Congress, on a bipartisan basis, and
signed into law by the President, its expenditure was required
by law. Acting directly and through his subordinates within the
U.S. government, the President withheld from Ukraine this
military assistance without any legitimate foreign policy,
national security, or anti-corruption justification. The
President did so despite the longstanding bipartisan support of
Congress, uniform support across federal departments and
agencies for the provision to Ukraine of the military
assistance, and his obligations under the Impoundment Control
Act.
V. President Trump used the power of the Office of the
President and exercised his authority over the Executive
Branch, including his control of the instruments of the federal
government, to apply increasing pressure on the President of
Ukraine and the Ukrainian government to announce the
politically-motivated investigations desired by President
Trump. Specifically, to advance and promote his scheme, the
President withheld official acts of value to Ukraine and
conditioned their fulfillment on actions by Ukraine that would
benefit his personal political interests:
A. President Trump--acting through agents within and
outside the U.S. government--conditioned a head of
state meeting at the White House, which the President
of Ukraine desperately sought to demonstrate continued
United States support for Ukraine in the face of
Russian aggression, on Ukraine publicly announcing the
investigations that President Trump believed would aid
his reelection campaign.
B. To increase leverage over the President of
Ukraine, President Trump, acting through his agents and
subordinates, conditioned release of the vital military
assistance he had suspended to Ukraine on the President
of Ukraine's public announcement of the investigations
that President Trump sought.
C. President Trump's closest subordinates and
advisors within the Executive Branch, including Acting
Chief of Staff Mick Mulvaney, Secretary of State Mike
Pompeo, Secretary of Energy J. Richard Perry, and other
senior White House and Executive Branch officials had
knowledge of, in some cases facilitated and furthered
the President's scheme, and withheld information about
the scheme from the Congress and the American public.
VI. In directing and orchestrating this scheme to advance
his personal political interests, President Trump did not
implement, promote, or advance U.S. anti-corruption policies.
In fact, the President sought to pressure and induce the
government of Ukraine to announce politically-motivated
investigations lacking legitimate predication that the U.S.
government otherwise discourages and opposes as a matter of
policy in that country and around the world. In so doing, the
President undermined U.S. policy supporting anti-corruption
reform and the rule of law in Ukraine, and undermined U.S.
national security.
VII. By withholding vital military assistance and
diplomatic support from a strategic foreign partner government
engaged in an ongoing military conflict illegally instigated by
Russia, President Trump compromised national security to
advance his personal political interests.
VIII. Faced with the revelation of his actions, President
Trump publicly and repeatedly persisted in urging foreign
governments, including Ukraine and China, to investigate his
political opponent. This continued solicitation of foreign
interference in a U.S. election presents a clear and present
danger that the President will continue to use the power of his
office for his personal political gain.
IX. Using the power of the Office of the President, and
exercising his authority over the Executive Branch, President
Trump ordered and implemented a campaign to conceal his conduct
from the public and frustrate and obstruct the House of
Representatives' impeachment inquiry by:
A. refusing to produce to the impeachment inquiry's
investigating Committees information and records in the
possession of the White House, in defiance of a lawful
subpoena;
B. directing Executive Branch agencies to defy lawful
subpoenas and withhold the production of all documents
and records from the investigating Committees;
C. directing current and former Executive Branch
officials not to cooperate with the Committees,
including in defiance of lawful subpoenas for
testimony; and
D. intimidating, threatening, and tampering with
prospective and actual witnesses in the impeachment
inquiry in an effort to prevent, delay, or influence
the testimony of those witnesses.
In so doing, and despite the fact that the Constitution
vests in the House of Representatives the ``sole Power of
Impeachment,'' the President sought to arrogate to himself the
right to determine the propriety, scope, and nature of an
impeachment inquiry into his own misconduct, and the right to
deny any and all information to the Congress in the conduct of
its constitutional responsibilities.
Section I. The President's Misconduct
1. The President Forced Out the U.S. Ambassador to Ukraine
The President forced out the United States Ambassador to
Ukraine, Marie Yovanovitch, following a baseless smear campaign
promoted by President Trump's personal attorney, Rudy Giuliani,
and others. The campaign publicized conspiracy theories that
benefited the President's personal political interests and
undermined official U.S. policy, some of which the President
raised during his July 25 call with the President of Ukraine.
Overview
On April 24, 2019, President Donald J. Trump abruptly
recalled the U.S. Ambassador to Ukraine, Marie Yovanovitch.
Ambassador Yovanovitch, an award-winning 33-year veteran
Foreign Service officer, aggressively advocated for anti-
corruption reforms in Ukraine consistent with U.S. foreign
policy. President Trump forced her out following a baseless
smear campaign promoted by his personal attorney, Rudy
Giuliani, associates of Mr. Giuliani, and corrupt Ukrainians.
Ambassador Yovanovitch was told by the State Department
that President Trump had lost confidence in her, but she was
never provided a substantive justification for her removal. Her
ouster set the stage for other U.S. officials appointed by
President Trump to work in cooperation with Mr. Giuliani to
advance a scheme in support of the President's reelection.
Mr. Giuliani and his associates promoted false conspiracy
theories about Ukraine colluding with Democrats to interfere in
the 2016 U.S. election. This false claim was promoted by
Russian President Vladimir Putin in February 2017--less than a
month after the unanimous U.S. Intelligence Community
assessment that Russia alone was responsible for a covert
influence campaign aimed at helping President Trump during the
2016 election. Mr. Giuliani also made discredited public
allegations about former Vice President Joe Biden and his son,
Hunter, in an apparent effort to hurt President Trump's
political rival in the 2020 presidential election. Mr.
Giuliani's associates, with their own ties to President Trump,
also worked to enter into arrangements with current and former
corrupt Ukrainian officials to promote these false
allegations--the same unfounded allegations President Trump
requested that Ukraine investigate on his July 25 call with
Ukrainian President Volodymyr Zelensky.
President Trump amplified these baseless allegations by
tweeting them just a month before he recalled Ambassador
Yovanovitch. Despite requests from Ambassador Yovanovitch and
other senior State Department officials, Secretary of State
Mike Pompeo refused to issue a statement of support for the
Ambassador or the U.S. Embassy in Ukraine for fear of being
undermined by a tweet by President Trump.
The removal of Ambassador Yovanovitch left a vacuum in the
leadership of the U.S. Embassy in Ukraine at an important time.
A new president had just been elected on an anti-corruption
platform, and the country was in a period of transition as it
continued to defend itself against Russia-led military
aggression in the east.
Anti-Corruption Ceremony Interrupted to Recall Anti-Corruption
Ambassador
Ambassador Yovanovitch represented the United States of
America as the U.S. Ambassador to Ukraine from 2016 to 2019.
She is a non-partisan career public servant, first selected for
the American Foreign Service in 1986. President George W. Bush
named her as an Ambassador twice, to the Kyrgyz Republic and
Armenia, and President Barack Obama nominated her for the
posting in Kyiv.\1\
On the evening of April 24, Ambassador Yovanovitch
approached a podium in front of gold drapes at the U.S.
Ambassador's residence in Ukraine's capital city. She was
hosting an event to present an award of courage to the father
of Kateryna Handziuk, who was brutally murdered by people who
opposed her efforts to expose and root out public corruption in
Ukraine. In 2018, attackers threw sulfuric acid at Ms.
Handziuk, burning more than 30 percent of her body. After
months of suffering and nearly a dozen surgeries, she died at
the age of 33.\2\ Her attackers have still not been held to
account.\3\
Ambassador Yovanovitch began her speech by noting that Ms.
Handziuk ``was a woman of courage who committed herself to
speaking out against wrongdoing.'' She lamented how Ms.
Handziuk had ``paid the ultimate price for her fearlessness in
fighting against corruption and for her determined efforts to
build a democratic Ukraine.'' She pledged that the United
States would ``continue to stand with those engaged in the
fight for a democratic Ukraine free of corruption, where people
are held accountable'' and commended Ukrainians who ``have
demonstrated to the world that they are willing to fight for a
better system.''\4\
Ambassador Yovanovitch concluded her remarks by holding Ms.
Handziuk's story up as an inspiration to the many Ukrainians
striving to chart a new course for their country in the face of
Russian interference and aggression:
I think we can all see what a remarkable woman
Kateryna Handziuk was, but she continues to inspire all
of us to fight for justice. She was a courageous woman,
who wanted to make Ukraine a better place. And she is
continuing to do so. And I'll just leave you with one
thought that was expressed in Washington at the
ceremony--that courage is contagious. I think we saw
that on the Maidan in 2014, we see that on the front
lines every day in the Donbas, we see it in the work
that Kateryna Handziuk did here in Ukraine. And we see
it in the work of all of you--day in, day out--fighting
for Ukraine and the future of Ukraine.\5\
Ambassador Yovanovitch's evening was interrupted around
10:00 p.m. by a telephone call from the State Department's
headquarters in Washington, D.C.
Director General of the Foreign Service and Director of
Human Resources Ambassador Carol Perez warned that the
Department's leaders had ``great concern'' and ``were worried''
about her. Ambassador Yovanovitch testified that it is ``hard
to know how to react to something like that.'' Ambassador Perez
said she did not know what the concerns were but pledged she
would ``try to find out more'' and would try to call back ``by
midnight.''\6\
Finally, at 1:00 a.m. in Kyiv, Ambassador Perez called
again: The ``concerns'' were from ``up the street'' at the
White House. Ambassador Perez said that Ambassador Yovanovitch
needed to ``come home immediately, get on the next plane to the
U.S.'' She warned that there were concerns about Ambassador
Yovanovitch's ``security.'' When Ambassador Yovanovitch asked
if Ambassador Perez was referring to her physical safety,
Ambassador Perez relayed that she ``hadn't gotten that
impression that it was a physical security issue,'' but that
Ambassador Yovanovitch ``needed to come home right away.''\7\
Ambassador Yovanovitch asked Ambassador Perez specifically
whether this order had anything to do with President Trump's
personal attorney, Rudy Giuliani, who had been making unfounded
allegations against her in the media. Ambassador Perez said she
``didn't know.''\8\ Ambassador Yovanovitch argued that this
order to return to Washington, D.C. was ``extremely irregular''
and that no one had provided her a reason.\9\ In the end,
however, Ambassador Yovanovitch swiftly returned to
Washington.\10\
Rudy Giuliani, on Behalf of President Trump, Led a Smear Campaign to
Oust Ambassador Yovanovitch
Ambassador Yovanovitch's recall followed a concerted smear
campaign by Mr. Giuliani and his associates, promoted by
President Trump. The campaign was largely directed by Mr.
Giuliani, President Trump's personal attorney since early
2018.\11\ A cast of supporting characters, which included
corrupt Ukrainian prosecutors, now-indicted middlemen,
conservative media pundits, and attorneys close to President
Trump, assisted Mr. Giuliani. Among those associates were two
U.S. citizens, Lev Parnas and Igor Fruman. Mr. Parnas and Mr.
Fruman were Florida-based businessmen who were represented by
Mr. Giuliani ``in connection with their personal and business
affairs'' and who also ``assisted Mr. Giuliani in connection
with his representation of President Trump.''\12\ Both Mr.
Parnas and Mr. Fruman were criminally indicted in the Southern
District of New York in October and face charges of conspiring
to violate the federal ban on foreign donations and
contributions in connection with federal and state
elections.\13\ Dr. Fiona Hill, former Deputy Assistant to the
President and Senior Director for Europe and Russia, National
Security Council (NSC), learned from her colleagues that
``these guys were notorious in Florida and that they were bad
news.''\14\
The campaign was also propelled by individuals in Ukraine,
including two prosecutors general. Yuriy Lutsenko served as the
Prosecutor General of Ukraine under former Ukrainian President
Petro Poroshenko--the incumbent who lost to President Zelensky
in April 2019--and previously was the head of President
Poroshenko's faction in the Ukrainian parliament.\15\ Viktor
Shokin was Mr. Lutsenko's predecessor and was removed from
office in 2016.\16\ Mr. Shokin has been described as ``a
typical Ukraine prosecutor who lived a lifestyle far in excess
of his government salary, who never prosecuted anybody known
for having committed a crime,'' and ``covered up crimes that
were known to have been committed.''\17\
In late 2018, Ukrainian officials informed Ambassador
Yovanovitch about Mr. Giuliani's and Mr. Lutsenko's plans to
target her. They told her that Mr. Lutsenko ``was in
communication with Mayor Giuliani'' and that ``they were going
to, you know, do things, including to me.''\18\ Soon
thereafter, Ambassador Yovanovitch learned that ``there had
been a number of meetings'' between Mr. Giuliani and Mr.
Lutsenko, who was looking to ``hurt'' her ``in the U.S.''\19\
The allegations against Ambassador Yovanovitch, which later
surfaced publicly, concerned false claims that she had provided
a ``do-not-prosecute list'' to Mr. Lutsenko and made
disparaging comments about President Trump.\20\
Ambassador Yovanovitch inferred that Mr. Lutsenko was
spreading ``falsehoods'' about her because she was ``effective
at helping Ukrainians who wanted reform, Ukrainians who wanted
to fight against corruption, and . . . that was not in his
interest.''\21\ Anti-corruption reform was not in Mr.
Lutsenko's interest because he himself was known to be
corrupt.\22\ David Holmes, Counselor for Political Affairs at
the U.S. Embassy in Kyiv, Ukraine, explained that:
In mid-March 2019, an Embassy colleague learned from
a Ukrainian contact that Mr. Lutsenko had complained
that Ambassador Yovanovitch had, quote, unquote,
destroyed him, with her refusal to support him until he
followed through with his reform commitments and ceased
using his position for personal gain.\23\
Deputy Assistant Secretary of State George Kent similarly
summarized Mr. Lutsenko's smear campaign against Ambassador
Yovanovitch, which was facilitated by Mr. Giuliani and his
associates, as motivated by revenge:
Over the course of 2018 and 2019, I became
increasingly aware of an effort by Rudy Giuliani and
others, including his associates Lev Parnas and Igor
Fruman, to run a campaign to smear Ambassador
Yovanovitch and other officials at the U.S. Embassy in
Kyiv. The chief agitators on the Ukrainian side of this
effort were some of those same corrupt former
prosecutors I had encountered, particularly Yuriy
Lutsenko and Viktor Shokin. They were now peddling
false information in order to extract revenge against
those who had exposed their misconduct, including U.S.
diplomats, Ukrainian anticorruption officials, and
reform-minded civil society groups in Ukraine.\24\
Mr. Kent succinctly summarized, ``[y]ou can't promote
principled anti-corruption efforts without pissing off corrupt
people.''\25\ By doing her job, Ambassador Yovanovitch drew Mr.
Lutsenko's ire.
In late 2018 and early 2019, Mr. Lutsenko also risked
losing his job as Prosecutor General, and risked possible
criminal investigation, if then-candidate Volodymyr Zelensky
won the presidency. Special Representative for Ukraine
Negotiations, Ambassador Kurt Volker, explained:
As is often the case in Ukraine, a change in power
would mean change in prosecutorial powers as well, and
there have been efforts in the past at prosecuting the
previous government. I think Mr. Lutsenko, in my
estimation, and I said this to Mayor Giuliani when I
met with him, was interested in preserving his own
position. He wanted to avoid being fired by a new
government in order to prevent prosecution of himself,
possible prosecution of himself.\26\
Officials in Ukraine have also speculated that Mr. Lutsenko
cultivated his relationship with Mr. Giuliani in an effort to
hold on to his position.\27\ Ambassador Yovanovitch described
Mr. Lutsenko as an ``opportunist'' who ``will ally himself,
sometimes simultaneously . . . with whatever political or
economic forces he believes will suit his interests best at the
time.''\28\
Mr. Lutsenko promoted debunked conspiracy theories that had
gained traction with President Trump and Mr. Giuliani. Those
debunked conspiracy theories alleged that the Ukrainian
government--not Russia--was behind the hack of the Democratic
National Committee (DNC) server in 2016, and that former Vice
President Biden had petitioned for the removal of Mr. Shokin to
prevent an investigation into Burisma Holdings, a Ukrainian
energy company for which Vice President Biden's son, Hunter,
served as a board member.
Both conspiracy theories served the personal political
interests of President Trump because they would help him in his
campaign for reelection in 2020. The first would serve to
undercut Special Counsel Robert Mueller's investigation, which
was still underway when Mr. Giuliani began his activities in
Ukraine and was denounced as a ``witch hunt'' by the President
and his supporters.\29\ The second would serve to damage
Democratic presidential candidate Vice President Biden.
These conspiracies lacked any basis in fact. The
Intelligence Community, the Senate Select Committee on
Intelligence, both the Majority and Minority of the House
Permanent Select Committee on Intelligence, and the
investigation undertaken by Special Counsel Robert Mueller
concluded that Russia was responsible for interfering in the
2016 election.\30\ President Trump's former Homeland Security
Advisor, Tom Bossert, said that the idea of Ukraine hacking the
DNC server was ``not only a conspiracy theory, it is completely
debunked.''\31\
Russia has pushed the false theory that Ukraine was
involved in the 2016 election to distract from its own
involvement.\32\ Mr. Holmes testified that it was to President
Putin's advantage to promote the theory of Ukrainian
interference in the 2016 U.S. elections for several reasons:
First of all, to deflect from the allegations of
Russian interference. Second of all, to drive a wedge
between the United States and Ukraine which Russia
wants to essentially get back into its sphere of
influence. Thirdly, to besmirch Ukraine and its
political leadership, [and] to degrade and erode
support for Ukraine from other key partners in Europe
and elsewhere.\33\
The allegations that Vice President Biden inappropriately
pressured the Ukrainians to remove Mr. Shokin also are without
merit. Mr. Shokin was widely considered to be ineffective and
corrupt.\34\ When he urged the Ukrainian government to remove
Mr. Shokin, Vice President Biden was advocating for anti-
corruption reform and pursuing official U.S. policy.\35\
Moreover, Mr. Shokin's removal was supported by other
countries, the International Monetary Fund, and the World Bank,
and was ``widely understood internationally to be the right
policy.''\36\ In May 2019, even Mr. Lutsenko himself admitted
that there was no credible evidence of wrongdoing by Hunter
Biden or Vice President Biden.\37\
Nevertheless, Mr. Giuliani engaged with both Mr. Lutsenko
and Mr. Shokin regarding these baseless allegations. According
to documents provided to the State Department Office of
Inspector General, in January 23, 2019, Mr. Giuliani, Mr.
Parnas, and Mr. Fruman participated in a conference call with
Mr. Shokin. According to notes of the call, Mr. Shokin made
allegations about Vice President Biden and Burisma. Mr. Shokin
also claimed that Ambassador Yovanovitch had improperly denied
him a U.S. visa and that she was close to Vice President
Biden.\38\
Mr. Giuliani separately met with Mr. Lutsenko in New
York.\39\ Over the course of two days, on January 25 and 26,
Mr. Giuliani, Mr. Lutsenko, Mr. Parnas, and Mr. Fruman,
reportedly discussed whether Ambassador Yovanovitch was ``loyal
to President Trump,'' as well as investigations into Burisma
and the Bidens.\40\ For his part, Mr. Lutsenko later said he
``understood very well'' that Mr. Giuliani wanted Mr. Lutsenko
to investigate former Vice President Biden and his son, Hunter.
``I have 23 years in politics,'' Mr. Lutsenko said. ``I knew. .
. . I'm a political animal.''\41\
Mr. Giuliani later publicly acknowledged that he was
seeking information from Ukrainians on behalf of his client,
President Trump. On October 23, Mr. Giuliani tweeted
``everything I did was to discover evidence to defend my client
against false charges.''\42\ Then, in a series of tweets on
October 30, Mr. Giuliani stated:
All of the information I obtained came from
interviews conducted as . . . private defense counsel
to POTUS, to defend him against false allegations. I
began obtaining this information while Mueller was
still investigating his witch hunt and a full 5 months
before Biden even announced his run for Pres.\43\
President Trump and Mr. Giuliani's efforts to investigate
alleged Ukrainian interference in the 2016 U.S. election and
Vice President Biden negatively impacted the U.S. Embassy in
Kyiv. Mr. Holmes testified:
Beginning in March 2019, the situation at the Embassy
and in Ukraine changed dramatically. Specifically, the
three priorities of security, economy, and justice and
our support for Ukrainian democratic resistance to
Russian aggression became overshadowed by a political
agenda promoted by former New York City Mayor Rudy
Giuliani and a cadre of officials operating with a
direct channel to the White House.\44\
U.S. national interests in Ukraine were undermined and
subordinated to the personal, political interests of President
Trump.
The Smear Campaign Accelerated in Late March 2019
The smear campaign entered a more public phase in the
United States in late March 2019 with the publication of a
series of opinion pieces in The Hill.
On March 20, 2019, John Solomon penned an opinion piece
quoting a false claim by Mr. Lutsenko that Ambassador
Yovanovitch had given him a do-not-prosecute list.\45\ Mr.
Lutsenko later retracted the claim.\46\ Mr. Solomon's work also
included false allegations that Ambassador Yovanovitch had
``made disparaging statements about President Trump.''\47\
Ambassador Yovanovitch called this allegation ``fictitious,''
and the State Department issued a statement describing the
allegations as a ``fabrication.''\48\
The Committees uncovered evidence of close ties and
frequent contacts between Mr. Solomon and Mr. Parnas, who was
assisting Mr. Giuliani in connection with his representation of
the President. Phone records show that in the 48 hours before
publication of The Hill opinion piece, Mr. Parnas spoke with
Mr. Solomon.\49\ In addition, The Hill piece cited a letter
dated May 9, 2018, from Representative Pete Sessions (R-Texas)
to Secretary Pompeo, in which Rep. Sessions accused Ambassador
Yovanovitch of speaking ``privately and repeatedly about her
disdain for the current administration.''\50\ A federal
criminal indictment alleges that in or about May 2018, Mr.
Parnas sought a congressman's assistance to remove Ambassador
Yovanovitch, at the request of one or more Ukrainian government
officials.\51\
On March 20, 2019, the day The Hill opinion piece was
published, Mr. Parnas again spoke with Mr. Solomon for 11
minutes.\52\ Shortly after that phone call, President Trump
promoted Mr. Solomon's article in a tweet.\53\
Following President Trump's tweet, the public attacks
against Ambassador Yovanovitch were further amplified on social
media and were merged with the conspiracy theories regarding
both Ukrainian interference in the 2016 U.S. election and the
Bidens. On March 22, 2019, Mr. Giuliani tweeted: ``Hillary,
Kerry, and Biden people colluding with Ukrainian operatives to
make money and affect 2016 election.'' He also gave an
interview to Fox News in which he raised Hunter Biden and
called for an investigation.\54\ Then, on March 24, Donald
Trump, Jr. called Ambassador Yovanovitch a ``joker'' on Twitter
and called for her removal.\55\
This campaign reverberated in Ukraine. Mr. Kent testified
that ``starting in mid-March'' Mr. Giuliani was ``almost
unmissable'' during this ``campaign of slander'' against
Ambassador Yovanovitch.\56\ According to Mr. Kent, Mr.
Lutsenko's press spokeswoman retweeted Donald Trump, Jr.'s
tweet attacking the Ambassador.\57\
Concerns About President Trump Kept State Department from Issuing
Statement of Support
At the end of March, as this smear campaign intensified,
Ambassador Yovanovitch sent Under Secretary of State for
Political Affairs David Hale an email identifying her concerns
with the false allegations about her and asking for a strong
statement of support from the State Department. She explained
that, otherwise, ``it makes it hard to be a credible ambassador
in a country.''\58\ Ambassador Hale had been briefed on the
smears in a series of emails from Mr. Kent.\59\ Ambassador Hale
agreed that the allegations were without merit.\60\
Ambassador Yovanovitch was told that State Department
officials were concerned that if they issued a public statement
supporting her, ``it could be undermined'' by ``[t]he
President.''\61\ Ambassador Hale explained that a statement of
support ``would only fuel further negative reaction'' and that
``it might even provoke a public reaction from the President
himself about the Ambassador.''\62\ In short, State Department
officials were concerned ``that the rug would be pulled out
from underneath the State Department.''\63\
Ambassador Yovanovitch turned to the U.S. Ambassador to the
European Union, Gordon Sondland, for advice. According to
Ambassador Yovanovitch, Ambassador Sondland suggested that, in
response to the smear campaign, she make a public statement in
support of President Trump. She said Ambassador Sondland told
her, ``you need to go big or go home'' and ``tweet out there
that you support the President, and that all these are lies and
everything else.''\64\ Ambassador Yovanovitch said she felt
that this ``was advice that I did not see how I could implement
in my role as an Ambassador, and as a Foreign Service
officer.''\65\
Ultimately, Secretary Pompeo refused to issue a public
statement of support for Ambassador Yovanovitch. At the same
time Secretary Pompeo was refusing to issue a statement, he was
communicating with one of the individuals involved in the smear
campaign against her. Records and witness testimony indicate
that Secretary Pompeo spoke to Mr. Giuliani on March 26, 28,
and 29, not long after Mr. Solomon's first article in The
Hill.\66\
The Smear Campaign was a Coordinated Effort by Mr. Giuliani, His
Associates, and One or More Individuals at the White House
In April, Mr. Solomon continued to publish opinion pieces
about Ambassador Yovanovitch and other conspiracy theories
being pursued by Mr. Giuliani on behalf of President Trump. Mr.
Solomon was not working alone. As further described below,
there was a coordinated effort by associates of President Trump
to push these false narratives publicly, as evidenced by public
statements, phone records, and contractual agreements.
On April 1, Mr. Solomon published an opinion piece in The
Hill alleging that Vice President Biden had inappropriately
petitioned for the removal of Mr. Shokin to protect his son,
Hunter.\67\ The opinion piece was entitled, ``Joe Biden's 2020
Ukrainian Nightmare: A Closed Probe is Revived.'' Many of the
allegations in the piece were based on information provided by
Mr. Lutsenko. The following day, Donald Trump, Jr. retweeted
the article.\68\
Phone records obtained by the Committees show frequent
communication between key players during this phase of the
scheme. Between April 1 and April 7, Mr. Parnas exchanged
approximately 16 calls with Mr. Giuliani (longest duration
approximately seven minutes) and approximately 10 calls with
Mr. Solomon (longest duration approximately nine minutes).\69\
On April 7, Mr. Solomon followed up with another opinion
piece. The piece accused Ambassador Yovanovitch of preventing
the issuance of U.S. visas for Ukrainian officials who wished
to travel to the United States to provide purported evidence of
wrongdoing by ``American Democrats and their allies in
Kiev.''\70\ One of those Ukrainian officials allegedly denied a
visa was Kostiantyn Kulyk, a deputy to Mr. Lutesenko. Mr. Kulyk
participated in a ``wide-ranging interview'' with Mr. Solomon
and was extensively quoted.\71\
These Ukrainian officials claimed to have evidence of
wrongdoing about Vice President Biden's efforts in 2015 to
remove Mr. Shokin, Hunter Biden's role as a Burisma board
member, Ukrainian interference in the 2016 U.S. election in
favor of Hillary Clinton, and the misappropriation and transfer
of Ukrainian funds abroad.\72\ The opinion piece also made
clear that Mr. Giuliani was pursuing these very same theories
on behalf of the President:
More recently, President Trump's private attorney
Rudy Giuliani--former mayor and former U.S. attorney in
New York City--learned about some of the allegations
while, on behalf of the Trump legal team, he looked
into Ukrainian involvement in the 2016 election.
According to Mr. Solomon's piece, Mr. Lutsenko was reported to
have sufficient evidence, ``particularly involving Biden, his
family and money spirited out of Ukraine--to warrant a meeting
with U.S. Attorney General William Barr.''\73\
On the same day that Mr. Solomon published these
allegations, Mr. Giuliani appeared on Fox News. Mr. Giuliani
discussed how he learned about alleged Ukrainian interference
in the 2016 U.S. elections and the Bidens' purported misconduct
in Ukraine:
Let me tell you my interest in that. I got
information about three or four months ago that a lot
of the explanations for how this whole phony
investigation started will be in the Ukraine, that
there were a group of people in the Ukraine that were
working to help Hillary Clinton and were colluding
really--[LAUGHTER]--with the Clinton campaign. And it
stems around the ambassador and the embassy, being used
for political purposes. So I began getting some people
that were coming forward and telling me about that. And
then all of a sudden, they revealed the story about
Burisma and Biden's son . . . [Vice President Biden]
bragged about pressuring Ukraine's president to firing
[sic] a top prosecutor who was being criticized on a
whole bunch of areas but was conducting investigation
of this gas company which Hunter Biden served as a
director.\74\
The next day, April 8, Mr. Giuliani tweeted about Mr. Solomon's
opinion piece.\75\
Over the course of the four days following the April 7
article, phone records show contacts between Mr. Giuliani, Mr.
Parnas, Ranking Member Nunes, and Mr. Solomon. Specifically,
Mr. Giuliani and Mr. Parnas were in contact with one another,
as well as with Mr. Solomon.\76\ Phone records also show
contacts on April 10 between Mr. Giuliani and Ranking Member
Nunes, consisting of three short calls in rapid succession,
followed by a nearly three-minute call.\77\ Later that same
day, Mr. Parnas and Mr. Solomon had a four minute, 39 second
call.\78\
Victoria Toensing, a lawyer who, along with her partner
Joseph diGenova, once briefly represented President Trump in
connection with Special Counsel Robert Mueller's
investigation,\79\ also was in phone contact with Mr. Giuliani
and Mr. Parnas at the beginning of April.\80\
Beginning in mid-April, Ms. Toensing signed retainer
agreements between diGenova & Toensing LLP and Mr. Lutsenko,
Mr. Kulyk, and Mr. Shokin--all of whom feature in Mr. Solomon's
opinion pieces.\81\ In these retainer agreements, the firm
agreed to represent Mr. Lutsenko and Mr. Kulyk in meetings with
U.S. officials regarding alleged ``evidence'' of Ukrainian
interference in the 2016 U.S. elections, and to represent Mr.
Shokin ``for the purpose of collecting evidence regarding his
March 2016 firing as Prosecutor General of Ukraine and the role
of Vice President Biden in such firing, and presenting such
evidence to U.S. and foreign authorities.''\82\ On July 25,
President Trump would personally press President Zelensky to
investigate these very same matters.
On April 23, Mr. Parnas had a call with Mr. Solomon, and
multiple phone contacts with Mr. Giuliani.\83\ On that same
day, Mr. Giuliani had a series of short phone calls (ranging
from 11 to 18 seconds) with a phone number associated with the
White House, followed shortly thereafter by an eight minute,
28-second call with an unidentified number that called him.\84\
Approximately half an hour later, Mr. Giuliani had a 48-second
call with a phone number associated with Ambassador John
Bolton, National Security Advisor to the President.\85\
That same day, Mr. Giuliani tweeted:
Hillary is correct the report is the end of the
beginning for the second time . . . NO COLLUSION. Now
Ukraine is investigating Hillary campaign and DNC
conspiracy with foreign operatives including Ukrainian
and others to affect 2016 election. And there's no
Comey to fix the result.\86\
The next day, on the morning of April 24, Mr. Giuliani
appeared on Fox and Friends, lambasting the Mueller
investigation. Mr. Giuliani also promoted the false conspiracy
theories about Ukraine and Vice President Biden:
And I ask you to keep your eye on Ukraine, because in
Ukraine, a lot of the dirty work was done in digging up
the information. American officials were used,
Ukrainian officials were used. That's like collusion
with the Ukrainians. And, or actually in this case,
conspiracy with the Ukrainians. I think you'd get some
interesting information about Joe Biden from Ukraine.
About his son, Hunter Biden. About a company he was on
the board of for years, which may be one of the most
crooked companies in Ukraine. . . . And Biden bragged
about the fact that he got the prosecutor general
fired. The prosecutor general was investigating his son
and then the investigation went south.\87\
Later that day, Mr. Giuliani had three phone calls with a
number associated with OMB, and eight calls with a White House
phone number.\88\ One of the calls with the White House was
four minutes, 53 seconds, and another was three minutes, 15
seconds.
Later that evening, the State Department phoned Ambassador
Yovanovitch and abruptly called her home because of
``concerns''' from ``up the street'' at the White House.\89\
Ambassador Yovanovitch Was Informed That the President ``Lost
Confidence'' in Her
When Ambassador Yovanovitch returned to the United States
at the end of April, Deputy Secretary of State John Sullivan
informed her that she had ``done nothing wrong,'' but ``there
had been a concerted campaign'' against her and that President
Trump had ``lost confidence'' in her leadership.\90\ He also
told her that ``the President no longer wished me to serve as
Ambassador to Ukraine, and that, in fact, the President had
been pushing for my removal since the prior summer.''\91\
Ambassador Philip T. Reeker, Acting Assistant Secretary of
State for the Bureau of European and Eurasian Affairs, offered
a similar assessment. He explained to Ambassador Yovanovitch
that Secretary Pompeo had tried to ``protect'' her, but ``was
no longer able to do that.''\92\
Counselor of the Department of State T. Ulrich Brechbuhl,
who had been handling Ambassador Yovanovitch's recall, refused
to meet with her.\93\
Ambassador Yovanovitch's final day as U.S. Ambassador to
Ukraine was May 20, 2019. This was the same day as President
Zelensky's inauguration, which was attended by Secretary of
Energy Rick Perry, Ambassador Sondland, and Ambassador
Volker.\94\ Rather than joining the official delegation at the
inaugural festivities, she finished packing her personal
belongings and boarded an airplane for her final flight home.
Three days later, President Trump met in the Oval Office with
his hand-picked delegation and gave them the ``directive'' to
``talk with Rudy [Giuliani]'' about Ukraine.\95\
The President Provided No Rationale for the Recall of Ambassador
Yovanovitch
Ambassador Yovanovitch testified that she was never
provided a justification for why President Trump recalled
her.\96\ Only two months earlier, in early March 2019,
Ambassador Yovanovitch had been asked by Ambassador Hale to
extend her assignment as Ambassador to Ukraine until 2020.\97\
Ambassador Hale testified that Ambassador Yovanovitch was
``an exceptional officer doing exceptional work at a very
critical embassy in Kyiv.''\98\ He added, ``I believe that she
should've been able to stay at post and continue to do the
outstanding work that she was doing.''\99\
During her more than three-decade career, Ambassador
Yovanovitch received a number of awards, including: the
Presidential Distinguished Service Award, the Secretary's
Diplomacy in Human Rights Award, the Senior Foreign Service
Performance Award six times, and the State Department's
Superior Honor Award five times.\100\
Career foreign service officer Ambassador P. Michael
McKinley, former Senior Advisor to Secretary Pompeo, testified
that Ambassador Yovanovitch's reputation was ``excellent,
serious, committed.''\101\ Ambassador Reeker described her as
an ``[o]utstanding diplomat,'' ``very precise, very--very
professional,'' ``an excellent mentor,'' and ``a good
leader.''\102\
Ambassador Yovanovitch Strongly Advocated for the U.S. Policy to Combat
Corruption
Throughout the course of her career, and while posted to
Kyiv, Ambassador Yovanovitch was a champion of the United
States' longstanding priority of combatting corruption.
Mr. Kent described U.S. foreign policy in Ukraine as
encompassing the priorities of ``promoting the rule of law,
energy independence, defense sector reform, and the ability to
stand up to Russia.''\103\ Ambassador Yovanovitch testified
that it ``was--and remains--a top U.S. priority to help Ukraine
fight corruption'' because corruption makes Ukraine more
``vulnerable to Russia.''\104\ Additionally, she testified that
an honest and accountable Ukrainian leadership makes a U.S.-
Ukrainian partnership more reliable and more valuable to the
United States.\105\
Mr. Holmes testified that Ambassador Yovanovitch was
successful in implementing anti-corruption reforms in Ukraine
by achieving, for example, ``the hard-fought passage of a law
establishing an independent court to try corruption
cases.''\106\ Mr. Holmes said Ambassador Yovanovitch was ``[a]s
good as anyone known for'' combatting corruption.\107\ The
reforms achieved by Ambassador Yovanovitch helped reduce the
problem faced by many post-Soviet countries of selective
corruption prosecutions to target political opponents.\108\
There was a broad consensus that Ambassador Yovanovitch was
successful in helping Ukraine combat pervasive and endemic
corruption.
The President's Authority Does Not Explain Removal of Ambassador
Yovanovitch
While ambassadors serve at the pleasure of the president,
the manner and circumstances of Ambassador Yovanovitch's
removal were unusual and raise questions of motive.\109\
Ambassador Yovanovitch queried ``why it was necessary to
smear my reputation falsely.''\110\ She found it difficult to
comprehend how individuals ``who apparently felt stymied by our
efforts to promote stated U.S. policy against corruption'' were
``able to successfully conduct a campaign of disinformation
against a sitting ambassador using unofficial back
channels.''\111\
Dr. Hill similarly testified that while the President has
the authority to remove an ambassador, she was concerned
``about the circumstances in which [Ambassador Yovanovitch's]
reputation had been maligned, repeatedly, on television and in
all kinds of exchanges.'' Dr. Hill ``felt that that was
completely unnecessary.''\112\
The Recall of Ambassador Yovanovitch Threatened U.S.-Ukraine Policy
The smear campaign questioning Ambassador Yovanovitch's
loyalty undermined U.S. diplomatic efforts in Ukraine, a key
U.S. partner and a bulwark against Russia's expansion into
Europe. As Ambassador Yovanovitch explained:
Ukrainians were wondering whether I was going to be
leaving, whether we really represented the President,
U.S. policy, et cetera. And so I think it was--you
know, it really kind of cut the ground out from
underneath us.\113\
Summarizing the cumulative impact of the attacks, she
emphasized: ``If our chief representative is kneecapped it
limits our effectiveness to safeguard the vital national
security interests of the United States.''\114\
President Trump's recall of Ambassador Yovanovitch left the
U.S. Embassy in Ukraine without an ambassador at a time of
electoral change in Ukraine and when the Embassy was also
without a deputy chief of mission. Mr. Kent explained:
During the late spring and summer of 2019, I became
alarmed as those efforts bore fruit. They led to the
outer [ouster] of Ambassador Yovanovitch and hampered
U.S. efforts to establish rapport with the new Zelensky
administration in Ukraine.\115\
* * *
One of the unfortunate elements of the timing was
that we were also undergoing a transition in my old job
as deputy chief of mission. The person who replaced me
had already been moved early to be our DCM and Charge
in Sweden, and so we had a temporary acting deputy
chief of mission. So that left the embassy not only
without--the early withdrawal of Ambassador Yovanovitch
left us not only without an Ambassador but without
somebody who had been selected to be deputy chief of
mission.\116\
It was not until late May that Secretary Pompeo asked
Ambassador Bill Taylor, who had previously served as Ambassador
to Ukraine, to return to Kyiv as Charge d'Affaires to lead the
embassy while it awaited a confirmed Ambassador. Ambassador
Taylor did not arrive in Kyiv until June 17, more than a month
after Ambassador Yovanovitch officially left Kyiv.\117\ His
mission to carry out U.S. objectives there would prove
challenging in the face of ongoing efforts by Mr. Giuliani and
others--at the direction of the President--to secure
investigations demanded by the President to help his
reelection.
2. The President Put Giuliani and the Three Amigos in Charge of Ukraine
Issues
After President Trump recalled Ambassador Yovanovitch, his
personal agent, Rudy Giuliani, intensified the President's
campaign to pressure Ukraine's newly-elected president to
interfere in the 2020 U.S. election. President Trump directed
his own political appointees to coordinate with Mr. Giuliani on
Ukraine, while National Security Council officials expressed
alarm over the efforts to pursue a ``domestic political
errand'' for the political benefit of the President. Officials
at the highest levels of the White House and Trump
Administration were aware of the President's scheme.
Overview
On April 21, 2019, the day that Ukrainian President
Volodymyr Zelensky was elected as president of Ukraine,
President Trump called to congratulate him. After a positive
call--in which Mr. Zelensky complimented President Trump and
requested that President Trump attend his inauguration--
President Trump instructed Vice President Mike Pence to lead
the U.S. delegation to the inauguration. However, on May 13--
before the inauguration date was even set--President Trump
instructed Vice President Pence not to attend.
Rudy Giuliani also announced a plan to visit Ukraine in
mid-May 2019--not on official U.S. government business, but
instead to pursue on behalf of his client, President Trump, the
debunked conspiracy theories about alleged Ukrainian
interference in the 2016 election and discredited claims about
the Bidens. After public scrutiny in response to his announced
visit, Mr. Giuliani cancelled his trip and alleged that
President-elect Zelensky was surrounded by ``enemies of the
President.''
Secretary of Energy Rick Perry, Ambassador to the European
Union Gordon Sondland, and Ambassador Kurt Volker, Special
Representative for Ukraine Negotiations, ultimately led the
U.S. delegation to President Zelensky's inauguration. Upon
returning to Washington, D.C., the three U.S. officials--who
dubbed themselves the ``Three Amigos''--debriefed the President
in the Oval Office and encouraged him to engage with President
Zelensky. Instead of accepting their advice, President Trump
complained that Ukraine is ``a terrible place, all corrupt,
terrible people,'' and asserted that Ukraine ``tried to take me
down in 2016.'' The President instructed the ``Three Amigos''
to ``talk to Rudy'' and coordinate with him on Ukraine matters.
They followed the President's orders.
Dr. Fiona Hill, Deputy Assistant to the President and
Senior Director for Europe and Russia at the National Security
Council, would later observe that Ambassador Sondland ``was
being involved in a domestic political errand, and we [the NSC
staff] were being involved in national security foreign policy,
and those two things had just diverged.''
A Political Newcomer Won Ukraine's Presidential Election on an Anti-
Corruption Platform
On April 21, popular comedian and television actor,
Volodymyr Zelensky, won a landslide victory in Ukraine's
presidential election, earning the support of 73 percent of
voters and unseating the incumbent Petro Poroshenko. Mr.
Zelensky, who had no prior political experience, told voters a
week before his victory: ``I'm not a politician. I'm just a
simple person who came to break the system.''\118\ Five years
earlier, in late 2013, Ukrainians had gathered in Kyiv and
rallied against the corrupt government of former President
Viktor Yanukovych, eventually forcing him to flee to the safety
of Vladimir Putin's Russia. Mr. Zelensky's victory in April
2019 reaffirmed the Ukrainian people's strong desire to
overcome an entrenched system of corruption and pursue closer
partnership with the West.\119\
Following the election results, at 4:29 p.m. Eastern Time,
President Trump was connected by telephone to President-elect
Zelensky and congratulated him ``on a job well done . . . a
fantastic election.'' He declared, ``I have no doubt you will
be a fantastic president.''\120\
According to a call record released publicly by the White
House, President Trump did not openly express doubts about the
newly-elected leader.\121\ And contrary to a public readout of
the call originally issued by the White House, President Trump
did not mention corruption in Ukraine, despite the NSC staff
preparing talking points on that topic.\122\ Indeed,
``corruption'' was not mentioned once during the April 21
conversation, according to the official call record.\123\
In the call, President-elect Zelensky lauded President
Trump as ``a great example'' and invited him to visit Ukraine
for his upcoming inauguration--a gesture that President Trump
called ``very nice.''\124\ President Trump told Mr. Zelensky:
I'll look into that, and well--give us the date and,
at a very minimum, we'll have a great representative.
Or more than one from the United States will be with
you on that great day. So, we will have somebody, at a
minimum, at a very, very high level, and they will be
with you.\125\
Mr. Zelensky persisted. ``Words cannot describe our
country,'' he went on, ``so it would be best for you to see it
yourself. So, if you can come, that would be great. So again, I
invite you to come.''\126\ President Trump responded, ``Well, I
agree with you about your country and I look forward to
it.''\127\ In a nod to his past experience working with Ukraine
as a businessman, President Trump added, ``When I owned Miss
Universe . . . Ukraine was always very well represented.''\128\
President Trump then invited Mr. Zelensky to the White
House to meet, saying: ``When you're settled in and ready, I'd
like to invite you to the White House. We'll have a lot of
things to talk about, but we're with you all the way.'' Mr.
Zelensky promptly accepted the President's invitation, adding
that the ``whole team and I are looking forward to that
visit.''\129\
Mr. Zelensky then reiterated his interest in President
Trump attending his inauguration, saying, ``it will be
absolutely fantastic if you could come and be with us.''
President Trump promised to let the Ukrainian leader know
``very soon'' and added that he would see Mr. Zelensky ``very
soon, regardless.''\130\
Shortly after the April 21 call, Jennifer Williams, Special
Advisor to the Vice President for Europe and Russia, learned
that President Trump asked Vice President Pence to attend Mr.
Zelensky's inauguration.\131\ Ms. Williams testified that in a
separate phone call between Vice President Pence and President-
elect Zelensky two days later, ``the Vice President accepted
that invitation from President Zelensky, and looked forward to
being able to attend . . . if the dates worked out.''\132\ Ms.
Williams and her colleagues began planning for the Vice
President's trip to Kyiv.\133\
Rudy Giuliani and his Associates Coordinated Efforts to Secure and
Promote the Investigations with Ukrainian President Zelensky
As previously explained in Chapter 1, Mr. Giuliani, acting
on behalf of President Trump, had for months engaged corrupt
current and former Ukrainian officials, including Ukrainian
Prosecutor General Yuriy Lutsenko. The April election of Mr.
Zelensky, however, raised the possibility that Mr. Lutsenko
might lose his job as Prosecutor General once Mr. Zelensky took
power.
In the immediate aftermath of President-elect Zelensky's
election, Mr. Giuliani continued publicly to project confidence
that Ukraine would deliver on investigations related to the
Bidens. On April 24--before Ambassador Yovanovitch received
calls abruptly summoning her back to Washington--Mr. Giuliani
stated in an interview on Fox and Friends that viewers should,
[K]eep your eye on Ukraine . . . I think you'd get
some interesting information about Joe Biden from
Ukraine. About his son, Hunter Biden. About a company
he was on the board of for years, which may be one of
the most crooked companies in Ukraine.\134\
Behind the scenes, however, Mr. Giuliani was taking steps
to engage the new Ukrainian leader and his aides.
The day before, on April 23, the same day that Vice
President Pence confirmed his plans to attend President-elect
Zelensky's inauguration, Mr. Giuliani dispatched his own
delegation--consisting of Lev Parnas and Igor Fruman--to meet
with Ihor Kolomoisky, a wealthy Ukrainian with ties to
President-elect Zelensky. Instead of going to Kyiv, they booked
tickets to Israel, where they met with Mr. Kolomoisky.\135\ Mr.
Kolomoisky owned Ukraine's largest bank until 2016, when
Ukrainian authorities nationalized the failing financial
institution. Although he denied allegations of committing any
crimes, Mr. Kolomoisky subsequently left Ukraine for Israel,
where he remained until President Zelensky assumed power.\136\
Mr. Kolomoisky confirmed to the New York Times that he met
with Mr. Parnas and Mr. Fruman in late April 2019. He claimed
they sought his assistance in facilitating a meeting between
Mr. Giuliani and President-elect Zelensky, and he told them,
``you've ended up in the wrong place,'' and declined to arrange
the requested meeting.\137\
Mr. Giuliani was not deterred.
During the time surrounding Ambassador Yovanovitch's
recall, Mr. Giuliani and Mr. Parnas connected over a flurry of
calls around a planned trip to Ukraine by Mr. Giuliani, which
he would eventually cancel after growing public scrutiny. As
previously described in Chapter 1, call records obtained by the
Committees show a series of contacts on April 23 and 24 between
Mr. Giuliani, the White House, Mr. Parnas, and John Solomon,
among others.\138\
On April 25, 2019, former Vice President Biden publicly
announced his campaign for the Democratic nomination for
President of the United States and launched his effort to
unseat President Trump in the 2020 election.\139\
That evening, Mr. Solomon published a new opinion piece in
The Hill entitled, ``How the Obama White House Engaged Ukraine
to Give Russia Collusion Narrative an Early Boost.'' Like Mr.
Solomon's previous work, this April 25 piece repeated
unsubstantiated conspiracy theories about alleged Ukrainian
interference in the 2016 U.S. presidential election.\140\
Meanwhile, in Kyiv, David Holmes, Counselor for Political
Affairs at the U.S. Embassy, learned on April 25 that Mr.
Giuliani had reached out to Mr. Zelensky's campaign chair, Ivan
Bakanov, seeking a channel to the newly-elected leader. Mr.
Bakanov told Mr. Holmes ``that he had been contacted by, quote,
someone named Giuliani, who said he was an advisor to the Vice
President, unquote.''\141\ Mr. Holmes clarified that Mr.
Bakanov was ``speaking in Russian'' and that he did not ``know
what he [Bakanov] meant'' by his reference to the Vice
President, ``but that's what he [Bakanov] said.''\142\
Regardless of Mr. Bakanov's apparent confusion as to who Mr.
Giuliani represented, Mr. Holmes explained that by this point
in time, Ukrainian officials seemed to think that Mr. Giuliani
``was a significant person in terms of managing their
relationship with the United States.''\143\
At 7:14 p.m. Eastern Time on April 25, Mr. Giuliani once
again received a call from an unknown ``-1'' number, which
lasted four minutes and 40 seconds.\144\ Minutes later, Mr.
Giuliani held a brief 36 second call with Sean Hannity, a Fox
News opinion host.\145\
On the night of April 25, President Trump called into Mr.
Hannity's prime time Fox News show. In response to a question
about Mr. Solomon's recent publication, President Trump said:
It sounds like big stuff. It sounds very interesting
with Ukraine. I just spoke to the new president a
little while ago, two days ago, and congratulated him
on an incredible race. Incredible run. A big surprise
victory. That's 75 percent of the vote. But that sounds
like big, big stuff. I'm not surprised.\146\
As Mr. Holmes later learned on July 26 from Ambassador
Sondland, President Trump did not care about Ukraine, he cared
about this ``big stuff''--such as the investigation into Vice
President Biden.\147\
In the same Fox News interview, Mr. Hannity asked President
Trump whether America needed to see the purported evidence
possessed by the unnamed Ukrainians noted in Mr. Solomon's
piece. The President replied, invoking Attorney General William
P. Barr:
Well, I think we do. And, frankly, we have a great
new attorney general who has done an unbelievable job
in a very short period of time. And he is very smart
and tough and I would certainly defer to him. I would
imagine he would want to see this. People have been
saying this whole--the concept of Ukraine, they have
been talking about it actually for a long time. You
know that, and I would certainly defer to the attorney
general. And we'll see what he says about it. He calls
them straight. That's one thing I can tell you.\148\
Ukraine's current Prosecutor General Ruslan Ryaboshapka,
who assumed his new position in late August 2019, told the
Financial Times in late November 2019 that Attorney General
Barr had made no contact regarding a potential investigation
into allegations of wrongdoing by former Vice President
Biden.\149\ In an apparent reference to President Trump's
demand for Ukrainian interference in U.S. elections, Mr.
Ryaboshapka stated: ``It's critically important for the west
not to pull us into some conflicts between their ruling elites,
but to continue to support so that we can cross the point of no
return.''\150\
President Trump Promoted False Information About Former Vice President
Joe Biden
In early May, Mr. Giuliani continued his outreach to
President-elect Zelensky and promoted the need for Ukrainian
investigations into former Vice President Biden that served
President Trump's political needs.
On May 2, at 6:21 a.m. Eastern Time, President Trump
retweeted a link to an article in the New York Times, which
assessed that Mr. Giuliani's efforts underscored ``the Trump
campaign's concern about the electoral threat from the former
vice president's presidential campaign'' and noted that ``Mr.
Giuliani's involvement raises questions about whether Mr. Trump
is endorsing an effort to push a foreign government to proceed
with a case that could hurt a political opponent at
home.''\151\
Later that evening, in an interview with Fox News at the
White House, President Trump referenced the false allegations
about the firing of a corrupt former Ukrainian prosecutor,
Viktor Shokin, that Mr. Giuliani had been promoting. He was
asked, ``Should the former vice president explain himself on
his feeling in Ukraine and whether there was a conflict . . .
with his son's business interests?''\152\ President Trump
replied:
I'm hearing it's a major scandal, major problem. Very
bad things happened, and we'll see what that is. They
even have him on tape, talking about it. They have Joe
Biden on tape talking about the prosecutor. And I've
seen that tape. A lot of people are talking about that
tape, but that's up to them. They have to solve that
problem.\153\
``The tape'' President Trump referenced in his interview
was a publicly available video of former Vice President Biden
speaking in January 2018 at an event hosted by the Council on
Foreign Relations (CFR), a nonpartisan think-tank focused on
foreign policy matters. During an interview with the CFR
president, Vice President Biden detailed how the United
States--consistent with the policy of its European allies and
the International Monetary Fund (IMF)--withheld $1 billion in
loan guarantees until the Ukrainian government acceded to
uniform American and international demands to fire the corrupt
prosecutor.\154\
By late 2015, Ukrainians were agitating for Mr. Shokin's
removal, and in March 2016, Ukraine's parliament voted to
dismiss the prosecutor general.\155\ Multiple witnesses
testified that Mr. Shokin's dismissal in 2016 made it more--not
less--likely that Ukrainian authorities might investigate any
allegations or wrongdoing at Burisma or other allegedly corrupt
companies.\156\ Nonetheless, President Trump and his supporters
sought to perpetuate the false narrative that Mr. Shokin should
not have been removed from office and that Vice President Biden
had acted corruptly in carrying out U.S. policy.
Rudy Giuliani Was ``Meddling in an Investigation'' on Behalf of
President Trump
On May 7, 2019, Christopher Wray, the Director of the
Federal Bureau of Investigation, testified before the U.S.
Senate Appropriations Subcommittee on Commerce, Justice,
Science, and Related Agencies regarding foreign interference in
U.S. elections:
My view is that, if any public official or member of
any campaign is contacted by any nation-state or
anybody acting on behalf of a nation-state about
influencing or interfering with our election, then that
is something that the FBI would want to know
about.\157\
Mr. Giuliani nonetheless pressed forward with his plan to
personally convey to President-elect Zelensky, on behalf of his
client President Trump, the importance of opening
investigations that would assist President Trump's reelection
campaign.
On the morning of May 8, Mr. Giuliani called the White
House Switchboard and connected for six minutes and 26 seconds
with someone at the White House.\158\ That same day, Mr.
Giuliani also connected with Mr. Solomon for almost six minutes
and separately with Mr. Parnas. Mr. Parnas connected for one
minute and 13 seconds with Derek Harvey, a member of Ranking
Member Nunes' staff on the Intelligence Committee, on the same
day.\159\
During a meeting that same day, Ukraine Minister of
Interior Arsen Avakov disclosed to Deputy Assistant Secretary
of State George Kent that Mr. Parnas and Mr. Fruman would soon
visit Kyiv ``and that they were coming with their associate,
the Mayor Giuliani.''\160\ Minister Avakov confided to Mr. Kent
that ``Mayor Giuliani had reached out to him and invited him to
come and meet the group of them in Florida'' in February
2019.\161\ Although he declined that offer, Minister Avakov
indicated that he intended to accept their new invitation to
meet in Kyiv.\162\
The next day, on May 9, the New York Times publicized Mr.
Giuliani's plan to visit Ukraine.\163\ Mr. Giuliani confirmed
that he planned to meet with President Zelensky and press the
Ukrainians to pursue investigations that President Trump
promoted only days earlier on Fox News.\164\ The New York Times
described Mr. Giuliani's planned trip as:
[P]art of a monthslong effort by the former New York
mayor and a small group of Trump allies working to
build interest in the Ukrainian inquiries. Their
motivation is to . . . undermine the case against Paul
Manafort, Mr. Trump's imprisoned former campaign
chairman; and potentially to damage Mr. Biden, the
early front-runner for the 2020 Democratic presidential
nomination.\165\
Mr. Giuliani claimed, ``We're not meddling in an election,
we're meddling in an investigation, which we have a right to
do.''\166\
Only a few days after Director Wray's public comments about
foreign interference in U.S. elections, Mr. Giuliani
acknowledged that ``[s]omebody could say it's improper'' to
pressure Ukraine to open investigations that would benefit
President Trump. But, Mr. Giuliani argued:
[T]his isn't foreign policy--I'm asking them to do an
investigation that they're doing already, and that
other people are telling them to stop. And I'm going to
give them reasons why they shouldn't stop it because
that information will be very, very helpful to my
client, and may turn out to be helpful to my
government.\167\
Mr. Giuliani's ``client'' was President Trump, as Mr.
Giuliani repeatedly stated publicly. According to Mr. Giuliani,
the President fully supported putting pressure on Ukraine to
open investigations that would benefit his 2020 reelection
campaign.\168\ Mr. Giuliani emphasized that President Trump
``basically knows what I'm doing, sure, as his lawyer.''\169\
Underscoring his commitment to pressuring Ukraine until it
opened the investigations President Trump promoted on Fox News,
Mr. Giuliani told the Washington Post that he would ``make sure
that nothing scuttles the investigation that I want.''\170\
On May 9, following public revelation of his trip by the
New York Times, Mr. Giuliani connected in quick succession with
Mr. Solomon and then Mr. Parnas for several minutes at a
time.\171\ Mr. Giuliani then made brief connections with the
White House Switchboard and Situation Room several times,
before connecting at 1:43 p.m. Eastern Time with someone at the
White House for over four minutes.\172\ He connected,
separately, thereafter with Mr. Parnas several times in the
afternoon and into the evening.\173\
That evening, Mr. Giuliani tweeted:
If you doubt there is media bias and corruption then
when Democrats conspiring with Ukrainian officials
comes out remember much of the press, except for Fox,
the Hill, and NYT, has suppressed it. If it involved
@realDonaldTrump or his son it would have been front
page news for weeks.\174\
Shortly thereafter, on the night of May 9, he made an
appearance on Fox News and reiterated that his trip to Ukraine
was intended to further the President's personal and political
interests by pressuring the Ukrainian government to investigate
the Bidens:
It's a big story. It's a dramatic story. And I
guarantee you, Joe Biden will not get to election day
without this being investigated, not because I want to
see him investigated. This is collateral to what I was
doing.\175\
The next morning, on May 10, amidst the press coverage of
his trip, Mr. Giuliani tweeted:
Explain to me why Biden shouldn't be investigated if
his son got millions from a Russian loving crooked
Ukrainian oligarch while He was VP and point man for
Ukraine. Ukrainians are investigating and your fellow
Dems are interfering. Election is 17 months away. Let's
answer it now.\176\
He then had another flurry of calls with Mr. Parnas.
Shortly after 2:00 p.m., Eastern Time, Mr. Giuliani also spoke
with Ambassador Volker on the phone.\177\ Ambassador Volker had
learned that Mr. Giuliani intended to travel to Ukraine ``to
pursue these allegations that Lutsenko had made, and he was
going to investigate these things''--specifically, the debunked
story that Vice President Biden had improperly pressured
Ukraine to fire a corrupt prosecutor general, as well as the
Russian-backed conspiracy that the Ukrainians interfered in the
2016 U.S. election.\178\ Ambassador Volker testified that he
had a simple warning for Mr. Giuliani: Prosecutor General
Lutsenko ``is not credible. Don't listen to what he is
saying.''\179\ Call records obtained by the Committees reveal
that their call lasted more than 30 minutes.\180\
Call records also show that around midday on May 10, Mr.
Giuliani began trading aborted calls with Kashyap ``Kash''
Patel, an official at the National Security Council who
previously served on Ranking Member Nunes' staff on the
Intelligence Committee. Mr. Patel successfully connected with
Mr. Giuliani less than an hour after Mr. Giuliani's call with
Ambassador Volker. Beginning at 3:23 p.m., Eastern Time, Mr.
Patel and Mr. Giuliani spoke for over 25 minutes.\181\ Five
minutes after Mr. Patel and Mr. Giuliani disconnected, an
unidentified ``-1'' number connected with Mr. Giuliani for over
17 minutes.\182\ Shortly thereafter, Mr. Giuliani spoke with
Mr. Parnas for approximately 12 minutes.\183\
That same afternoon, President Trump conducted a 15-minute
long phone interview with Politico. In response to a question
about Mr. Giuliani's upcoming visit to Kyiv, the President
replied, ``I have not spoken to him at any great length, but I
will . . . I will speak to him about it before he
leaves.''\184\
Recently, when asked what Mr. Giuliani was doing in Ukraine
on his behalf, the President responded: ``Well, you have to ask
that to Rudy, but Rudy, I don't, I don't even know. I know he
was going to go to Ukraine, and I think he canceled a
trip.''\185\ Prior to that, on October 2, the President
publicly stated; ``And just so you know, we've been
investigating, on a personal basis--through Rudy and others,
lawyers--corruption in the 2016 election.''\186\ On October 4,
the President publicly stated: ``If we feel there's corruption,
like I feel there was in the 2016 campaign--there was
tremendous corruption against me--if we feel there's
corruption, we have a right to go to a foreign country.''\187\
By the evening of May 10, Mr. Giuliani appeared to have
concerns about the incoming Ukrainian President. He appeared on
Fox News and announced, ``I'm not going to go'' to Ukraine
``because I think I'm walking into a group of people that are
enemies of the President.''\188\ In a text message to Politico,
Mr. Giuliani alleged the original offer for a meeting with
President-elect Zelensky was a ``set up'' orchestrated by
``several vocal critics'' of President Trump who were advising
President-elect Zelensky.\189\ Mr. Giuliani declared that
President-elect Zelensky ``is in [the] hands of avowed enemies
of Pres[ident] Trump.''\190\
Like Mr. Giuliani, President Trump would express hostility
toward Ukraine in the days and weeks to come.
Russian President Putin and Hungarian Prime Minister Orban Counseled
President Trump on Ukraine
In early May, Mr. Giuliani was not the only person who
conveyed his skepticism of Ukraine to President Trump. The
President reportedly discussed Ukraine with Russian President
Vladimir Putin when they spoke by phone on May 3. President
Trump posted on Twitter that he ``[h]ad a long and very good
conversation with President Putin of Russia'' and discussed
``even the `Russian Hoax'''--an apparent reference to the
unanimous finding by the U.S. Intelligence Community that
Russia interfered in the 2016 election with the aim of
assisting President Trump's candidacy.\191\ Mr. Kent
subsequently heard from Dr. Hill, the NSC's Senior Director for
Europe and Russia, that President Putin also expressed negative
views about Ukraine to President Trump. He testified that
President Putin's motivation in undercutting President-elect
Zelensky was ``very clear'':
He denies the existence of Ukraine as a nation and a
country, as he told President Bush in Bucharest in
2008. He invaded and occupied 7 percent of Ukraine's
territory and he's led to the death of 13,000
Ukrainians on Ukrainian territory since 2014 as a
result of aggression. So that's his agenda, the agenda
of creating a greater Russia and ensuring that Ukraine
does not survive independently.\192\
On May 13, President Trump met one-on-one for an hour with
Hungarian Prime Minister Viktor Orban. President Trump offered
the leader a warm reception in the Oval Office and claimed
Prime Minister Orban had ``done a tremendous job in so many
different ways. Highly respected. Respected all over
Europe.''\193\ The European Union and many European leaders,
however, have widely condemned Prime Minister Orban for
undermining Hungary's democratic institutions and promoting
anti-Semitism and xenophobia.\194\
Mr. Kent explained to the Committees that Prime Minister
Orban's ``animus towards Ukraine is well-known, documented, and
has lasted now two years.'' Due to a dispute over the rights of
130,000 ethnic Hungarians who live in Ukraine, Mr. Kent noted
that Prime Minister Orban ``blocked all meetings in NATO with
Ukraine at the ministerial level or above,'' undercutting U.S.
and European efforts to support Ukraine in its war against
Russia.\195\ Nonetheless, President Trump told reporters prior
to his meeting with Prime Minister Orban to not ``forget
they're a member of NATO, and a very good member of
NATO.''\196\
Commenting on what Dr. Hill shared with him following the
May 3 call and May 13 meeting, Mr. Kent said he understood
President Trump's discussions about Ukraine with President
Putin and Prime Minister Orban ``as being similar in tone and
approach.'' He explained that ``both leaders'' had
``extensively talked Ukraine down, said it was corrupt, said
Zelensky was in the thrall of oligarchs'' the effect of which
was ``negatively shaping a picture of Ukraine, and even
President Zelensky personally.''\197\ The veteran State
Department diplomat concluded, ``[T]hose two world leaders
[Putin and Orban], along with former Mayor Giuliani, their
communications with President Trump shaped the President's view
of Ukraine and Zelensky, and would account for the change from
a very positive first call on April 21 to his negative
assessment of Ukraine.''\198\
President Trump Instructs Vice President Pence Not to Attend President
Zelensky's Inauguration
On Monday, May 13, at approximately 11:00 a.m. Eastern
Time, Ms. Williams received a call from an assistant to the
Vice President's Chief of Staff.\199\ President Trump, the
assistant relayed, had ``decided that the Vice President would
not attend the inauguration in Ukraine,'' despite the fact that
Vice President Pence previously had accepted the
invitation.\200\ Ms. Williams was never given a reason for the
change in President Trump's decision.\201\
Mr. Holmes later testified that:
[The U.S. Embassy in Kyiv had] gone back and forth
with NSC staff about proposing a list of potential
members of the delegation. It was initially quite a
long list. We had asked who would be the senior [U.S.]
member of that delegation. We were told that Vice
President Pence was likely to be that senior member, it
was not yet fully agreed to. And so we were
anticipating that to be the case. And then the Giuliani
event happened, and then we heard that he was not going
to play that role.\202\
Asked to clarify what he meant by ``the Giuliani event,'' Mr.
Holmes replied, ``the interview basically saying that he had
planned to travel to Ukraine, but he canceled his trip because
there were, quote, unquote, enemies of the U.S. President in
Zelensky's orbit.''\203\
One of the individuals around President-elect Zelensky whom
Mr. Giuliani publicly criticized was the oligarch Mr.
Kolomoisky, who had refused to set up a meeting between Mr.
Giuliani and President Zelensky. On May 18, Mr. Giuliani
complained on Twitter that the oligarch ``returned from a long
exile and immediately threatened and defamed two Americans, Lev
Parnas and Igor Fruman. They are my clients and I have advised
them to press charges.''\204\
Mr. Kolomoisky responded to Mr. Giuliani in a televised
interview and declared, ``Look, there is Giuliani, and two
clowns, Lev Parnas and Igor Fruman, who were engaging in
nonsense. They are Giuliani's clients.'' He added: ``They came
here and told us that they would organize a meeting with
Zelensky. They allegedly struck a deal with [Prosecutor-General
Yuriy] Lutsenko about the fate of this criminal case--Burisma,
[former Vice President] Biden, meddling in the U.S. election
and so on.''\205\ He warned that a ``big scandal may break out,
and not only in Ukraine, but in the United States. That is, it
may turn out to be a clear conspiracy against Biden.''\206\
Despite Ukraine's significance to U.S. national security as
a bulwark against Russian aggression and the renewed
opportunity that President Zelensky's administration offered
for bringing Ukraine closer to the United States and Europe,
President Trump did not ask Secretary of State Michael Pompeo,
Acting Secretary of Defense Patrick Shanahan, or National
Security Advisor John Bolton to lead the delegation to
President Zelensky's inauguration. Instead, according to Mr.
Holmes, the White House ``ultimately whittled back an initial
proposed list for the official delegation to the inauguration
from over a dozen individuals to just five.''\207\
Topping that list was Secretary Perry. Accompanying him
were Ambassador Sondland, U.S. Special Representative for
Ukraine Negotiations Ambassador Volker, and NSC Director for
Ukraine Lt. Col. Alexander Vindman.\208\ Acting Deputy Chief of
Mission (Charge d'Affaires) of U.S. Embassy Kyiv Joseph
Pennington joined the delegation, in place of outgoing U.S.
Ambassador to Ukraine Marie Yovanovitch. U.S. Senator Ron
Johnson also attended the inauguration and joined several
meetings with the presidential delegation. When asked if this
delegation was ``a good group,'' Mr. Holmes replied that it
``was not as senior a delegation as we [the U.S. embassy] might
have expected.''\209\
Secretary Perry, Ambassador Volker, and Ambassador Sondland
subsequently began to refer to themselves as the ``Three
Amigos.'' During the delegation's meeting with President
Zelensky, Mr. Holmes recounted that ``Secretary Perry passed
President Zelensky a list of, quote, `people he trusts' from
whom Zelensky could seek advice on energy sector reform, which
was the topic of subsequent meetings between Secretary Perry
and key Ukrainian energy sector contacts, from which Embassy
personnel were excluded by Secretary Perry's staff.''\210\
Mr. Holmes assessed that the delegation's visit proceeded
smoothly, although ``at one point during a preliminary meeting
of the inaugural delegation, someone in the group wondered
aloud about why Mr. Giuliani was so active in the media with
respect to Ukraine.''\211\ Ambassador Sondland responded:
``Dammit, Rudy. Every time Rudy gets involved he goes and effs
everything up.''\212\ Mr. Holmes added: ``He used the `F'
word.''\213\
By the time of the inauguration, Mr. Holmes assessed that
President Zelensky and the Ukrainians were already starting to
feel pressure to conduct political investigations related to
former Vice President Biden.\214\ Lt. Col. Vindman also was
concerned about the potentially negative consequences of Mr.
Giuliani's political efforts on behalf of President Trump--both
for U.S. national security and also Ukraine's longstanding
history of bipartisan support in the U.S. Congress.\215\
During the U.S. delegation's meeting with President
Zelensky on the margins of the inauguration, Lt. Col. Vindman
was the last person to speak.\216\ He ``offered two pieces of
advice'' to President Zelensky. First, he advised the new
leader, ``be particularly cautious with regards to Russia, and
its desire to provoke Ukraine.''\217\ And second, Lt. Col.
Vindman warned, ``stay out of U.S. domestic . . .
politics.''\218\ Referencing the activities of Mr. Giuliani,
Lt. Col. Vindman explained:
[I]n the March and April timeframe, it became clear
that there were--there were actors in the U.S., public
actors, nongovernmental actors that were promoting the
idea of investigations and 2016 Ukrainian interference.
And it was consistent with U.S. policy to advise any
country, all the countries in my portfolio, any country
in the world, to not participate in U.S. domestic
politics. So I was passing the same advice consistent
with U.S. policy.\219\
U.S. Officials Briefed President Trump About their Positive Impressions
of Ukraine
Ambassadors Volker and Sondland left Kyiv with ``a very
favorable impression'' of the new Ukrainian leader.\220\ They
believed it was important that President Trump ``personally
engage with the President of Ukraine in order to demonstrate
full U.S. support for him,'' including by inviting him to
Washington for a meeting in the Oval Office.\221\ It was agreed
that the delegation would request a meeting with President
Trump and personally convey their advice. They were granted
time with President Trump on May 23.
According to Mr. Kent, the delegation was able to secure
the Oval Office meeting shortly after the return from Kyiv
because of Ambassador Sondland's ``connections'' to Acting
White House Chief of Staff Mick Mulvaney and President
Trump.\222\ Christopher Anderson, Special Advisor to Ambassador
Kurt Volker, also attributed the delegation's ability to
quickly confirm a meeting with President Trump to Ambassador
Sondland's ``connections to the White House.''\223\
At the May 23 meeting, Ambassadors Sondland and Volker were
joined by Secretary Perry, Senator Johnson, and Dr. Charles M.
Kupperman, the Deputy National Security Advisor. Mr. Mulvaney
may have also participated.\224\
Lt. Col. Vindman, who had represented the White House at
President Zelensky's inauguration, did not participate in the
meeting. Dr. Hill directed him not to join, because she had
learned that ``there was some confusion'' from the President
``over who the director for Ukraine is.''\225\ Specifically,
Dr. Hill testified that around the time of the May 23
debriefing in the Oval Office, she ``became aware by chance and
accident'' that President Trump had requested to speak with the
NSC's Ukraine director about unspecified ``materials.''\226\ A
member of the NSC executive secretary's staff stated that in
response to the President's request, ``we might be reaching out
to Kash.''\227\
Dr. Hill testified that she understood the staff to be
referring to Mr. Patel, who then served as a director in the
NSC's directorate of International Organizations and Alliances,
not the directorate of Europe and Russia.\228\ She subsequently
consulted with Dr. Kupperman and sought to clarify if Mr. Patel
``had some special . . . Ambassador Sondland-like
representational role on Ukraine'' that she had not been
informed about, but ``couldn't elicit any information about
that.''\229\ All Dr. Kupperman said was that he would look into
the matter.\230\ Dr. Hill also testified that she never saw or
learned more about the Ukraine-related ``materials'' that the
President believed he had received from Mr. Patel, who
maintained a close relationship with Ranking Member Nunes after
leaving his staff to join the NSC.\231\
President Trump Put the Three Amigos in Charge of the United States'
Ukraine Relationship and Directed Them to ``Talk to Rudy''
About Ukraine
According to witness testimony, the May 23 debriefing with
the President in the Oval Office proved consequential for two
reasons. President Trump authorized Ambassador Sondland,
Secretary Perry, and Ambassador Volker to lead engagement with
President Zelensky's new administration in Ukraine. He
instructed them, however, to talk to and coordinate with his
personal attorney, Mr. Giuliani.
Ambassador Sondland, Ambassador Volker, Secretary Perry,
and Senator Johnson ``took turns'' making their case ``that
this is a new crowd, it's a new President'' in Ukraine who was
``committed to doing the right things,'' including fighting
corruption.\232\ According to Ambassador Sondland, the group
``emphasized the strategic importance of Ukraine'' and the
value to the United States of strengthening the relationship
with President Zelensky.\233\ They recommended that President
Trump once again call President Zelensky and follow through on
his April 21 invitation for President Zelensky to meet with him
in the Oval Office.\234\
President Trump reacted negatively to the positive
assessment of Ukraine. Ambassador Volker recalled that
President Trump said Ukraine is ``a terrible place, all
corrupt, terrible people'' and was ``just dumping on
Ukraine.''\235\ This echoed Mr. Giuliani's public statements
about Ukraine during early May.
According to both Ambassadors Volker and Sondland,
President Trump also alleged, without offering any evidence,
that Ukraine ``tried to take me down'' in the 2016
election.\236\ The President emphasized that he ``didn't
believe'' the delegation's positive assessment of the new
Ukrainian President, and added ``that's not what I hear'' from
Mr. Giuliani.\237\ President Trump said that Mr. Giuliani
``knows all of these things'' and knows that President Zelensky
has ``some bad people around him.''\238\ Rather than committing
to an Oval Office meeting with the Ukrainian leader, President
Trump directed the delegation to ``[t]alk to Rudy, talk to
Rudy.''\239\
Ambassador Sondland testified that the ``Three Amigos'' saw
the writing on the wall and concluded ``that if we did not talk
to Rudy, nothing would move forward on Ukraine.''\240\ He
continued:
[B]ased on the President's direction we were faced
with a choice. We could abandon the goal of a White
House meeting for President Zelensky, which we all
believed was crucial to strengthening U.S.-Ukrainian
ties . . . or we could do as President Trump directed
and talk to Mr. Giuliani to address the President's
concerns. We chose the latter path.\241\
Ambassador Volker reached a similar conclusion. He believed
``that the messages being conveyed by Mr. Giuliani were a
problem, because they were at variance with what our official
message to the President was, and not conveying that positive
assessment that we all had. And so, I thought it was important
to try to step in and fix the problem.''\242\ Ultimately,
however, the ``problem'' posed by the President's instruction
to coordinate regarding Ukraine with his personal attorney
persisted and would become more acute.
After the May 23 meeting, Ambassador Sondland stayed behind
with President Trump and personally confirmed that the Three
Amigos ``would be working on the Ukraine file.''\243\
Multiple witnesses testified about this shift in personnel
in charge of the Ukraine relationship.\244\ Mr. Kent recalled
that, after the Oval Office meeting, Secretary Perry,
Ambassador Sondland, and Ambassador Volker began ``asserting
that, going forward, they would be the drivers of the
relationship with Ukraine.''\245\ Catherine Croft, Special
Advisor to Ambassador Kurt Volker, recalled that ``Sondland,
Volker, and sort of Perry, as a troika, or as the Three Amigos,
had been sort of tasked with Ukraine policy'' by President
Trump.\246\ Under Secretary of State for Political Affairs
David Hale testified about his understanding of the meeting,
``[I]t was clear that the President, from the readout I had
received, the President had tasked that group, members of that
delegation to pursue these objectives: the meeting, and the
policy goals that I outlined earlier. So I was, you know,
knowing I was aware that Ambassador Volker and Ambassador
Sondland would be doing that.''\247\
On a June 10 conference call with the Three Amigos,
``Secretary Perry laid out for Ambassador Bolton the notion
that'' they ``would assist Ambassador Taylor on Ukraine and be
there to support'' him as the U.S.-Ukraine relationship
``move[ed] forward.''\248\
This de facto change in authority was never officially
communicated to other officials, including Dr. Hill, who had
responsibility for Ukraine at the National Security
Council.\249\
U.S. Officials Collaborated with Rudy Giuliani to Advance the
President's Political Agenda
Ambassador Sondland testified that in the weeks and months
after the May 23 Oval Office meeting, ``everyone was in the
loop'' regarding Mr. Giuliani's role in advancing the
President's scheme regarding Ukraine.\250\ The ``Three Amigos''
did as the President ordered and began communicating with Mr.
Giuliani. E-mail messages described to the Committees by
Ambassador Sondland showed that he informed Mr. Mulvaney,
Ambassador Bolton, and Secretaries Pompeo and Perry, as well as
their immediate staffs, of his Ukraine-related efforts on
behalf of the President.\251\
According to Ambassador Sondland, Secretary Perry agreed to
reach out to Mr. Giuliani first ``given their prior
relationship.''\252\ Secretary Perry discussed with Mr.
Giuliani the political concerns that President Trump
articulated in the May 23 meeting.\253\
Dr. Hill testified that Ambassador Volker, Ambassador
Sondland, and Secretary Perry ``gave us every impression that
they were meeting with Rudy Giuliani at this point, and Rudy
Giuliani was also saying on the television, and indeed has said
subsequently, that he was closely coordinating with the State
Department.''\254\ These meetings ran counter to Ambassador
Bolton's repeated declarations that ``nobody should be meeting
with Giuliani''\255\
Like Dr. Hill, Ambassador Bolton also closely tracked Mr.
Giuliani's activities on behalf of the President. According to
Dr. Hill, Ambassador Bolton closely monitored Mr. Giuliani's
public statements and repeatedly referred to Mr. Giuliani as a
``hand grenade that was going to blow everyone up.''\256\
During a meeting on June 13, Ambassador Bolton made clear that
he supported more engagement with Ukraine by senior White House
officials but warned that ``Mr. Giuliani was a key voice with
the President on Ukraine.''\257\ According to Ambassador
Bolton, Mr. Giuliani's influence ``could be an obstacle to
increased White House engagement.''\258\ Ambassador Bolton
joked that ``every time Ukraine is mentioned, Giuliani pops
up.''\259\
Ambassador Bolton also reportedly joined Dr. Hill in
warning Ambassador Volker against contacting Mr. Giuliani.\260\
Dr. Hill was particularly concerned about engagement with Mr.
Giuliani because ``the more you engage with someone who is
spreading untruths, the more validity you give to those
untruths.''\261\ She further testified that she also discussed
Mr. Giuliani's activities with Dr. Kupperman, specifically her
concern that ``Ukraine was going to be played by Giuliani in
some way as part of the campaign.''\262\
On June 18, Ambassador Volker, Acting Assistant Secretary
of State Ambassador Philip T. Reeker, Secretary Perry,
Ambassador Sondland, and State Department Counselor T. Ulrich
Brechbuhl participated in a meeting at the Department of Energy
to follow up to the May 23 Oval Office meeting.\263\ Ambassador
William Taylor, Charge d'Affaires for U.S. Embassy in Kyiv, who
had arrived in Ukraine just the day before, participated by
phone from Kyiv.\264\ The group agreed that a meeting between
President Trump and President Zelensky would be valuable.\265\
However, Ambassadors Volker and Sondland subsequently relayed
to Ambassador Taylor that President Trump ``wanted to hear from
Zelensky before scheduling the meeting in the Oval
Office.''\266\ Ambassador Taylor testified that he did not
understand, at that time, what the President wanted to hear
from his Ukrainian counterpart.\267\ However, Ambassador
Volker's assistant, Mr. Anderson, recalled ``vague
discussions'' about addressing ``Mr. Giuliani's continued calls
for a corruption investigation.''\268\
The quid pro quo--conditioning the Oval Office meeting that
President Trump first offered the Ukrainian leader during their
April 21 call on the Ukrainians' pursuit of investigations that
would benefit President Trump politically--was beginning to
take shape. As Ambassador Sondland testified, the conditions
put on the White House meeting and on Ukraine's continued
engagement with the White House would get ``more insidious''
with the passage of time.\269\
President Trump Invited Foreign Interference in the 2020 Election
As U.S. officials debated how to meet the President's
demands as articulated by Mr. Giuliani, President Trump
publicly disclosed on June 12 in an Oval Office interview with
ABC News anchor George Stephanopoulos that there was ``nothing
wrong with listening'' to a foreign power who offered political
dirt on an opponent. The President added, ``I think I'd want to
hear it.''
Mr. Stephanopoulos then pressed the President directly,
``You want that kind of interference in our elections?'' to
which President Trump replied, ``It's not an interference, they
have information. I think I'd take it.''\270\ President Trump
also made clear that he did not think a foreign power offering
damaging information on an opponent was necessarily wrong, and
said only that he would ``maybe'' contact the FBI ``if I
thought there was something wrong.''\271\
President Trump's willingness to accept foreign
interference in a U.S. election during his interview with Mr.
Stephanopoulos was consistent with tweets and interviews by Mr.
Giuliani at this time. For example, on June 21, Mr. Giuliani
tweeted:
New Pres of Ukraine still silent on investigation of
Ukrainian interference in 2016 election and alleged
Biden bribery of Pres Poroshenko. Time for leadership
and investigate both if you want to purge how Ukraine
was abused by Hillary and Obama people.\272\
On June 18, Dr. Hill met with Ambassador Sondland at the
White House. She ``asked him quite bluntly'' what his role was
in Ukraine. Ambassador Sondland replied that ``he was in charge
of Ukraine.''\273\ Dr. Hill was taken aback and a bit
irritated. She prodded Ambassador Sondland again and asked,
``Who put you in charge of Ukraine?'' Dr. Hill testified:
``And, you know, I'll admit, I was a bit rude. And that's when
he told me the President, which shut me up.''\274\
Dr. Hill tried to impress upon Ambassador Sondland the
``importance of coordinating'' with other national security
officials in the conduct of Ukraine policy, including the NSC
staff and the State Department. Ambassador Sondland
``retorted'' that he was ``coordinating with the President''
and Mr. Mulvaney, ``filling in'' Ambassador Bolton, and talking
to State Department Counselor T. Ulrich Brechbuhl. Ambassador
Sondland asked: ``Who else did he have to inform?''\275\
Dr. Hill stated that, in hindsight, with the benefit of the
sworn testimony by others during the impeachment inquiry and
seeing documents displayed by witnesses, she realized that she
and Ambassador Sondland were working on two fundamentally
different tasks. Dr. Hill testified:
But it struck me when yesterday, when you put up on
the screen Ambassador Sondland's emails and who was on
these emails, and he said, These are the people who
need to know, that he was absolutely right. Because he
was being involved in a domestic political errand, and
we were being involved in national security foreign
policy, and those two things had just diverged. So he
was correct. And I had not put my finger on that at the
moment, but I was irritated with him and angry with him
that he wasn't fully coordinating. And I did say to
him, Ambassador Sondland, Gordon, I think this is all
going to blow up. And here we are.\276\
Reflecting on her June 18 conversation with Ambassador
Sondland, Dr. Hill concluded:
Ambassador Sondland is not wrong that he had been
given a different remit than we had been. And it was at
that moment that I started to realize how those things
had diverged. And I realized, in fact, that I wasn't
really being fair to Ambassador Sondland, because he
was carrying out what he thought he had been instructed
to carry out, and we were doing something that we
thought was just as--or perhaps even more important,
but it wasn't in the same channel.\277\
3. The President Froze Military Assistance to Ukraine
The President froze military assistance to Ukraine against
U.S. national security interests and over the objections of
career experts.
Overview
Since 2014, the United States has maintained a bipartisan
policy of delivering hundreds of millions of dollars in
security assistance to Ukraine each year. These funds benefit
the security of the United States and Europe by ensuring that
Ukraine is equipped to defend itself against Russian
aggression. In 2019, that bipartisan policy was undermined when
President Trump ordered, without justification, a freeze on
military assistance to Ukraine.
For fiscal year 2019, Congress authorized and appropriated
$391 million in security assistance: $250 million through the
Department of Defense's (DOD) Ukraine Security Assistance
Initiative and $141 million through the State Department's
Foreign Military Financing program. In July 2019, however,
President Trump ordered the Office of Management and Budget
(OMB) to put a hold on all $391 million in security assistance
to Ukraine.
The hold surprised experts from DOD and the State
Department. DOD had already announced its intent to deliver
security assistance to Ukraine after certifying that the
country had implemented sufficient anti-corruption reforms, and
the State Department was in the process of notifying Congress
of its intent to deliver foreign military financing to Ukraine.
In a series of interagency meetings, every represented agency
other than OMB (which is headed by Mick Mulvaney, who is also
the President's Acting Chief of Staff) supported the provision
of assistance to Ukraine and objected to President Trump's
hold. Ukraine experts at DOD, the State Department, and the
National Security Council (NSC) argued that it was in the
national security interest of the United States to continue to
support Ukraine. Agency experts also expressed concerns about
the legality of President Trump withholding assistance to
Ukraine that Congress had already appropriated for this express
purpose.
Despite these concerns, OMB devised a plan to implement
President Trump's hold on the assistance. On July 25, 2019, OMB
began using a series of footnotes in funding documents to
notify DOD that the assistance funds were temporarily on hold
to allow for interagency review. Throughout August and
September, OMB continued to use this method and rationale to
maintain the hold, long after the final interagency meeting on
Ukraine assistance occurred on July 31. The hold continued
despite concerns from DOD that the hold would threaten its
ability to fully spend the money before the end of the fiscal
year, as legally required.
On July 25--the same day as President Trump's call with
President Zelensky--officials at Ukraine's embassy emailed DOD
to ask about the status of the hold. By mid-August, officials
at DOD, the State Department, and the NSC received numerous
questions from Ukrainian officials about the hold. President
Trump's hold on the Ukraine assistance was publicly reported on
August 28, 2019.
Security Assistance to Ukraine is Important to U.S. National Security
Interests
The United States has an interest in providing security
assistance to Ukraine to support the country in its
longstanding battle against Russian aggression and to shore it
up as an independent and democratic country that can deter
Kremlin influence in both Ukraine and other European countries.
In early 2014, in what became known as the Revolution of
Dignity, Ukrainian citizens demanded democratic reforms and an
end to corruption, thereby forcing the ouster of pro-Kremlin
Viktor Yanukovych as Ukraine's President. Shortly thereafter,
Russian military forces and their proxies began an incursion
into Ukraine that led to Russia's illegal annexation of the
Crimean Peninsula of Ukraine, as well as the ongoing, Russian-
led armed conflict in the Donbass region of eastern Ukraine.
Approximately 13,000 people have been killed as a result of the
conflict and over 1.4 million people have been displaced.\278\
Former U.S. Ambassador to the United Nations, Nikki Haley,
noted that ``militants in eastern Ukraine report directly to
the Russian military, which arms them, trains them, leads them,
and fights alongside them.''\279\ Similarly, then-Secretary of
Defense James Mattis, during a visit to Ukraine in 2017, chided
Russia, stating that ``despite Russia's denials, we know they
are seeking to redraw international borders by force,
undermining the sovereign and free nations of Europe.''\280\
In response to Russia's aggression, the international
community imposed financial and visa sanctions on Russian
individuals and entities, and committed to providing billions
of dollars in economic, humanitarian, and security assistance
to Ukraine to continue to support its sovereignty and
democratic development.
The European Union is the single largest contributor of
total foreign assistance to Ukraine, having provided =15
billion in grants and loans since 2014.\281\ In addition to
economic and humanitarian assistance, the United States has
contributed a substantial amount of security assistance, mostly
lethal and non-lethal military equipment and training, to
Ukraine. In fact, the United States is the largest contributor
of security assistance to Ukraine. Since 2014, the United
States has delivered approximately $1.5 billion in security
assistance to Ukraine.\282\
Multiple witnesses--including Ambassador William Taylor,
Deputy Assistant Secretary of State George Kent, Lt. Col.
Alexander Vindman, and Deputy Assistant Secretary of Defense
Laura Cooper--testified that this security assistance to
Ukraine is vital to the national security of the United States
and Europe.\283\ As Ambassador Taylor noted:
[R]adar and weapons and sniper rifles, communication,
that saves lives. It makes the Ukrainians more
effective. It might even shorten the war. That's what
our hope is, to show that the Ukrainians can defend
themselves and the Russians, in the end, will say
``Okay, we're going to stop.''\284\
State Department Special Advisor for Ukraine, Catherine
Croft, further emphasized that Ukrainians currently ``face
casualties nearly every day in defense of their own territory
against Russian aggression.''\285\ Ambassador Taylor testified
that American aid is a concrete demonstration of the United
States' ``commitment to resist aggression and defend
freedom.''\286\
Witnesses also testified that it is in the interest of the
United States for Russian aggression to be halted in Ukraine.
In the 20th century, the United States fought two bloody wars
to resist the aggression of a hostile power that tried to
change the borders of Europe by force. As Ambassador Taylor put
it, Russian aggression in Ukraine ``dismissed all the
principles that have kept the peace and contributed to
prosperity in Europe since World War II.''\287\
Timothy Morrison, former Senior Director for Europe and
Russia at the NSC, put the importance of U.S. assistance in
stark terms:
Russia is a failing power, but it is still a
dangerous one. The United States aids Ukraine and her
people so that they can fight Russia over there, and we
don't have to fight Russia here.\288\
Bipartisan Support for Security Assistance to Ukraine
Congressional support for security assistance to Ukraine
has been overwhelming and bipartisan. Congress provided $391
million in security assistance to Ukraine for fiscal year 2019:
$250 million through the DOD-administered Ukraine Security
Assistance Initiative (USAI) and $141 million through the State
Department-administered Foreign Military Financing program.
On September 26, 2018, Congress appropriated $250 million
for the Ukraine Security Assistance Initiative, which is funded
through DOD. The funding law made clear that the funding was
only ``available until September 30, 2019.'' President Trump
signed the bill into law on September 28, 2018.\289\
The Ukraine Security Assistance Initiative--a
Congressionally-mandated program codifying portions of the
European Reassurance Initiative, which was originally launched
by the Obama Administration in 2015--authorizes DOD to provide
``security assistance and intelligence support, including
training, equipment, and logistics support, supplies and
services, to military and other security forces of the
Government of Ukraine.''\290\ Recognizing that strengthening
Ukraine's institutions, in addition to its military, is vital
to helping it break free of Russia's influence, Congress
imposed conditions upon DOD before it could spend a portion of
the security assistance funds. Half of the money was held in
reserve until the Secretary of Defense, in coordination with
the Secretary of State, certified to Congress that Ukraine had
undertaken sufficient anti-corruption reforms, such as in
civilian control of the military and increased transparency and
accountability.\291\
On February 28, 2019, John C. Rood, Under Secretary of
Defense for Policy, notified Congress that DOD intended to
deliver the first half ($125 million) of assistance
appropriated in September 2018 to Ukraine, including ``more
than $50 million of assistance to deliver counter-artillery
radars and defensive lethal assistance.''\292\ Congress cleared
the Congressional notification, which enabled DOD to begin
obligating (spending) funds.\293\
For Ukraine to qualify to receive the remaining $125
million of assistance, Congress required that the Secretary of
Defense, in coordination with the Secretary of State, certify
that the Government of Ukraine had taken substantial
anticorruption reform actions.\294\ Ms. Cooper and others at
DOD conducted a review to evaluate whether Ukraine had met the
required benchmarks.\295\ Ms. Cooper explained that the review
involved ``pulling in all the views of the key experts on
Ukraine defense, and coming up with a consensus view,'' which
was then run ``up the chain in the Defense Department, to
ensure we have approval.''\296\
On May 23, 2019, Under Secretary Rood certified to Congress
that Ukraine had completed the requisite defense institutional
reforms to qualify for the remaining $125 million in funds. He
wrote:
On behalf of the Secretary of Defense, and in
coordination with the Secretary of State, I have
certified that the Government of Ukraine has taken
substantial actions to make defense institutional
reforms for the purposes of decreasing corruption,
increasing accountability, and sustaining improvements
of combat capability enabled by U.S. assistance.\297\
Congress then cleared the related Congressional notification,
which enabled DOD to begin obligating the remaining $125
million in funds.\298\
On June 18, 2019, DOD issued a press release announcing its
intention to provide $250 million in security assistance funds
to Ukraine ``for additional training, equipment, and advisory
efforts to build the capacity of Ukraine's armed forces.'' DOD
announced that the security assistance would provide Ukraine
with sniper rifles, rocket-propelled grenade launchers, and
counter-artillery radars, command and control, electronic
warfare detection and secure communications, military mobility,
night vision, and military medical treatment.\299\
On February 15, 2019, Congress also appropriated $115
million for Ukraine through the State Department-administered
Foreign Military Financing Program (FMF).\300\ The Foreign
Military Financing Program is administered by the State
Department and provides grants or loans to foreign countries to
help them purchase military services or equipment manufactured
by U.S. companies in the United States. In addition to the $115
million appropriated for fiscal year 2019, approximately $26
million carried over from fiscal year 2018.\301\ Thus, the
total amount of foreign military financing available for
Ukraine was approximately $141 million.
Before a country receives foreign military financing, the
State Department must first seek Congressional approval through
a notification to Congress.\302\ The State Department never
sent the required Congressional notification to Congress in the
spring or summer of 2019. As described below, OMB blocked the
notification.\303\
President Trump Had Questions About Ukraine Security Assistance
The day after DOD issued its June 18 press release
announcing $250 million in security assistance funds for
Ukraine, President Trump started asking OMB questions about the
funding for Ukraine. On June 19, Mark Sandy, Deputy Associate
Director for National Security Programs at OMB, was copied on
an email from his boss, Michael Duffey, Associate Director for
National Security Programs at OMB, to Elaine McCusker, Deputy
Under Secretary of Defense (Comptroller) that said that ``the
President had questions about the press report and that he was
seeking additional information.''\304\ Notably, the same day,
President Trump gave an interview on Fox News where he raised
the so-called ``Crowdstrike'' conspiracy theory that Ukraine,
rather than Russia, had interfered in the 2016 election, a line
he would repeat during his July 25 call with the Ukrainian
president.\305\
On June 20, in response to the President's inquiry, Ms.
McCusker responded to President Trump's inquiry by providing
Mr. Sandy information on the security assistance program.\306\
Mr. Sandy shared the document with Mr. Duffey, who had follow-
up questions about the ``financial resources associated with
the program, in particular,'' the ``history of the
appropriations, [and] any more details about the intent of the
program.''\307\ Mr. Sandy said that his staff provided the
relevant information to Mr. Duffey, but he did not know whether
Mr. Duffey shared the information with the White House.\308\
Ms. Cooper also recalled receiving an email inquiring about
DOD-administered Ukraine security assistance a ``few days''
after DOD's June 18, 2019, press release.\309\ The email was
from the Secretary of Defense's Chief of Staff, ``asking for
follow-up on a meeting with the President.'' The email
contained three questions:
And the one question was related to U.S. industry.
Did U.S.--is U.S. industry providing any of this
equipment? The second question that I recall was
related to international contributions. It asked, what
are other countries doing, something to that effect.
And then the third question, I don't recall--I mean,
with any of these I don't recall the exact wording, but
it was something to the effect of, you know, who gave
this money, or who gave this funding?\310\
Like Mr. Sandy, Ms. Cooper believed that the President's
inquiries were spurred by DOD's June 18 press release. She
testified, ``we did get that series of questions just within a
few days after the press release and after that one article
that had the headline.''\311\ Ms. Cooper noted that it was
``relatively unusual'' to receive questions from the President,
and that she and her staff at the DOD responded ``as quickly''
as they could.\312\ According to Ms. Cooper, DOD officials
included in their answers that security assistance funding
``has strong bipartisan support,'' but never received a
response.\313\
President Trump Froze Military Assistance
Despite the fact that DOD experts demonstrated that the
security assistance was crucial for both Ukraine and U.S.
national security and had strong bipartisan support in
Congress, President Trump ordered OMB to freeze the funds in
July.
On July 3, the State Department notified DOD and NSC staff
that OMB was blocking the State Department from transmitting a
Congressional notification for the provision of State
Department-administered security assistance to Ukraine (the
$141 million in foreign military financing).\314\ Because the
State Department is legally required to transmit such a
notification to Congress before spending funds, blocking the
Congressional notification effectively barred the State
Department from spending the funding.\315\ Ms. Williams
testified that she saw the news in a draft email that was being
prepared as part of the nightly update for the National
Security Advisor.\316\ She agreed that the hold came ``out of
the blue'' because it had not been discussed previously by OMB
or the NSC.\317\
On or about July 12, 2019, President Trump directed that a
hold be placed on security assistance funding for Ukraine. That
day, Robert Blair, Assistant to the President and Senior
Advisor to the Chief of Staff, sent an email to Mr. Duffey at
OMB about Ukraine security assistance.\318\ Mr. Sandy, who was
on personal leave at the time but later received a copy of the
email from Mr. Duffey, testified that in the July 12 email, Mr.
Blair communicated ``that the President is directing a hold on
military support funding for Ukraine.''\319\ The email
mentioned no concerns about any other country, security
assistance package, or aid of any sort.\320\
On or about July 15, Mr. Morrison learned from Deputy
National Security Advisor Charles Kupperman ``that it was the
President's direction to hold the assistance.''\321\ On or
about July 17 or 18, 2019, Mr. Duffey and Mr. Blair again
exchanged emails about Ukraine security assistance.\322\ Mr.
Sandy later received a copy of the emails, which showed that
when Mr. Duffey asked Mr. Blair about the reason for the hold,
Mr. Blair provided no explanation and instead said, ``we need
to let the hold take place'' and then ``revisit'' the issue
with the President.\323\
On July 18 or 19, when he returned from two weeks of
personal leave, Mr. Sandy learned for the first time that the
President had placed a hold on Ukraine security assistance from
Mr. Duffey.\324\ According to Mr. Sandy, Mr. Duffey was not
aware of the reason but ``there was certainly a desire to learn
more about the rationale'' for the hold.\325\
Agency Experts Repeatedly Objected to the Hold on Security Assistance
Between July 18 and July 31, 2019, the NSC staff convened a
series of interagency meetings, at which the hold on security
assistance was discussed in varying degrees of detail. Over the
course of these meetings, it became evident that:
the President directed the hold through OMB;
no justification was provided for the hold;
with the exception of OMB, all represented
agencies supported Ukraine security assistance because it was
in the national security interests of the United States; and
there were concerns about the legality of the
hold.
The first interagency meeting was held on July 18 at the
Deputy Assistant Secretary level (i.e., a ``sub-Policy
Coordination Committee''). It was supposed to be a ``routine
Ukraine policy meeting.''\326\ Ambassador Taylor, Lt. Col.
Vindman, Ms. Croft, and Mr. Kent were among the attendees.
Witnesses testified that OMB announced at the meeting that
President Trump had directed a hold on Ukraine security
assistance. Mr. Kent testified that at the meeting, an OMB
staff person announced that Acting White House Chief of Staff
Mick Mulvaney ``at the direction of the President had put a
hold on all security assistance to the Ukraine.''\327\
Ambassador Taylor testified that the ``directive had come from
the President to the Chief of Staff to OMB'' and that when he
learned of the hold on military assistance, he ``realized that
one of the key pillars of our strong support for Ukraine was
threatened.''\328\
According to Ms. Croft, when Mr. Kent raised the issue of
security assistance, it ``blew up the meeting.''\329\
Ambassador Taylor testified that he and others on the call
``sat in astonishment'' when they learned about the hold.\330\
David Holmes, Political Counselor at the U.S. Embassy in Kyiv,
was also on the call. He testified he was ``shocked'' and
thought the hold was ``extremely significant.''\331\ He thought
the hold undermined what he had understood to be longstanding
U.S. policy in Ukraine.\332\
Ms. Croft testified that ``the only reason given was that
the order came at the direction of the President.''\333\ Ms.
Cooper, who did not participate but received a readout of the
meeting, testified that the fact that the hold was announced
without explanation was ``unusual.''\334\ Mr. Kent testified
that ``[t]here was great confusion among the rest of us because
we didn't understand why that had happened.''\335\ He explained
that ``[s]ince there was unanimity that this [security
assistance to Ukraine] was in our national interest, it just
surprised all of us.''\336\
With the exception of OMB, all agencies present at the July
18 meeting advocated for the lifting of the hold.\337\
There was also a lack of clarity as to whether the hold
applied only to the State Department-administered Foreign
Military Financing to Ukraine or whether it also applied to the
DOD-administered Ukraine Security Assistance Initiative
funding.\338\ Ms. Cooper and her colleagues at the DOD were
``concerned'' about the hold.\339\ After the meeting, DOD
sought further clarification from the NSC and State Department
about its impact on the DOD-administered funding.\340\ However,
there was no ``specific guidance for DOD at the time.''\341\
The second interagency meeting to discuss the hold on
Ukraine security assistance was held at the Assistant Secretary
level (i.e., a ``Policy Coordination Committee'') on July 23,
2019.\342\ The meeting was chaired by Mr. Morrison.\343\ Ms.
Cooper, who participated via secure video teleconference,
testified that ``the White House chief of staff ha[d] conveyed
that the President has concerns about Ukraine and Ukraine
security assistance.''\344\ Jennifer Williams, Special Advisor
to Vice President Pence for Europe and Eurasia, who also
attended the meeting on behalf of the Vice President, testified
that the ``OMB representative conveyed that they had been
directed by the Chief of Staff, the White House Chief of Staff,
to continue holding it [the Ukraine security assistance] until
further notice.''\345\ Similar to the July 18 meeting, the July
23 meeting did not provide clarity about whether the
President's hold applied to the DOD-administered funding or
only to the funds administered by the State Department.\346\
Again, no reason was provided for the hold.\347\ Mr. Sandy
did not attend the July 23 meeting as the representative for
OMB, but he received a readout that other agencies expressed
concerns about the hold. Specifically, the concerns related to
the lack of rationale for the hold, the hold's implications on
U.S. assistance and ``overall policy toward Ukraine,'' and
``similar legal questions.''\348\
Mr. Morrison also testified that there was a discussion at
the July 23 meeting about the legality of the hold, and
specifically whether it is ``actually legally permissible for
the President to not allow for the disbursement of the
funding.''\349\ Mr. Morrison recalled that DOD raised concerns
about possible violations of the Impoundment Control Act.\350\
The Impoundment Control Act gives the President the authority
to delay spending, or not spend, funds only if Congress is
notified of those intentions and approves the proposed action
(see below for further discussion of the act).\351\
With the exception of OMB, all agencies present at the July
23rd meeting advocated for the lifting of the hold.\352\
Ambassador Taylor explained that the State Department ``made a
strong statement about the importance of this assistance'' and
that Ms. Cooper, on behalf of DOD, ``made a very strong case
and continued to make a very strong case for the
effectiveness'' of the security assistance.\353\ Lt. Col.
Vindman, who also attended the meeting, testified that there
was agreement that the issue should be elevated to the Agency
deputies ``as quickly as possible to recommend a release of
security assistance.''\354\
The third interagency meeting, a Deputies Small Group
meeting at the Cabinet Deputies level, was held on July 26,
2019. Mr. Duffey was the OMB representative, and Mr. Sandy
prepared Mr. Duffey for the meeting.\355\ Mr. Sandy explained
that he prepared Mr. Duffey to get policy guidance on six
critical issues: (1) the reason for the hold; (2) the extent of
the hold; (3) the duration of the hold; (4) the Congressional
affairs approach; (5) the public affairs approach; and (6) and
the diplomatic approach.\356\ Mr. Sandy testified that on July
26, OMB still did not have an understanding of the reason for
the hold.\357\ According to Mr. Sandy, at that time, there was
no discussion within OMB about the amount of money that was
being contributed to Ukraine by other countries, or whether
that topic was the reason for the President's hold.\358\
Mr. Morrison, Lt. Col. Vindman, Ms. Cooper, Under Secretary
of State for Political Affairs David Hale, and Mr. Duffey
attended the July 26 meeting. At the meeting, OMB stated that
``they had guidance from the President and from Acting Chief of
Staff Mulvaney to freeze the assistance.''\359\ It also was
``stated very clearly'' that the hold applied to both the State
Department and Defense Department security assistance
funds.\360\ Ambassador Hale, as the representative for the
Department of State, ``advocated strongly for resuming the
assistance,'' as did representatives from all agencies other
than OMB.\361\
Mr. Morrison testified that, at the meeting, ``OMB
represented that--and the Chief of Staff's Office was present--
that the President was concerned about corruption in Ukraine,
and he wanted to make sure that Ukraine was doing enough to
manage that corruption.''\362\ Ms. Cooper had a similar
recollection but received no further understanding of what OMB
meant by ``corruption.''\363\ Ms. Cooper recalled that the
deputies did not consider corruption to be a legitimate reason
for the hold because they unanimously agreed that Ukraine was
making sufficient progress on anti-corruption reforms, as had
been certified by DOD on May 23.\364\
President Trump Continued the Hold Despite Agency Concerns About
Legality
Prior to the passage of the Impoundment Control Act,
presidents had frequently impounded--i.e., refused to spend--
Congressionally-appropriated funds to enforce their policy
priorities when they diverged from Congress'. However, most of
these impoundments were small (i.e., no more than a few percent
of the total program budget) or temporary (i.e., funds were
released in time for them to be spent before the end of the
fiscal year) and rooted in policy, rather than political
interests of the President. It was not until President Richard
Nixon that presidential impoundment of funds would prompt
Congress to take action citing constitutional concerns.\365\
Unlike his predecessors, President Nixon undertook
impoundments that were both substantial and, in some cases,
permanent, which raised concerns for Congress over its Article
I powers. In fact, between 1969 and 1972, PresidentNixon
impounded between 15% and 20% of Congressionally-appropriated
funds in various accounts.\366\
To reassert Congressional authority over the budget, in
1973, Congress established the Joint Study Committee on Budget
Control, which held a series of hearings and produced more than
4,600 pages of testimony and reports. The Joint Study
Committee's findings ultimately led to the overwhelmingly
bipartisan passage--over President Nixon's veto--of the
Impoundment Control Act of 1974, one of a series of reform
bills designed to reign in presidential power. Looking back at
that moment in history, Rep. Bill Archer (R-TX), a fiscal
conservative who served 30 years in the House of
Representatives, including as the Chairman of the Ways and
Means Committee, remarked, ``the culture then was that the
president had too much power . . . the president is abusing his
power.''\367\
In addition to establishing the Congressional Budget
Committees and the independent Congressional Budget Office, the
Impoundment Control Act also limits the circumstances under
which a president can legally impound Congressionally-
appropriated funds. According to the Act, although the
President may request authority from Congress to withhold or
permanently cancel the availability of budget authority, such
an action is not allowed without Congressional approval. Any
amount of budget authority proposed to be deferred (i.e.,
temporarily withheld) or rescinded (i.e., permanently withheld)
must be made available for obligation unless Congress, within
45 legislative days, completes action on a bill rescinding all
or part of the amount proposed for rescission.\368\ The
Impoundment Control Act does not permit the withholding of
funds through their date of expiration, which would be a de
facto rescission without Congressional approval.\369\
At the July 26 interagency meeting, senior agency officials
raised serious concerns about the legality of the hold under
the Impoundment Control Act. Ms. Cooper testified:
A: Well, I'm not an expert on the law, but in that
meeting immediately deputies began to raise concerns
about how this could be done in a legal fashion because
there was broad understanding in the meeting that the
funding--the State Department funding related to an
earmark for Ukraine and that the DOD funding was
specific to Ukraine security assistance. So the
comments in the room at the deputies' level reflected a
sense that there was not an understanding of how this
could legally play out. And at that meeting the
deputies agreed to look into the legalities and to look
at what was possible.
Q: Okay. So is it fair to say the deputies thought
the President was not authorized to place a hold on
these funds?
A: They did not use that term, but the expression in
the room that I recall was a sense that there was not
an available mechanism to simply not spend money that
has been in the case of USAI [DOD security assistance]
already notified to Congress.\370\
Lt. Col. Vindman testified that the issue needed to be
``elevated to a PC [Principals Committee] as quickly as
possible to release the hold on security assistance'' so that
the funds could be obligated before the end of the fiscal
year.\371\
A Principals Committee meeting was never convened.\372\
According to Mr. Morrison, National Security Advisor John
Bolton ``believed that it was unnecessary, that he already had
a reasonable idea of where the principals were, and he wanted
to get directly to the President as early as possible in the
most effective way.''\373\ Ambassador Bolton understood that
the principals ``were all supportive of the continued
disbursement of the aid.''\374\ As had been clear since the
very first interagency meeting on July 18, the lifting of the
hold was ``the unanimous position of the entire
interagency.''\375\ At this point, it remained unclear to many
officials why the President continued to hold the funds.
On July 31, 2019, a fourth and final interagency meeting
was held at the Policy Coordination Committee level. Ms. Cooper
attended the meeting on behalf of DOD. According to Ms. Cooper,
the agenda ``was largely focused on just routine Ukraine
business, postelection follow up,'' and ``security assistance
was not actually an explicit agenda item.''\376\ Ms. Cooper
nevertheless raised security assistance and expressed her
understanding, after consulting with DOD counsel, that there
were only two legally available options to implement the hold:
a Presidential rescission notice to Congress (i.e., requesting
that Congress ``take back'' funds it had already appropriated)
or for the Defense Department to do a reprogramming action
(i.e., use Congressionally-appropriated funds for a different
purpose).\377\ In either case, the law requires that the
Executive Branch notify, and seek approval from, Congress
before taking any action.\378\
At the July 31 meeting, Ms. Cooper emphasized to the
participants that because ``there are only two legally
available options and we do not have direction to pursue
either,'' DOD would have to start obligating the funds on or
about August 6.\379\ She explained at her deposition that DOD
would have had to begin obligating the funds by that date or
risk violation of the Impoundment Control Act.\380\
The Administration, however, never proposed a rescission or
reprogramming of funds for Ukraine security assistance and
never notified Congress of its intent to withhold funds.\381\
OMB Used Unusual Process to Implement President's Hold, Skirting Legal
Concerns
OMB plays a critical role in the release of security
assistance funding. The Antideficiency Act requires that,
before any department or agency may spend Congressionally-
appropriated funding, the Director of OMB or his delegates must
``apportion'' (i.e., make available to spend) the funds in
writing.\382\ Through this mechanism, OMB has the ability to
directly impact security assistance funding or funding of any
kind that is appropriated by Congress.
In parallel with the interagency meetings that occurred
during the latter half of July 2019, OMB devised a way to
implement the President's hold on security assistance to
Ukraine, notwithstanding DOD's Congressional notifications of
February 28 and May 23. Over the course of his twelve-year
career at OMB, Mr. Sandy could not recall any other time when a
hold had been placed on security assistance after a
Congressional notification had been sent.\383\
When speaking with Mr. Duffey on or about July 18 or 19,
Mr. Sandy immediately raised concerns about how to implement
the hold without violating the Impoundment Control Act, which
required that the funds be obligated (i.e., spent) before they
expired at the end of the fiscal year, on September 30.\384\ In
light of that legal requirement, the hold would have to be
temporary.\385\ An additional hurdle was the fact that OMB had
already authorized DOD to spend the security assistance funds
DOD administered for fiscal year 2019.\386\ Therefore, when
President Trump directed the hold in July, OMB scrambled to
reverse that prior authorization.
From July 19 through July 24, Mr. Sandy consulted with the
OMB Office of General Counsel as well as Ms. McCusker at DOD on
how to legally implement a hold on the funds.\387\ Mr. Sandy's
staff at OMB also conferred with OMB's Budget Review
Division.\388\ Based on these consultations, OMB decided to
implement the hold through a series of nine funding documents,
known legally as ``apportionments.''\389\ Apportionments
typically are used to convey authority to an agency to spend
funds, not to withhold funds; thus, in order to bar DOD from
spending money, these particular apportionments included
footnotes that would impose the holds while using creative
language to skirt legal concerns. Mr. Sandy testified that
``the purpose of the footnote was to preclude obligation for a
limited period of time but enable planning and casework to
continue.''\390\ He also testified that this use of footnotes
was unusual and that in his 12 years of OMB experience, he
could ``not recall another event like it.''\391\
On July 25, OMB issued the first funding document
implementing the hold. In this document, the relevant footnote
notified DOD that the Ukraine Security Assistance Initiative
funds ``are not available for obligation until August 5, 2019,
to allow for an interagency process to determine the best use
of such funds.'' The footnote also stated that:
Based on OMB's communication with DOD on July 25,
2019, OMB understands from the Department that this
brief pause in obligations will not preclude DOD's
timely execution of the final policy direction. DOD may
continue its planning and casework for the Initiative
during this period.\392\
Mr. Sandy explained that the ``interagency process'''
referenced in the footnote referred to the NSC-led interagency
meetings convened during the latter half of July, and that the
August 5 date provided a ``reasonable timeframe for an
interagency process''' to produce ``clear guidance'' on the
hold.\393\ The August 5 date was determined in consultation
with Mr. Duffey at OMB and Ms. McCusker at DOD.\394\
Mr. Sandy further testified that the second sentence in the
footnote--which states, in relevant part, that ``OMB
understands from the Department that this brief pause in
obligations will not preclude DOD's timely execution of the
final policy direction''--was critical to the implementation of
the hold:
Well, that gets to the heart of that issue about
ensuring that we don't run afoul of the Impoundment
Control Act, which means that you have to allow for the
timely execution. And this reflects my conversation
with--conversations plural with Elaine McCusker that
they can confirm that, during this brief period, they
would not foresee any problem fully executing the
program by the end of the fiscal year.\395\
The sentence, in effect, affirmed that if the hold remained in
place only until August 5, DOD would still have sufficient time
to spend all security assistance funds by September 30, 2019.
President Trump, however, would continue the hold long past
August 5.
Trump Appointee Took Over Signing Authority from Career Budget Expert
Since becoming Deputy Associate Director for National
Security in 2013, Mr. Sandy was responsible for approving
release of the funding for programs within his portfolio,
including the Ukraine Security Assistance Initiative.\396\ Mr.
Sandy approved and signed the July 25 funding document.\397\ On
July 29, however, Mr. Duffey--a political appointee of
President Trump whose prior position had been as Executive
Director of the Republican Party of Wisconsin--told Mr. Sandy--
a career civil servant with decades of experience in this
area--that he would no longer be responsible for approving the
release of funding for Ukraine Security Assistance
Initiative.\398\ Mr. Duffey also revoked the authority for
approving the release of funding for Foreign Military Financing
from Mr. Sandy's colleague at OMB.\399\ Instead, Mr. Duffey
would himself assume authority for the $250 million in DOD-
administered Ukraine security assistance and authority for
approving the release of funding for the $141 million in State
Department-administered Foreign Military Financing to
Ukraine.\400\
Mr. Duffey did not tell Mr. Sandy whether he requested this
change in authority but did say that ``it was in essence a
joint decision reflecting both guidance from the Acting
Director and also his support.''\401\ Over the course of
several days, Mr. Duffey explained to Mr. Sandy and others in
the National Security Division that ``there was interest among
the leadership in tracking the uses of moneys [sic]
closely.''\402\ Mr. Duffey expressed an ``interest in being
more involved in daily operations''' and ``regarded this
responsibility as a way for him to learn more about specific
accounts within his area.''\403\
Mr. Sandy testified that prior to July 29, he had never
heard Mr. Duffey state any interest in approving the release of
funding.\404\ Furthermore, when they learned that Mr. Duffey
was taking on this new responsibility, Mr. Sandy and other
staff relayed their concerns to Mr. Duffey that it was a
substantial workload.\405\ Mr. Sandy also testified that
``people were curious what he thought he would learn from
apportionments about the accounts as opposed to the other, you
know, sources of information.''\406\ Mr. Sandy agreed that
there are more efficient ways of learning about accounts and
programs, and that ``I can think of other ways--other materials
that I personally would find more informative.''\407\
Mr. Sandy was not aware of any prior instance when a
political appointee assumed this kind of funding approval
authority.\408\
After the July 31 interagency meeting at which Ms. Cooper
announced that DOD would have to start obligating the funds on
or about August 6, Mr. Duffey sought clarification.\409\ Ms.
Cooper explained to Mr. Duffey that at a certain point DOD
would not have sufficient time to fully obligate the funds
before they expired at the end of the fiscal year. In response,
Mr. Duffey ``wanted more information on the precise nature of
how long does it take to obligate, and how many cases, and that
sort of thing.''\410\ Ms. Cooper referred Mr. Duffey to the DOD
comptroller and to the Defense Security Cooperation
Agency.\411\ During the month of August, Mr. Duffey and Ms.
McCusker communicated about the implementation of the hold on
the Ukraine Security Assistance Initiative funds.\412\
On August 6 and August 15, Mr. Duffey approved two more
funding documents that contained footnotes with language nearly
identical to the footnote in the July 25 funding document that
initiated the hold; the only difference was that the date funds
would become available for spending was changed from August 5
to August 12.\413\
The August 6 and 15 footnotes, and all subsequent footnotes
through September 10, continued to state that the hold was in
place ``to allow for an interagency process to determine the
best use of such funds,'' even though the final interagency
meeting regarding Ukraine security assistance occurred on July
31.\414\ Not only was there no active interagency process after
July, but Ms. Cooper also was not aware of any review of the
funding conducted by DOD in July, August, or September.\415\ In
fact, Ms. Cooper noted that months before, DOD had completed
its review of whether Ukraine ``had made sufficient progress in
meeting defense reform and anticorruption goals consistent with
the NDAA,'' and certified to Congress in May 2019 that Ukraine
had met the requirements to receive funding.\416\ Similarly,
Mr. Kent testified that the State Department did not conduct,
and was never asked to conduct, a review of the security
assistance funding administered by the State Department.\417\
At the same time that OMB was implementing the President's
hold through the funding footnotes, officials inside OMB were
advocating for release of the funds. On August 7, the National
Security Division, International Affairs Division, and Office
of Legal Counsel of OMB drafted and transmitted a memo on
Ukraine security assistance to OMB Acting Director Vought ``in
anticipation of a principals-level discussion to address the
topic.''\418\ The National Security Division's portion of the
memorandum recommended to remove the hold because (1) the
assistance was consistent with the national security strategy
in terms of supporting a stable, peaceful Europe; (2) the aid
countered Russian aggression; and (3) there was bipartisan
support for the program.\419\ Mr. Duffey approved the
memorandum and agreed with the policy recommendation.\420\
Sometime in mid-August, DOD raised concerns that it might
not be able to fully obligate the Defense Department-
administered funds before the end of the fiscal year.\421\ Ms.
Cooper testified that the Defense Security Cooperation Agency
estimated that $100 million of aid might not be obligated in
time and was at risk.\422\
Because of this, DOD concluded that it could no longer
support OMB's claim in the footnote that ``this brief pause in
obligations will not preclude DOD's timely execution of the
final policy direction.''\423\ As mentioned above, Mr. Sandy
testified that this sentence was at ``the heart of that issue
about ensuring that we don't run afoul of the Impoundment
Control Act.''\424\
As a result of DOD's concerns, all of the subsequent
footnotes issued by OMB during the pendency of the hold--
approved by Mr. Duffey on August 20, 27, and 31, and September
5, 6, and 10--removed the sentence regarding DOD's ability to
fully obligate by the end of the fiscal year.\425\ Each
footnote extended the hold for a period of two to six
days.\426\
Mr. Sandy and his staff ``continued to express concerns [to
Mr. Duffey] about the potential implications vis-a-vis the
Impoundment Control Act,''\427\ and advised Mr. Duffey to
consult with OMB's Office of General Counsel ``on every single
footnote.''\428\ Mr. Sandy was copied on emails with the Office
of General Counsel on these topics.\429\ Although Mr. Sandy
understood that the Office of General Counsel supported the
footnotes, he noted that there were dissenting opinions within
the Office of General Counsel.\430\ Concerns about whether the
Administration was bending, if not breaking, the law by holding
back this vital assistance contributed to at least two OMB
officials resigning, including one attorney in the Office of
General Counsel.\431\ Mr. Sandy testified that the resignation
was motivated in part by concerns about the way OMB was
handling the hold on Ukraine security assistance.\432\
According to Mr. Sandy, the colleague disagreed with the Office
of General Counsel about the application of the Impoundment
Control Act to the hold on Ukraine security assistance.\433\
Nevertheless, at the direction of the President, OMB
continued to implement the hold through September 11.
Senior Officials Failed to Convince President Trump to Release the Aid
in August
Sometime prior to August 16, Ambassador Bolton had a one-
on-one meeting with President Trump about the aid.\434\
According to Mr. Morrison, at that meeting the President ``was
not yet ready to approve the release of the assistance.''\435\
Following the meeting, Ambassador Bolton instructed Mr.
Morrison to look for opportunities to get the principals
together ``to have the direct, in-person conversation with the
President about this topic.''\436\
On or about August 13 or 14, Lt. Col. Vindman was directed
to draft a Presidential Decision Memorandum for Ambassador
Bolton and the other principals to present to President Trump
for a decision on Ukraine security assistance.\437\ The
memorandum, finalized on August 15, recommended that the hold
should be lifted, explained why, and included the consensus
views from the July 26 meeting that the funds should be
released.\438\ Lt. Col. Vindman received conflicting accounts
about whether the memorandum was presented to the
President.\439\
Mr. Morrison, who was Lt. Col. Vindman's supervisor at the
NSC and agreed with the recommendation to lift the hold,
testified that the memorandum was never provided to the
President.\440\ Mr. Morrison explained that Ambassador Bolton
intended to present the memorandum to the President during an
unrelated meeting in Bedminster, New Jersey, on August 15, but
the ``other subject matter of that meeting consumed all the
time.''\441\ However, while at Bedminster, the principals ``all
represented to Ambassador Bolton that they were prepared to
tell the President they endorsed the swift release and
disbursement of the funding.''\442\
Mr. Morrison testified that he attempted to gather the
``the right group of principals'' to meet with the President
but was unable to do so because of scheduling issues.\443\
According to Mr. Morrison, the next possible opportunity was
during a trip to Warsaw, Poland at the beginning of September,
but President Trump did not end up making that trip.\444\
Ms. Cooper recalled receiving an email at the end of August
from Secretary of Defense Esper referencing a meeting or
discussion with the President, and that there was ``no decision
on Ukraine.''\445\
Ukrainian Officials Learned About the Hold in July 2019
Witnesses testified that officials in the Ukraine
government knew of President Trump's hold on security
assistance before it was publicly reported in the press on
August 28, 2019. Ms. Croft testified that after July 18--when
the hold was announced by OMB at the interagency meeting--it
was ``inevitable that it was eventually going to come
out.''\446\
Two individuals from the Ukrainian Embassy in Washington,
D.C., approached Ms. Croft approximately a week apart ``quietly
and in confidence to ask me about an OMB hold on Ukraine
security assistance.''\447\ Ms. Croft could not precisely
recall the dates of these conversations, but testified that she
was ``very surprised at the effectiveness of my Ukrainian
counterparts' diplomatic tradecraft, as in to say they found
out very early on or much earlier than I expected them
to.''\448\
Ms. Croft explained that the Ukrainian officials came to
her quietly because they would not want the hold to become
public:
I think that if this were public in Ukraine it would
be seen as a reversal of our policy and would, just to
say sort of candidly and colloquially, this would be a
really big deal, it would be a really big deal in
Ukraine, and an expression of declining U.S. support
for Ukraine.\449\
DOD also received questions from the Ukraine Embassy about
the status of the military assistance. Ms. Cooper testified
that those occurred on July 25, 2019--the same day as President
Trump's call with President Zelensky:
On July 25th, a member of my staff got a question
from a Ukraine Embassy contact asking what was going on
with Ukraine security assistance, because at that time,
we did not know what the guidance was on USAI [DOD-
administered funds]. The OMB notice of apportionment
arrived that day, but this staff member did not find
out about it until later. I was informed that the staff
member told the Ukrainian official that we were moving
forward on USAI, but recommended that the Ukraine
Embassy check in with State regarding the FMF [State
Department-administered funds].\450\
On July 25, Ms. Cooper's staff received two emails from the
State Department revealing that the Ukrainian Embassy was
``asking about security assistance'' and that ``the Hill knows
about the FMF situation to an extent, and so does the Ukrainian
Embassy.''\451\
One of Ms. Cooper's staff members reported that sometime
during the week of August 6, a Ukrainian Embassy officer stated
that ``a Ukrainian official might raise concerns about security
assistance in an upcoming meeting,'' but that the issue was
``not, in fact, raised.''\452\ Ms. Cooper's staff further
reported that Ukrainian officials were aware of the hold on
security assistance in August.\453\
Lt. Col. Vindman testified that, by mid-August, he too was
getting questions from Ukrainians about the status of the hold
on security assistance:
So to the best of my knowledge, the Ukrainians, first
of all, are in general pretty sophisticated, they have
their network of, you know, Ukrainian interest groups
and so forth. They have bipartisan support in Congress.
And certainly there are--it was no secret, at least
within government and official channels, that security
assistance was on hold. And to the best of my
recollection, I believe there were some of these light
inquires in the mid-August timeframe.\454\
While numerous individuals, including Ukrainians, were
aware of the hold, it did not become publicly known until a
Politico report on August 28, 2019.\455\
4. The President's Meeting with the Ukrainian President Was Conditioned
on An Announcement of Investigations
President Trump demanded the public announcement by
President Zelensky of investigations into President Trump's
political rival and alleged Ukrainian interference in the 2016
U.S. election in exchange for an Oval Office meeting. The
President's representatives made that quid pro quo clear to
Ukrainian officials.
Overview
After ordering the hold on security assistance to Ukraine
against the unanimous advice of the relevant U.S. government
agencies, President Trump used his hand-picked representatives
to demand that Ukrainian leaders publicly announce
investigations into his political rival, former Vice President
Joe Biden, and into the debunked conspiracy theory that
Ukraine, not Russia, interfered in the 2016 U.S. election.
President Trump, through his agents, made clear that his demand
needed to be met before a coveted White House meeting with
Ukrainian President Volodymyr Zelensky would be scheduled. A
face-to-face meeting with President Trump in the Oval Office
would have conferred on the new Ukrainian leader much-sought
prestige and would have signaled to Russia that Ukraine could
continue to count on the support of the President of the United
States, which was particularly important as Russia continued to
wage war in eastern Ukraine.
To date, the White House meeting for President Zelensky has
not occurred. Following the May 23 meeting in the Oval Office,
President Trump's hand-picked representatives--the so-called
``Three Amigos''--worked with the President's personal
attorney, Rudy Giuliani, to pressure Ukrainian leaders to
announce publicly investigations that would benefit the
President's reelection campaign. Testimony of multiple
witnesses and contemporaneous text messages exchanged between
and among President Trump's representatives confirm that the
White House meeting and later the release of security
assistance for Ukraine--was conditioned on Ukraine acquiescing
to the President's demands.
In the weeks leading up to the July 25 call between
President Trump and President Zelensky, President Trump's
representatives repeatedly relayed the message of
conditionality to Ukrainian government officials--including to
President Zelensky himself--in meetings in Kyiv, Toronto, and
Washington, D.C. President Zelensky and his advisors struggled
to navigate these demands, recognizing that President Trump's
desire that Ukraine announce these political investigations
threatened to render Ukraine a ``pawn'' in U.S. domestic
reelection politics.
An Oval Office Meeting for President Zelensky Was Important to Ukraine
and U.S. National Security
A face-to-face meeting with the President of the United
States in the Oval Office was critical to President Zelensky as
the newly-elected Ukrainian leader sought U.S. support for his
ambitious anti-corruption agenda and to repel Russian
aggression. A White House meeting was also important for U.S.
national security because it would have served to bolster
Ukraine's negotiating position in peace talks with Russia. It
also would have supported Ukraine as a bulwark against further
Russian advances in Europe.
Multiple witnesses unanimously attested to the importance
of a White House meeting for Ukraine and the United States. For
example, David Holmes, the Political Counselor at the U.S.
Embassy in Kyiv, testified that a White House meeting was
``critical'' to President Zelensky's ability to ``encourage
Russian President Putin to take seriously President Zelensky's
peace efforts.''\456\ Likewise, Deputy Assistant Secretary
George Kent explained that a White House meeting was ``very
important'' for Ukrainians to demonstrate the strength of their
relationship with ``Ukraine's strongest supporter.'' He also
said that it ``makes sense'' for the United States to meet with
the Ukrainians as they were on ``the front lines of Russian
malign influence and aggression.''\457\
Dr. Fiona Hill, Deputy Assistant to the President and
Senior Director of Europe and Russia at the NSC, explained that
a White House meeting would supply the new Ukrainian Government
with ``the legitimacy that it needed, especially vis-a-vis the
Russians,''--and that the Ukrainians viewed a White House
meeting as ``a recognition of their legitimacy as a sovereign
state.''\458\ Lt. Col. Alexander Vindman, the NSC Director for
Ukraine, testified that a White House meeting would provide a
``show of support'' from ``the most powerful country in the
world and Ukraine's most significant benefactor,'' which would
help the Ukrainian President ``establish his bona fides''' and
``implement his agenda.''\459\
Ambassador Kurt Volker, Special Representative for Ukraine
Negotiations, also recognized that it was ``a tremendous symbol
of support'' to have President Zelensky visit the White
House.\460\ He explained that a meeting ``enhances [President
Zelensky's] stature, that he is accepted, that he is seen at
the highest level. The imagery you get from being at the White
House is the best in the world, in terms of how it enhances
someone's image.''\461\
President Trump ``Wanted to Hear from Zelensky'' Before Scheduling Oval
Office Meeting
Ambassador William B. Taylor, Jr. arrived in Ukraine as the
new Charge d'Affaires at the U.S. Embassy in Kyiv on June 17,
2019. After arriving, Ambassador Taylor worked to secure an
Oval Office meeting between President Trump and President
Zelensky. This was ``an agreed-upon goal'' of policymakers in
both Ukraine and the United States.\462\
Ambassador Taylor worked with Ambassador Volker and
Ambassador to the European Union Gordon Sondland--two of the
Three Amigos--to try to schedule this meeting. Just days after
beginning his new position, Ambassador Taylor learned that
President Trump ``wanted to hear from Zelensky'' before
scheduling the Oval Office meeting, but Ambassador Taylor did
not understand what that meant at the time.\463\ On June 27,
Ambassador Sondland informed Ambassador Taylor that President
Zelensky needed to ``make clear'' to President Trump that he,
President Zelensky, was not ``standing in the way of
`investigations.'''\464\ Ambassador Taylor relayed this
conversation to Mr. Holmes, who testified that he understood
``investigations'' in that context to mean the ``Burisma-Biden
investigations that Mr. Giuliani and his associates had been
speaking about'' publicly.\465\
On June 28, Secretary of Energy Rick Perry--the third of
the Three Amigos--and Ambassadors Sondland, Volker, and Taylor
participated in a conference call to prepare for a discussion
later that day with President Zelensky. During this preparatory
call, Ambassador Volker explained that he planned to be
``explicit'' with President Zelensky in an upcoming one-on-one
meeting in Toronto, Canada. Specifically, Ambassador Volker
intended to inform President Zelensky that President Trump
would require Ukraine to address ``rule of law, transparency,
but also, specifically, cooperation on investigations to get to
the bottom of things'' in order to ``get the meeting in the
White House.''\466\
For the subsequent call with President Zelensky on June 28,
Ambassador Sondland sought to limit the number of U.S.
government personnel listening in. According to Ambassador
Taylor, Ambassador Sondland stated that he did not want to
include ``most of the regular interagency participants'' and
that ``he wanted to make sure no one was transcribing or
monitoring'' the call when President Zelensky was patched in.
Ambassador Taylor testified that he considered Ambassador
Sondland's requests to be ``odd.''\467\ During that call,
President Zelensky and the U.S. officials discussed energy
policy and the conflict with Russia in eastern Ukraine. The
Ukrainian president also noted that he looked forward to the
White House visit that President Trump had offered in a letter
dated May 29.\468\
The exclusion of State Department staff and notetakers from
the June 28 call was an early indication to Ambassador Taylor
that separate channels of diplomacy related to Ukraine policy--
an official channel and an irregular channel--were
``diverging.'' Ambassador Taylor testified:
This suggested to me that there were the two
channels. This suggested to me that the normal channel,
where you would have staff on the phone call, was being
cut out, and the other channel, of people who were
working, again, toward a goal which I supported, which
was having a meeting to further U.S.-Ukrainian
relations, I supported, but that irregular channel
didn't have a respect for or an interest in having the
normal staff participate in this call with the head of
state.\469\
Given Ambassador Sondland's efforts to exclude staff on the
June 28 call with President Zelensky, Ambassador Taylor asked
Ambassadors Sondland and Volker by text message how they
planned to handle informing other U.S. officials about the
contents of the call. Ambassador Volker responded: ``I think we
just keep it among ourselves to try to build working
relationship and just get the d*** date for the meeting!''\470\
Ambassador Sondland then texted: ``Agree with KV. Very close
hold.''\471\ Nevertheless, Ambassador Taylor informed Mr. Kent
about the call and wrote a memo for the record dated June 30
that summarized the conversation with President Zelensky.\472\
Ambassador Volker Pressed ``Investigations'' with President Zelensky in
Toronto
On July 2, Ambassador Volker met with President Zelensky
and his chief of staff on the sidelines of the Ukraine Reform
Conference in Toronto. As he later texted to Ambassador Taylor,
Ambassador Volker ``pulled the two of them aside at the end and
explained the Giuliani factor.''\473\ Ambassador Volker
clarified that by ``the Giuliani factor,'' he meant ``a
negative narrative about Ukraine'' that was ``being amplified
by Rudy Giuliani'' and was unfavorably impacting ``Ukraine's
image in the United States and our ability to advance the
bilateral relationship.''\474\ Ambassador Volker later informed
Ukraine's incoming Minister of Foreign Affairs, Vadym
Prystaiko, about his pull-aside with President Zelensky in
Toronto via text message: ``I talked to him privately about
Giuliani and impact on president T[rump].''\475\
On July 3, the day after his pull-aside with President
Zelensky in Toronto, Ambassador Volker sent a message to
Ambassador Taylor emphasizing that ``The key thing is to tee up
a phone call w potus and then get visit nailed down.''\476\
Ambassador Volker told Ambassador Taylor that during the
Toronto conference, he counseled the Ukrainian president about
how he could ``prepare for the phone call with President
Trump.'' Specifically, Ambassador Volker told the Ukrainian
leader that President Trump ``would like to hear about the
investigations.''\477\ In his public testimony, Ambassador
Volker confirmed that he mentioned ``investigations'' to
President Zelensky in Toronto, explaining that he was
``thinking of Burisma and 2016'' in raising the subject, and
that his ``assumption'' was that Ukrainian officials also
understood his reference to ``investigations'' to be ``Burisma/
2016.''\478\
Ambassador Volker's efforts to prepare President Zelensky
for his phone call with President Trump appear to have borne
fruit. As discussed further in Chapter 5, during the July 25
call, President Zelensky expressed his openness to pursuing
investigations into President Trump's political rival, former
Vice President Biden, and the conspiracy theory that Ukraine,
rather than Russia, interfered in the 2016 U.S. election.
President Zelensky also specifically referenced ``Burisma''
during the call.
Ambassadors Volker and Sondland Worked to Get Mr. Giuliani What He
Needed
According to Ambassador Sondland, President Zelensky's
commitment to make a public announcement about investigations
into Burisma and the 2016 election was a ``prerequisite[]'' for
the White House meeting.\479\ In fact, Ambassador Sondland
testified that the announcement of the investigations--and not
the investigations themselves--was the price President Trump
sought in exchange for a White House meeting with Ukrainian
President Zelensky:
Q: But he had to get those two investigations if that
official act was going to take place, correct?
A: He had to announce the investigations. He didn't
actually have to do them, as I understood it.
Q: Okay. President Zelensky had to announce the two
investigations the President wanted, make a public
announcement, correct?
A: Correct.\480\
Ambassadors Sondland and Volker understood that they needed
to work with Mr. Giuliani, who was publicly pressing for the
announcement of investigations that would benefit President
Trump politically. As discussed in Chapter 2, Ambassador
Sondland testified that the key to overcoming President Trump's
skepticism about Ukraine was satisfying the President's
personal attorney. Sondland said, ``Nonetheless, based on the
President's direction, we were faced with a choice: We could
abandon the efforts to schedule the White House phone call and
a White House visit'' or ``do as President Trump had directed
and `talk with Rudy''' because ``it was the only constructive
path open to us.''\481\
Ambassador Volker discussed his intention to contact Mr.
Giuliani with Mr. Kent. Ambassador Volker explained that he
intended to reach out to Mr. Giuliani because it was clear that
the former mayor ``had influence'' with President Trump ``in
terms of the way the President thought of Ukraine.''\482\
Ukrainian officials also understood the importance of working
through Mr. Giuliani, something that was underscored by his
successful effort to smear and remove Ambassador Marie
Yovanovitch from Kyiv in late April.\483\
In response to Ambassador Volker's stated intention to
reach out to Mr. Giuliani, Mr. Kent raised concerns about Mr.
Giuliani's ``track record,'' including ``asking for a visa for
a corrupt former prosecutor,'' attacking Ambassador
Yovanovitch, and ``tweeting that the new President needs to
investigate Biden and the 2016 campaign.'' Mr. Kent also warned
Ambassador Volker that ``asking another country to investigate
a prosecution for political reasons undermines our advocacy of
the rule of law.''\484\
On July 10, Ambassador Taylor met with Ukrainian officials
in Kyiv, before their Ukrainian colleagues were scheduled to
meet with National Security Advisor John Bolton at the White
House later that day. At the meeting in Kyiv, the Ukrainian
officials expressed that they were ``very concerned'' because
they had heard from former Prosecutor General Yuriy Lutsenko,
who had learned from Mr. Giuliani, that President Trump had
decided not to meet with President Zelensky.\485\
Ambassador Taylor texted Ambassador Volker to explain the
situation and advised that he had also informed T. Ulrich
Brechbuhl, Counselor of the Department of State:
Volker: Good grief. Please tell Vadym to let the
official USG representatives speak for the U.S.
lutsenko has his own self-Interest here . . .
Taylor: Exactly what I told them.
Taylor: And I said that RG is a private citizen.
Taylor: I briefed Ulrich this afternoon on this.\486\
Despite his text message to Ambassador Taylor that official
U.S. government representatives should be allowed to ``speak
for the U.S.,'' and notwithstanding Mr. Kent's warnings about
engaging with Mr. Giuliani, Ambassador Volker almost
immediately reached out to Mr. Giuliani. Four minutes after
sending the text message above, Ambassador Volker texted Mr.
Giuliani to request a meeting to ``update you on my
conversations about Ukraine.'' He told Mr. Giuliani that he
believed he had ``an opportunity to get you what you
need.''\487\
One hour later, around 9:00 a.m. Eastern Time, Ambassador
Volker met Ukrainian presidential aide Andriy Yermak for coffee
at the Trump Hotel before they traveled down Pennsylvania
Avenue to their afternoon meetings at the White House.\488\
Over coffee, Mr. Yermak asked Ambassador Volker to connect him
to Mr. Giuliani, thus further demonstrating the Ukrainians'
understanding that satisfying Mr. Giuliani's demands was a key
to getting what they wanted from President Trump, namely the
Oval Office meeting.\489\
July 10 White House Meetings: Ambassador Sondland Explicitly
Communicated the ``Prerequisite of Investigations'' to
Ukrainians
On July 10, during two separate meetings at the White
House, Ambassador Sondland informed senior Ukrainian officials
that there was a ``prerequisite of investigations'' before an
Oval Office meeting between President Trump and President
Zelensky would be scheduled.\490\
The first meeting took place in Ambassador Bolton's office.
NSC officials, including Ambassador Bolton's staff responsible
for Ukraine--Dr. Hill and Lt. Col. Vindman--attended, as did
the Three Amigos: Secretary Perry, Ambassador Sondland, and
Ambassador Volker. The Ukrainian delegation included Mr.
Yermak, a senior aide to President Zelensky, and Oleksandr
``Sasha'' Danyliuk, the incoming Ukrainian National Security
Advisor.\491\ The purpose of the meeting was twofold. The
Ukrainians were seeking advice and assistance from Ambassador
Bolton about how to ``revamp'' the Ukrainian National Security
Council, and they were also ``very anxious to set up a meeting,
a first meeting between President Zelensky and our
President.''\492\
Near the end of the meeting, the Ukrainian officials raised
the scheduling of the Oval Office meeting for President
Zelensky. According to Dr. Hill, Ambassador Sondland, who is
``a fairly big guy, kind of leaned over'' and then ``blurted
out: Well, we have an agreement with the [White House] Chief of
Staff for a meeting if these investigations in the energy
sector start.'' Dr. Hill described that others in the room
looked up from their notes, thinking the comment was ``somewhat
odd.'' Ambassador Bolton ``immediately stiffened'' and ended
the meeting. Dr. Hill recounted that Ambassador Bolton was
polite but was ``very abrupt. I mean, he looked at the clock as
if he had, you know, suddenly another meeting and his time was
up, but it was obvious he ended the meeting,'' she added.\493\
Lt. Col. Vindman similarly testified that the meeting in
Ambassador Bolton's office ``proceeded well'' until Ukrainian
officials raised the meeting between President Trump and
President Zelensky. The Ukrainians stated that they considered
the Oval Office meeting to be ``critically important in order
to solidify the support for their most important international
partner.'' When Ambassador Sondland mentioned Ukraine
``delivering specific investigations in order to secure the
meeting with the President,'' Ambassador Bolton cut the meeting
short.\494\
Although Ambassador Volker did not recall any mention of
``investigations'' during the July 10 meeting at his
deposition,\495\ he later testified at his public hearing, ``As
I remember, the meeting [in Ambassador Bolton's office] was
essentially over when Ambassador Sondland made a general
comment about investigations. I think all of us thought it was
inappropriate'' and ``not what we should be talking
about.''\496\
After Ambassador Bolton ended the meeting in his office,
Ambassador Sondland ``went out into the office in front of
Ambassador Bolton'' and made ``unusual'' arrangements for the
Ukrainians, Ambassador Volker, Secretary Perry, and others to
go to a second meeting in the Ward Room of the White House,
located near the secure spaces of the White House Situation
Room. As Dr. Hill described it, the purpose of the Ward Room
meeting was ``to talk to the Ukrainians about next steps''
regarding the Oval Office meeting for President Zelensky.\497\
As Dr. Hill was leaving Ambassador Bolton's office, he pulled
her aside and directed her to attend the Ward Room meeting to
``find out what they're talking about and come back'' and
report to him. Dr. Hill followed his instruction.\498\
During the Ward Room meeting, which occurred after a brief
photo opportunity outside the West Wing, Ambassador Sondland
was more explicit in pressing the Ukrainians to undertake the
investigations in order to secure an Oval Office meeting for
President Zelensky. Lt. Col. Vindman testified that when the
group entered the Ward Room, Ambassador Sondland began to
``review what the deliverable would be in order to get the
meeting,'' and that ``to the best of my recollection, he did
specifically say `investigation of the Bidens.''' Lt. Col.
Vindman said the request ``was explicit. There was no
ambiguity'' and that Ambassador Sondland also mentioned
``Burisma.''\499\
Dr. Hill entered the Ward Room as the discussion was
underway. She testified that ``Ambassador Sondland, in front of
the Ukrainians, as I came in, was talking about how he had an
agreement with Chief of Staff Mulvaney for a meeting with the
Ukrainians if they were going to go forward with
investigations. And my director for Ukraine [Lt. Col. Vindman]
was looking completely alarmed.''\500\ Dr. Hill recalled that
Ambassador Sondland mentioned ``Burisma'' in the presence of
the Ukrainians, in response to which Mr. Danyliuk also appeared
``very alarmed'' and as if he did not know what was
happening.\501\
Dr. Hill confronted Ambassador Sondland, informing him that
Ambassador Bolton had sent her there to ensure that the U.S.
officials did not commit ``at this particular juncture'' to a
meeting between President Trump and President Zelensky.
Ambassador Sondland responded that he and the Ukrainians
already had an agreement that the meeting would go
forward.\502\ At Dr. Hill's urging, however, Ambassador
Sondland excused the Ukrainian officials, who moved into the
corridor near the White House Situation Room.
Dr. Hill then told Ambassador Sondland: ``Look, I don't
know what's going on here, but Ambassador Bolton wants to make
it very clear that we have to talk about, you know, how are we
going to set up this meeting. It has to go through proper
procedures.'' Lt. Col. Vindman relayed his own concerns to
Ambassador Sondland in the Ward Room.\503\ He explained that
``the request to investigate the Bidens and his son had nothing
to do with national security, and that such investigations were
not something that the NSC was going to get involved in or
push.''\504\
Ambassador Sondland responded that he had had conversations
with Mr. Mulvaney and he also mentioned Mr. Giuliani. Lt. Col.
Vindman confirmed that Ambassador Sondland described an
agreement he had with Mr. Mulvaney about the Oval Office
meeting: ``I heard him say that this had been coordinated with
White House Chief of Staff Mr. Mick Mulvaney . . . He just said
that he had had a conversation with Mr. Mulvaney, and this is
what was required in order to get a meeting.''\505\ Dr. Hill
then cut the conversation short because she ``didn't want to
get further into this discussion at all.'' She testified that
Ambassador Sondland ``was clearly annoyed with this, but then,
you know, he moved off. He said he had other meetings.''\506\
Later on July 10, when Ambassador Taylor asked Ambassador
Volker how the meetings went with the Ukrainian officials and
whether they had resulted in a decision on a presidential call,
Ambassador Volker replied: ``Not good--lets talk.''\507\
Following the July 10 White House meetings, Mr. Yermak
followed up with Ambassador Volker by text message: ``Thank you
for meeting and your clear and very logical position. Will be
great meet with you before my departure and discuss. I feel
that the key for many things is Rudi and I ready to talk with
him at any time.''\508\
Concerned Officials Reported Details of This ``Drug Deal'' to White
House Lawyers
After the Ward Room meeting, Dr. Hill returned to
Ambassador Bolton's office and relayed what she had just
witnessed. Ambassador Bolton was ``very angry'' and instructed
her to report the conversation to John Eisenberg, Deputy
Counsel to the President for National Security Affairs and the
Legal Advisor to the National Security Council:
And he told me, and this is a direct quote from
Ambassador Bolton: You go and tell Eisenberg that I am
not part of whatever drug deal Sondland and Mulvaney
are cooking up on this, and you go and tell him what
you've heard and what I've said.\509\
Dr. Hill explained that ``drug deal'' referred to
Ambassador Sondland's and Mr. Mulvaney's conditioning of a
White House meeting on investigations.\510\ By this point, Dr.
Hill explained, it was clear that investigations were ``code,
at least, for Burisma. Because that had been mentioned, you
know, in the course of Mr. Giuliani's appearances on
television.''\511\ Numerous U.S. officials, including
Ambassadors Sondland, Volker, and Bolton, as well as Lt. Col.
Vindman and others, were well aware of Mr. Giuliani's efforts
to push Ukraine to pursue these political investigations.
Following the meeting with Ambassador Bolton, Dr. Hill
reported what had occurred to Mr. Eisenberg. She conveyed to
Mr. Eisenberg the details of the two meetings, including
Ambassador Sondland's agreement with Mr. Mulvaney to provide
the White House meeting if Ukraine agreed to pursue the
investigations.\512\ The initial conversation between Dr. Hill
and Mr. Eisenberg was brief, and they scheduled a longer
discussion for the next day.\513\
On July 11, Dr. Hill enlisted another NSC official who
attended the July 10 meetings, Senior Director for
International Energy and Environment P. Wells Griffith, to
attend the longer discussion with Mr. Eisenberg.\514\ Dr. Hill
and Mr. Griffith went over the events of July 10 and further
explained that Ambassador Sondland said that he had been
communicating with Mr. Giuliani. Mr. Eisenberg was ``very
concerned'' and stated that he would follow up. Dr. Hill
understood that Mr. Eisenberg later discussed the issue with
his ``reporting authority,'' specifically, White House Counsel
Pat Cipollone.\515\
Lt. Col. Vindman separately reported his concerns about the
July 10 meetings to Mr. Eisenberg. He told Mr. Eisenberg that
Ambassador Sondland had asked for investigations into ``Bidens
and Burisma,'' which he thought was ``inappropriate.''\516\ Lt.
Col. Vindman also reported that the investigation ``Mr.
Giuliani was pushing was now being pulled into a, you know,
national security dialogue.''\517\ Mr. Eisenberg said that he
would look into it and invited Lt. Col. Vindman to return if
any further concerns arose. No one from the of the White House
Counsel's Office, however, followed up with Lt. Col. Vindman on
this issue.\518\
Dr. Hill and Lt. Col. Vindman discussed their reactions and
alarm about the July 10 discussions with each other. They both
believed that Ambassador Sondland's statements were
inappropriate and ``had nothing to do with national security,''
and that they would not get involved with the scheme.\519\ On
July 19, they also shared their concerns about Ambassador
Sondland's comments during the July 10 meetings with Ambassador
Taylor.\520\
Ambassador Sondland Coached President Zelensky on Investigations and
Kept Senior White House and State Department Officials ``In the
Loop''
In mid-July, Dr. Hill was preparing to depart the NSC and
transitioning her role to Timothy Morrison, who had been
serving in another role at the NSC.\521\ On July 13, Ambassador
Sondland emailed Mr. Morrison, explaining that the ``[s]ole
purpose'' of a presidential call was for President Zelensky to
assure President Trump that, ``Corruption ending, unbundling
moving forward and any hampered investigations will be allowed
to move forward transparently.'' In exchange, Ambassador
Sondland wrote, the ``Goal is for Potus to invite him to Oval.
Volker, Perry, Bolton and I strongly recommend.''\522\ Later
that evening, Mr. Morrison responded, ``Thank you.
Tracking.''\523\
On July 19, a little over a week after the July 10 meetings
at the White House, Ambassador Sondland spoke directly to
President Zelensky about the upcoming call between the two
presidents: ``It was a short call. I think I said: It looks
like your call is finally on, and I think it's important that
you, you know, give President Trump--he wanted this--some kind
of a statement about corruption.''\524\
Following his call with President Zelensky, Ambassador
Sondland emailed several senior Trump Administration officials,
including Mr. Mulvaney, Secretary of State Michael Pompeo,
Secretary Perry, and their staffs. The subject line of the July
19 email read: ``I Talked to Zelensky just now.'' Ambassador
Sondland wrote:
He is prepared to receive Potus' call. Will assure
him that he intends to run a fully transparent
investigation and will ``turn over every stone''. He
would greatly appreciate a call prior to Sunday so that
he can put out some media about a ``friendly and
productive call'' (no details) prior to Ukraine
election on Sunday.\525\
Secretary Perry responded that Mr. Mulvaney had confirmed a
call would be set up ``for tomorrow by NSC,''\526\ and Mr.
Mulvaney also responded to confirm that he had asked the NSC to
set up the call between the presidents for the following day,
July 20.\527\
Ambassador Sondland explained that this email chain showed
that ``[e]veryone was in the loop'' regarding his discussions
with Ukrainian officials about the need for the Ukrainian
leader to confirm to President Trump that he would announce the
investigations. As Ambassador Sondland further testified:
It was no secret. Everyone was informed via email on
July 19th, days before the Presidential call. As I
communicated to the team, I told President Zelensky in
advance that assurances to run a fully transparent
investigation and turn over every stone were necessary
in his call with President Trump.\528\
Call records reviewed by the Committees show repeated
contact between Ambassador Sondland and the White House around
this time. For example, on July 19, at 10:43 a.m. Eastern Time,
a number associated with the White House dialed Ambassador
Sondland. Four minutes later, at 10:47 a.m., Ambassador
Sondland called a White House phone number and connected for
approximately seven minutes.\529\
Later in the afternoon of July 19, Ambassador Sondland
texted Ambassadors Volker and Taylor: ``Looks like Potus call
tomorrow. I spike [sic] directly to Zelensky and gave him a
full briefing. He's got it.''\530\ Ambassador Volker replied:
``Good. Had breakfast with Rudy this morning--teeing up call w
Yermak Monday. Must have helped. Most impt is for Zelensky to
say that he will help investigation--and address any specific
personnel issues--if there are any.''\531\
Mr. Giuliani Met with State Department Officials and Ukrainian
Government Officials
As Ambassador Volker informed Ambassador Sondland in the
above text message, on July 19, Ambassador Volker met Mr.
Giuliani and his now-indicted associate Lev Parnas for
breakfast at the Trump Hotel in Washington, D.C.\532\
Ambassador Volker also texted Mr. Yermak to inform him that he
and Mr. Giuliani were meeting that day: ``Having our long
anticipated breakfast today--will let you know and try to
connect you directly.''\533\
During the breakfast, Mr. Giuliani and Ambassador Volker
discussed the discredited allegations against former Vice
President Biden relating to Ukraine. Ambassador Volker
testified that he pushed back against the allegations during
his breakfast with Mr. Giuliani:
One of the things that I said in that breakfast that
I had with Mr. Giuliani, the only time Vice President
Biden was ever discussed with me, and he was
repeating--he wasn't making an accusation and he wasn't
seeking an investigation--but he was repeating all of
the things that were in the media that we talked about
earlier about, you know, firing the prosecutor general
and his son being on the company and all that.
And I said to Rudy in that breakfast the first time
we sat down to talk that it is simply not credible to
me that Joe Biden would be influenced in his duties as
Vice President by money or things for his son or
anything like that. I've known him a long time, he's a
person of integrity, and that's not credible.\534\
Ambassador Volker further advised Mr. Giuliani during the
breakfast that the then-Ukrainian Prosecutor General, Yuriy
Lutsenko, was promoting a ``self-serving narrative to preserve
himself in power.'' Mr. Giuliani agreed with Ambassador Volker
and stated that he had come to that conclusion as well.\535\
Following the breakfast, Ambassador Volker connected Mr.
Giuliani with Mr. Yermak by text message:
Volker: Mr Mayor--really enjoyed breakfast this
morning. As discussed, connecting you here with Andrey
Yermak, who is very close to President Zelensky. I
suggest we schedule a call together on Monday--maybe
10am or 11am Washington time? Kurt
Giuliani: Monday 10 to 11
Yermak: Ok, thank you
Volker: I will set up call--10 am--thanks--Kurt
Yermak: T\536\
On the morning of July 22, Mr. Yermak texted Ambassador
Volker about the upcoming call with Mr. Giuliani, writing that
it was ``very good'' that their discussion would take place
before the call between President Trump and President
Zelensky.\537\ Later that day, the three men spoke by phone.
Ambassador Volker described the July 22 discussion as merely an
``introductory phone call,''\538\ although phone records
indicate that the call lasted for approximately 38
minutes.\539\
Ambassador Volker testified that during the call, Mr.
Giuliani and Mr. Yermak discussed plans for an in-person
meeting in Madrid in early August.\540\ Afterward, Ambassador
Volker texted Mr. Yermak that he thought the call had been
``very useful'' and recommended that Mr. Yermak send Mr.
Giuliani a text message to schedule a date for the Madrid
meeting.\541\ Mr. Yermak texted Mr. Giuliani later that day
about a plan to ``take this relationship to a new level'' and
to meet in person as soon as possible.\542\
Later on July 22, Ambassador Volker updated Ambassador
Sondland on the ``great call'' he ``[o]rchestrated'' between
Mr. Giuliani and Mr. Yermak, noting that ``Rudy is now
advocating for phone call,'' an apparent reference to the call
between President Trump and President Zelensky that would occur
on July 25. Ambassador Volker also recommended that Ambassador
Sondland inform Mr. Mulvaney that ``Rudy agrees,'' and that he
planned to convey the same information to Ambassador Bolton.
Ambassador Sondland replied that Mr. Morrison of the White
House NSC was also in support of the call.\543\ Ambassador
Volker also told Ambassador Sondland that Mr. Giuliani and Mr.
Yermak would meet in person in Madrid within a couple of
weeks.\544\
President Zelensky Feared Becoming ``A Pawn'' in U.S. Reelection
Campaign
Around this time, senior Ukrainian officials informed U.S.
officials that the new Ukrainian president did not want Ukraine
to become enmeshed in U.S. domestic reelection politics.
On July 20, Ambassador Taylor spoke with Mr. Danyliuk, the
Ukrainian national security advisor, who conveyed that
President Zelensky ``did not want to be used as a pawn in a
U.S. reelection campaign.''\545\ Ambassador Taylor discussed
President Zelensky's concern with Ambassador Volker and, the
next day, texted Ambassador Sondland:
Taylor: Gordon, one thing Kurt and I talked about
yesterday was Sasha Danyliuk's point that President
Zelenskyy is sensitive about Ukraine being taken
seriously, not merely as an instrument in Washington
domestic, reelection politics.
Sondland: Absolutely, but we need to get the
conversation started and the relationship built,
irrespective of the pretext. I am worried about the
alternative.\546\
Ambassador Taylor explained that his reference to
``Washington domestic reelection politics'' was ``a reference
to the investigations that Mr. Giuliani wanted to
pursue.''\547\ According to Ambassador Taylor, President
Zelensky understood what President Trump and Mr. Giuliani meant
by ``investigations,'' and ``he did not want to get involved.''
Specifically, the Ukrainians understood that the
``investigations were pursuant to Mr. Giuliani's request to
develop information, to find information about Burisma and the
Bidens. This was very well known in public. Mr. Giuliani had
made this point clear in several instances in the beginning in
the springtime.''\548\ Ambassador Taylor also testified that
the ``whole thrust'' of the activities undertaken by Mr.
Giuliani and Ambassador Sondland ``was to get these
investigations, which Danyliuk and presumably Zelensky were
resisting because they didn't want to be seen to be interfering
but also to be a pawn.''\549\
Despite the Ukrainian resistance, Ambassador Sondland said
he believed that the public announcement of investigations
would ``fix'' an impasse between the Ukrainian government and
President Trump. When asked what he meant by ``irrespective of
the pretext'' in his July 21 text message to Ambassador Taylor,
Ambassador Sondland explained, ``Well, the pretext being the
agreed-upon interview or the agreed-upon press statement. We
just need to get by it so that the two can meet, because,
again, it was back to once they meet, all of this will be
fixed.''\550\
Witnesses Confirmed the President Conditioned an Oval Office Meeting on
Investigations
Multiple witnesses testified that the conditioning of an
Oval Office meeting on President Zelensky's announcement of
investigations to benefit the President's reelection campaign
came from the very top: President Trump.
Ambassador Sondland testified that he, Secretary Perry, and
Ambassador Volker worked with Mr. Giuliani ``at the express
direction of the President of the United States.''\551\
Ambassador Sondland stated that ``Mr. Giuliani was expressing
the desires of the President of the United States, and we knew
these investigations were important to the President.''\552\
Ambassador Sondland explained that he ``followed the directions
of the President'' and that ``we followed the President's
orders.''\553\
Ambassador Sondland further testified that President Trump
expressed--both directly and through Mr. Giuliani--that he
wanted ``a public statement from President Zelensky committing
to the investigations of Burisma and the 2016 election'' as
``prerequisites for the White House call and the White House
meeting.''\554\ Ambassador Sondland explained:
I know that members of this committee frequently
frame these complicated issues in the form of a simple
question: Was there a quid pro quo? As I testified
previously with regard to the requested White House
call and the White House meeting, the answer is
yes.\555\
Ambassador Sondland also testified that knowledge of this
quid pro quo was widespread among the President's advisers:
``Everyone was in the loop'' about the President's expectation
that President Zelensky had to announce these specific
investigations to secure an Oval Office meeting. As an example,
Ambassador Sondland cited an email--copying Senior Advisor to
the White House Chief of Staff Robert Blair, State Department
Executive Secretary Lisa Kenna, Chief of Staff to the Secretary
of Energy Brian McCormack, Mr. Mulvaney, Secretary Perry, and
Secretary Pompeo--where ``[e]veryone was informed.''\556\
Other U.S. government officials also understood this scheme
as a quid pro quo. Ambassador Taylor testified that as early as
mid-July, it was ``becoming clear'' to him that ``the meeting
President Zelensky wanted was conditioned on investigations of
Burisma and alleged Ukrainian influence in the 2016
elections''' and that ``this condition was driven by the
irregular policy channel I had come to understand was guided by
Mr. Giuliani.''\557\ Mr. Holmes similarly understood that by
July, ``it was made clear that some action on a Burisma/Biden
investigation was a precondition for an Oval Office
visit.''\558\ Dr. Hill testified that this quid pro quo was
readily apparent after reading the July 25 call summary,
explaining that it revealed that the White House meeting was
used as ``some kind of asset'' that was ``dangled out to the
Ukrainian Government'' to secure a political benefit.\559\
Final Preparation for Trump-Zelensky Call: Ambassador Volker Counseled
Ukrainians and Ambassador Sondland Prepped President Trump
Ambassador Taylor testified that the call between President
Trump and President Zelensky that ultimately occurred on July
25 was not confirmed until the last minute: ``We were trying to
schedule it for about a week in advance, that whole week. As I
say, back and forth, yes, no, this time, that time. . . . it
may have been about the day before that it was actually locked
down, so about the 24th.''\560\ According to Ambassador Taylor,
at least one person had prescient concerns about the call
before it occurred: ``Ambassador Bolton was not interested in
having--did not want to have the call because he thought it was
going to be a disaster. He thought that there could be some
talk of investigations or worse on the call.''\561\
Before the call took place on July 25, Ambassador Volker
had lunch with Mr. Yermak in Kyiv. Ambassador Volker followed
up with a text message to Mr. Yermak approximately 30 minutes
before the call, noting that a White House visit was still on
the table if, during the call, President Zelensky convinced
President Trump that Ukraine would ``investigate'' and ``get to
the bottom of what happened'' in 2016:
Volker: Good lunch--thanks. Heard from White House--
assuming President Z convinces trump he will
investigate/``get to the bottom of what happened'' in
2016, we will nail down date for visit to Washington.
Good luck! See you tomorrow--kurt
Ambassador Volker later informed Ambassador Sondland that
he had relayed this ``message'' to Mr. Yermak, which Ambassador
Sondland had conveyed to Ambassador Volker earlier that day:
Volker: Hi Gordon--got your message. Had a great
lunch w Yermak and then passed your message to him. He
will see you tomorrow. Think everything in place\562\
Ambassador Sondland testified that the ``message'' that
Ambassador Volker conveyed to Mr. Yermak in advance of the July
25 call likely originated from an earlier conversation that
Ambassador Sondland had with President Trump:
Q: So is it fair to say that this message is what you
received from President Trump on that phone call that
morning?
A: Again, if he testified to that, to refresh my own
memory, then, yes, likely I would have received that
from President Trump.
Q: But the sequence certainly makes sense, right?
A: Yeah, it does.
Q: You talked to President Trump.
A: Yeah.
Q: You told Kurt Volker to call you. You left a
message for Kurt Volker. Kurt Volker sent this text
message to Andriy Yermak to prepare President Zelensky
and then President Trump had a phone call where
President Zelensky spoke very similar to what was in
this text message, right?
A: Right.
Q: And you would agree that the message in this that
is expressed here is that President Zelensky needs to
convince Trump that he will do the investigations in
order to nail down the date for a visit to Washington,
D.C. Is that correct?
A: That's correct.\563\
Ambassador Sondland testified that he spoke with President
Trump before the call with President Zelensky.\564\ Mr.
Morrison also confirmed that President Trump and Ambassador
Sondland spoke before President Trump's call with President
Zelensky.\565\ Mr. Morrison stated that Ambassador Sondland
emailed him on the morning of the call and listed ``three
topics that he was working on, the first of which was I spoke
to the President this morning to brief him on the call.'''\566\
According to Mr. Morrison, Ambassador Sondland ``believed''
that he helped to facilitate the July 25 call between President
Trump and President Zelensky.\567\
On July 26, the day after the call between President Trump
and President Zelensky, Ambassador Volker acknowledged his role
in prepping President Zelensky for the call with President
Trump in a text to Mr. Giuliani: ``Hi Mr Mayor--you may have
heard--the President has [sic] a great phone call with the
Ukrainian President yesterday. Exactly the right messages as we
discussed.''\568\
5. The President Asked the Ukrainian President to Interfere in the 2020
U.S. Election by Investigating the Bidens and 2016 Election
Interference
During a call on July 25, President Trump asked President
Zelensky of Ukraine to ``do us a favor though'' and investigate
his political opponent, former Vice President Joe Biden, and a
debunked conspiracy theory that Ukraine interfered in the 2016
U.S. election. The next day, Ambassador Gordon Sondland
informed President Trump that President Zelensky ``was gonna do
the investigation'' and ``anything'' President Trump asked of
him.
Overview
During a telephone call on July 25, 2019, President Donald
J. Trump asked Ukrainian President Volodymyr Zelensky to
investigate his political rival, former Vice President Joseph
Biden, and a debunked conspiracy theory that Ukraine interfered
in the 2016 U.S. election. President Trump also discussed the
removal of Ambassador Marie Yovanovitch, former U.S. Ambassador
to Ukraine, said that she was ``bad news,'' and warned that she
would ``go through some things.'' Two witnesses who listened to
the call testified that they immediately reported the details
of the call to senior White House lawyers.
When asked by a reporter on October 3, 2019, what he had
hoped President Zelensky would do following the call, President
Trump responded: ``Well, I would think that, if they were
honest about it, they'd start a major investigation into the
Bidens. It's a very simple answer.''
Witnesses unanimously testified that President Trump's
claims about former Vice President Biden and alleged Ukrainian
interference in the 2016 U.S. election have been discredited.
The witnesses reaffirmed that in late 2015 and early 2016, when
former Vice President Biden advocated for the removal of a
corrupt Ukrainian prosecutor, he acted in accordance with a
``broad-based consensus'' and the official policy of the United
States, the European Union, and major international financial
institutions. Witnesses also unanimously testified that the
removal of that prosecutor made it more likely that Ukraine
would investigate corruption, not less likely.
Dr. Fiona Hill, former Deputy Assistant to the President
and Senior Director for Europe and Russia at the National
Security Council, testified that the conspiracy theories about
Ukrainian interference in the 2016 U.S. election touted by
President Trump are a ``fictional narrative that is being
perpetrated and propagated by the Russian security services.''
She noted that President Trump's former Homeland Security
Advisor Tom Bossert and former National Security Advisor H.R.
McMaster repeatedly advised the President that the so-called
``CrowdStrike'' conspiracy theory that President Trump raised
in the July 25 call is completely ``debunked,'' and that
allegations Ukraine interfered in the 2016 U.S. election are
false.
Nonetheless, on July 26, 2019, U.S. Ambassador to the
European Union Gordon Sondland met with senior Ukrainian
officials in Kyiv and then informed President Trump that
President Zelensky ``was gonna do the investigation'' into
former Vice President Biden and alleged Ukrainian interference
in the 2016 U.S. election. Ambassador Sondland added that
President Zelensky would ``do anything'' President Trump asked
of him. After the call, Ambassador Sondland told David Holmes,
Counselor for Political Affairs at the U.S. Embassy in Kyiv,
that President Trump ``did not give a shit about Ukraine'' and
that he only cared about the ``big stuff'' that benefited his
personal interests, like the ``Biden investigation.''
President Trump's Call with President Zelensky on July 25, 2019
On July 25, 2019, President Zelensky finally had a long-
awaited phone call with Ukraine's most important international
partner: The President of the United States.
It had been over three months since the two leaders first
spoke. Despite a warm but largely non-substantive call on April
21, President Trump had since declined President Zelensky's
invitation to attend his inauguration and directed Vice
President Mike Pence not to attend either.\569\ Ukrainian
efforts to set a date for a promised Oval Office meeting with
President Trump were stalled. As Mr. Holmes explained,
following the April 21 call:
President Zelensky's team immediately began pressing
to set a date for that visit. President Zelensky and
senior members of his team made clear that they wanted
President Zelensky's first overseas trip to be to
Washington, to send a strong signal of American
support, and requested a call with President Trump as
soon as possible.\570\
Before scheduling the July 25 call or a White House visit,
President Trump met on June 28 with Russian President Vladimir
Putin--whose armed forces were engaged in a war of attrition
against U.S.-backed Ukrainian forces--on the sidelines of the
G20 summit in Osaka, Japan.\571\ During their meeting,
President Trump and President Putin shared a joke about
Russia's meddling in the 2016 U.S. election.\572\
On July 25, President Trump joined the call with President
Zelensky from the Executive Residence at the White House, away
from a small group of senior national security aides who would
normally join him in the Oval Office for a conversation with a
foreign head of state. President Trump and President Zelensky
began to speak at 9:03 a.m. Washington time--4:03 p.m. in Kyiv.
According to Tim Morrison, the newly-installed Senior Director
for Europe and Russia on the NSC, President Zelensky spoke in
Ukrainian and occasionally in ``chopped English.''\573\
Translators interpreted the call on both sides.\574\ American
aides listening to the call from the White House Situation Room
hoped that what was said over the next 30 minutes would provide
President Zelensky with the strong U.S. endorsement he needed
in order to successfully negotiate an end to the five-year-old
war with Russia that had killed over 13,000 Ukrainian soldiers
and to advance President Zelensky's ambitious anti-corruption
initiatives in Ukraine.\575\
The Trump Administration's subject-matter experts, NSC
Director for Ukraine Lt. Col. Alexander Vindman and Mr.
Morrison, were both on the call.\576\ They had prepared talking
points for President Trump and were taking detailed notes of
what both leaders said, so that they could promptly implement
any agreed-upon actions.\577\ They were joined by Lt. Gen.
Keith Kellogg, National Security Advisor to the Vice President,
and Jennifer Williams, Special Advisor to the Vice President
for Europe and Russia. Assistant to the President Robert Blair,
a senior aide to Acting Chief of Staff Mick Mulvaney, was also
present, along with an NSC press officer.\578\ Secretary of
State Mike Pompeo listened from a different location, as did
Dr. Charles M. Kupperman, the Deputy National Security
Advisor.\579\
Notably, Secretary Pompeo did not reveal that he listened
to the July 25 call when asked directly about it on This Week
on September 22.\580\ Neither Secretary Pompeo nor the State
Department corrected the record until September 30, when ``a
senior State Department official'' disclosed the Secretary of
State's participation in the July 25 call.\581\
The two presidents first exchanged pleasantries. President
Trump congratulated the Ukrainian leader on his party's
parliamentary victory. In a nod to their shared experience as
political outsiders, President Zelensky called President Trump
``a great teacher'' who informed his own efforts to involve
``many many new people'' in Ukraine's politics and ``drain the
swamp here in our country.''\582\
The discussion turned to U.S. support for Ukraine.
President Trump contrasted U.S. assistance to that of America's
closest European allies, stating: ``We spend a lot of effort
and a lot of time. Much more than the European countries are
doing and they should be helping you more than they are.'' The
call then took a more ominous turn. President Trump stated that
with respect to U.S. support for Ukraine, ``I wouldn't say that
it's reciprocal necessarily because things are happening that
are not good but the United States has been very very good to
Ukraine.''\583\
President Zelensky, whose government receives billions of
dollars in financial support from the European Union and its
member states, responded that European nations were ``not
working as much as they should work for Ukraine,'' including in
the area of enforcing sanctions against Russia.\584\ He noted
that ``the United States is a much bigger partner than the
European Union'' and stated that he was ``very grateful''
because ``the United States is doing quite a lot for
Ukraine.''\585\
President Zelensky then raised the issue of U.S. military
assistance for Ukraine with President Trump: ``I also would
like to thank you for your great support in the area of
defense''--an area where U.S. support is vital.\586\ President
Zelensky continued: ``We are ready to continue to cooperate for
the next steps specifically we are almost ready to buy more
Javelins from the United States for defense purposes.''\587\
The Javelin anti-tank missiles, first transferred to Ukraine by
the United States in 2018, were widely viewed by U.S. officials
as a deterrent against further Russian encroachment into
Ukrainian territory.\588\
Immediately after the Ukrainian leader raised the issue of
U.S. military assistance to Ukraine, President Trump replied:
``I would like you to do us a favor though because our country
has been through a lot and Ukraine knows a lot about it.''\589\
Request to Investigate 2016 Election
President Trump then explained the ``favor'' he wanted
President Zelensky to do. He first requested that Ukraine
investigate a discredited conspiracy theory aimed at
undercutting the U.S. Intelligence Community's unanimous
conclusion that the Russian government interfered in the 2016
U.S. election.\590\ Specifically, President Trump stated:
I would like you to find out what happened with this
whole situation with Ukraine, they say Crowdstrike . .
. I guess you have one of your wealthy people . . . The
server, they say Ukraine has it. There are a lot of
things that went on, the whole situation. I think
you're surrounding yourself with some of the same
people. I would like to have the Attorney General call
you or your people and I would like you to get to the
bottom of it. As you saw yesterday, that whole nonsense
ended with a very poor performance by a man named
Robert Mueller, an incompetent performance, but they
say a lot of it started with Ukraine. Whatever you can
do, it's very important that you do it if that's
possible.\591\
President Trump was referencing the widely debunked
conspiracy theory that the Ukrainian government--and not
Russia--was behind the hack of Democratic National Committee
(DNC) servers in 2016, and that the American cybersecurity firm
CrowdStrike moved the DNC's servers to Ukraine to prevent U.S.
law enforcement from examining them. This theory is often
referred to in shorthand as ``CrowdStrike'' and has been
promoted by the Russian government.\592\
For example, during a press conference in February 2017,
just weeks after the U.S. Intelligence Community unanimously
assessed in a public report that Russia interfered in the 2016
U.S. election to benefit the candidacy of Donald J. Trump,
President Putin falsely asserted that ``the Ukrainian
government adopted a unilateral position in favour of one
candidate. More than that, certain oligarchs, certainly with
the approval of the political leadership, funded this
candidate, or female candidate, to be more precise.''\593\
President Trump's reference in his July 25 telephone call to
``one of your wealthy people'' tracked closely with President
Putin's accusations that ``certain oligarchs'' in Ukraine
meddled in the 2016 U.S. election to support Democratic
candidate Hillary Clinton.
Dr. Hill, an expert on Russia and President Putin,
testified that the claim that ``Russia and its security
services did not conduct a campaign against our country and
that perhaps, somehow for some reason, Ukraine did'' is ``a
fictional narrative that is being perpetrated and propagated by
the Russian security services themselves.'' Dr. Hill reaffirmed
that the U.S. Intelligence Community's January 2017 conclusion
that Russia interfered in the 2016 U.S. election is ``beyond
dispute, even if some of the underlying details must remain
classified.''\594\
Tom Bossert, President Trump's former Homeland Security
Advisor, stated publicly that the CrowdStrike theory is ``not
only a conspiracy theory, it is completely debunked.''\595\ Dr.
Hill testified that White House officials--including Mr.
Bossert and former National Security Advisor H.R. McMaster--
``spent a lot of time'' refuting the CrowdStrike conspiracy
theory to President Trump. Dr. Hill explained that Mr. Bossert
and others ``who were working on cybersecurity laid out to the
President the facts about the interference.'' She affirmed that
President Trump was advised that ``the alternative theory that
Ukraine had interfered in the election was false.''\596\
President Zelensky did not directly address President
Trump's reference to CrowdStrike during the July 25 call, but
he tried to assure President Trump that ``it is very important
for me and everything that you just mentioned earlier.''\597\
President Zelensky committed to proceed with an investigation,
telling President Trump that he had ``nobody but friends'' in
the new Ukrainian presidential administration, possibly
attempting to rebut Rudy Giuliani's earlier claims that
President Zelensky was surrounded by ``enemies'' of President
Trump. President Zelensky then specifically noted that one of
his assistants ``spoke with Mr. Giuliani just recently and we
are hoping very much that Mr. Giuliani will be able to travel
to Ukraine and we will meet once he comes to Ukraine.''\598\
Significantly, President Zelensky referenced Mr. Giuliani
even before President Trump had mentioned him, demonstrating
the Ukrainian leader's understanding that Mr. Giuliani
represented President Trump's interests in Ukraine. The
Ukrainian leader then reassured President Trump, ``I also plan
to surround myself with great people and in addition to that
investigation'' into the CrowdStrike conspiracy theory. He
said, ``I guarantee as the President of Ukraine that all the
investigations will be done openly and candidly. That I can
assure you.''\599\ President Trump replied, ``Rudy very much
knows what's happening and he is a very capable guy. If you
could speak to him that would be great.''\600\
Request to Investigate Bidens
President Trump then returned to his requested ``favor,''
asking President Zelensky about the ``[t]he other thing'': that
Ukraine investigate President Trump's U.S. political rival,
former Vice President Biden, for allegedly ending an
investigation into the Ukrainian energy company Burisma
Holdings. Vice President Biden's son, Hunter Biden, served as a
member of Burisma's board of directors. President Trump told
President Zelensky:
The other thing, There's a lot of talk about Biden's
son, that Biden stopped the prosecution and a lot of
people want to find out about that so whatever you can
do with the Attorney General would be great. Biden went
around bragging that he stopped the prosecution so if
you can look into it . . . It sounds horrible to
me.\601\
President Trump later continued, ``I will have Mr. Giuliani
give you a call and I am also going to have Attorney General
Barr call and we will get to the bottom of it. I'm sure you
will figure it out.''\602\
In public remarks on October 3, 2019, a reporter asked
President Trump, ``what exactly did you hope Zelensky would do
about the Bidens after your phone call? Exactly.'' President
Trump responded: ``Well, I would think that, if they were
honest about it, they'd start a major investigation into the
Bidens. It's a very simple answer.''\603\
When President Trump asserted to President Zelensky during
the July 25 call that former Vice President ``Biden went around
bragging that he stopped the prosecution,'' President Trump was
apparently referring to Vice President Biden's involvement in
the removal of the corrupt former Ukrainian prosecutor general,
Viktor Shokin.
Multiple witnesses--including Dr. Hill, former U.S.
Ambassador to Ukraine Marie Yovanovitch, Mr. Holmes, and Deputy
Assistant Secretary of State George Kent--testified that they
were not aware of any credible evidence to support the claim
that former Vice President Biden acted inappropriately when he
advocated for the removal of Mr. Shokin.\604\ To the contrary,
those witnesses confirmed that it was the official policy of
the United States, the European Union, and major international
financial institutions, to demand Mr. Shokin's dismissal. As
Mr. Kent--testified, there was ``a broad-based consensus'' that
Mr. Shokin was ``a typical Ukraine prosecutor who lived a
lifestyle far in excess of his government salary, who never
prosecuted anybody known for having committed a crime'' and who
``covered up crimes that were known to have been
committed.''\605\ Mr. Kent further explained:
What former Vice President Biden requested of former
President of Ukraine Poroshenko was the removal of a
corrupt prosecutor general, Viktor Shokin, who had
undermined a program of assistance that we had spent,
again, U.S. taxpayer money to try to build an
independent investigator unit to go after corrupt
prosecutors.\606\
As Ambassador Yovanovitch testified, the removal of a
corrupt Ukrainian prosecutor general, who was not prosecuting
enough corruption, increased the chance that alleged corruption
in companies in Ukraine could be investigated.\607\
Mr. Shokin was a known associate of Mr. Giuliani. As
described in Chapter 1, Mr. Giuliani had been communicating
with Mr. Shokin since at least 2018.\608\ Mr. Giuliani also
lobbied the White House on behalf of Mr. Shokin to intervene
earlier in 2019 when the State Department rejected a visa
application for Mr. Shokin to visit the United States based
upon Mr. Shokin's notorious corrupt conduct.\609\ Ambassador
Kurt Volker, U.S. Special Representative for Ukraine
Negotiations, testified that he explicitly warned Mr.
Giuliani--to no avail--against pursuing ``the conspiracy theory
that Vice President Biden would have been influenced in his
duties as Vice President by money paid to his son.''\610\
Ambassador Volker affirmed that former Vice President Biden is
``an honorable man, and I hold him in the highest
regard.''\611\
Attacks Against Ambassador Yovanovitch
During the July 25 call, President Trump also attacked
Ambassador Yovanovitch, whom he had ousted as the U.S.
Ambassador to Ukraine three months earlier after a concerted
smear campaign perpetuated by Mr. Giuliani. As described in
Chapter 1, Mr. Giuliani viewed Ambassador Yovanovitch--a
decorated diplomat who had championed Ukrainian anti-corruption
officials and activists--as an impediment to his activities in
Ukraine.\612\ President Trump told President Zelensky: ``The
former ambassador from the United States, the woman, was bad
news and the people she was dealing with in the Ukraine were
bad news so I just want to let you know that.'' He later added:
``Well, she's going to go through some things.''\613\
Ambassador Yovanovitch described her visceral reaction when
she first read the call record, after the White House released
it publicly on September 25, 2019. She testified, ``I was
shocked. I mean, I was very surprised that President Trump
would--first of all, that I would feature repeatedly in a
Presidential phone call, but secondly, that the President would
speak about me or any ambassador in that way to a foreign
counterpart.''\614\ When asked whether she felt ``threatened''
by President Trump's statement that ``she's going to go through
some things,'' Ambassador Yovanovitch answered that she
did.\615\
Praise of Corrupt Former Ukrainian Prosecutor
After disparaging Ambassador Yovanovitch, who had an
extensive record of combatting corruption, President Trump
praised an unnamed former Ukrainian prosecutor general--
referring to Yuriy Lutsenko--who was widely considered to be
corrupt and had promoted false allegations against Ambassador
Yovanovitch.\616\ President Trump told President Zelensky:
``Good because I heard you had a prosecutor who was very good
and he was shut down and that's really unfair. A lot of people
are talking about that, the way they shut your very good
prosecutor down and you had some very bad people
involved.''\617\ He later added, ``I heard the prosecutor was
treated very badly and he was a very fair prosecutor so good
luck with everything.''\618\
At the time of the July 25 call, Mr. Lutsenko--who was
collaborating with Mr. Giuliani to smear Ambassador Yovanovitch
and the Bidens--was still the Ukrainian prosecutor general. Mr.
Holmes testified that Mr. Lutsenko ``was not a good partner. He
had failed to deliver on the promised reforms that he had
committed to when he took office, and he was using his office
to insulate and protect political allies while presumably
enriching himself.''\619\ By July 2019, Mr. Holmes assessed
that Mr. Lutsenko was ``trying to angle to keep his job'' under
the new Zelensky Administration and that part of his strategy
was ``appealing to Rudy Giuliani and Donald Trump by pushing
out these false theories about the Bidens and the 2016
election.''\620\
Multiple witnesses testified that another former Ukrainian
prosecutor, Mr. Shokin, was also considered to be corrupt. For
example, Mr. Kent testified during his deposition that Mr.
Lutsenko and Mr. Shokin were ``corrupt former prosecutors'''
who were ``peddling false information in order to extract
revenge against those who had exposed their misconduct,
including U.S. diplomats, Ukrainian anticorruption officials,
and reform-minded civil society groups in Ukraine.''\621\
Ambassador Volker testified at his public hearing that Mr.
Lutsenko was ``not credible, and was acting in a self-serving
capacity.''\622\ Mr. Holmes further noted that Mr. Lutsenko
``resisted fully empowering truly independent anticorruption
institutions that would help ensure that no Ukrainians, however
powerful, were above the law.''\623\
After the call, the White House press office issued a short
and incomplete summary of the call, omitting major elements of
the conversation. The press statement read:
Today, President Donald J. Trump spoke by telephone
with President Volodymyr Zelenskyy of Ukraine to
congratulate him on his recent election. President
Trump and President Zelenskyy discussed ways to
strengthen the relationship between the United States
and Ukraine, including energy and economic cooperation.
Both leaders also expressed that they look forward to
the opportunity to meet.\624\
Concerns Raised by Lieutenant Colonel Alexander Vindman
Prior to President Trump's July 25 call with President
Zelensky, Lt. Col. Vindman had prepared--with Mr. Morrison's
review and approval--a call briefing package, including talking
points for President Trump's use. This was consistent with the
NSC's regular process of preparing for the President's phone
calls with foreign leaders.\625\ The NSC-drafted talking points
did not include any reference to Biden, Burisma, CrowdStrike,
or alleged Ukrainian interference in the 2016 U.S.
election.\626\
Lt. Col. Vindman testified during his deposition that,
prior to the July 25 call, he was aware of concerns from former
National Security Advisor John Bolton and other U.S. officials
that President Trump might raise these discredited issues with
President Zelensky.\627\ Indeed, Ambassador Bolton had resisted
scheduling the call because he believed it might be a
``disaster.''\628\
As he sat in the White House Situation Room listening to
the leaders, Lt. Col. Vindman quickly recognized that the
President's conversation was diverging from the talking points
he helped prepare based on the interagency policy process, and
``straying'' into an ``unproductive narrative'' promoted by Mr.
Giuliani and other ``external and nongovernmental
influencers''\629\--topics that Lt. Col. Vindman dubbed ``stray
voltage.''\630\
Lt. Col. Vindman knew immediately that he had a duty to
report the contents of the call to the White House lawyers. He
explained, ``I had concerns, and it was my duty to report my
concerns to the proper--proper people in the chain of
command.''\631\ Lt. Col. Vindman testified that President
Trump's request that a foreign leader dependent on the United
States open an investigation into his U.S. political opponent
constituted a ``demand'' that President Zelensky had to meet in
order to secure a White House meeting:
So, Congressman, the power disparity between the
President of the United States and the President of
Ukraine is vast, and, you know, in the President asking
for something, it became--there was--in return for a
White House meeting, because that's what this was
about. This was about getting a White House meeting. It
was a demand for him to fulfill his--fulfill this
particular prerequisite in order to get the
meeting.\632\
Lt. Col. Vindman further testified that President Trump's
demand of the Ukrainian leader was ``inappropriate'' and
``improper,'' and that it would undermine U.S. national
security:
Chairman, as I said in my statement, it was
inappropriate. It was improper for the President to
request--to demand an investigation into a political
opponent, especially a foreign power where there's, at
best, dubious belief that this would be a completely
impartial investigation, and that this would have
significant implications if it became public knowledge,
and it would be perceived as a partisan play. It would
undermine our Ukraine policy, and it would undermine
our national security.\633\
Within an hour of the call ending, Lt. Col. Vindman
reported his concerns to John A. Eisenberg, the Deputy Counsel
to the President for National Security Affairs and the Legal
Advisor to the NSC, and Michael Ellis, a Senior Associate
Counsel to the President and the Deputy Legal Advisor to the
NSC.\634\ Lt. Col. Vindman recounted the content of the call
based on his handwritten notes and told the lawyers that he
believed it was ``wrong'' for President Trump to ask President
Zelensky to investigate Vice President Biden.\635\
Concerns Raised by Timothy Morrison
After 17 years as a Republican Congressional staffer and
approximately a year serving elsewhere on the NSC staff, Mr.
Morrison assumed his position as the NSC's Senior Director for
Europe and Russia on July 15, 2019, only 10 days before
President Trump's call with President Zelensky.\636\
Before he transitioned into his new role, Mr. Morrison met
with his predecessor, Dr. Hill. She advised him to stay away
from efforts orchestrated by Mr. Giuliani and Ambassador
Sondland to pressure Ukraine into investigating a ``bucket of
issues''' that included ``Burisma the company,'' and ``Hunter
Biden on the board.''\637\ Dr. Hill also warned Mr. Morrison
before the July 25 call about the President's interest in
alleged Ukrainian interference in the 2016 U.S. election
related to the DNC server.\638\
Mr. Morrison testified that he had no knowledge of any
investigations at the time, but after performing a Google
search of ``what is Burisma?'' and seeing the name Hunter
Biden, Mr. Morrison decided to ``stay away.''\639\ Even though
he was new to the portfolio, Mr. Morrison promptly concluded
that because ``Burisma'' involved Hunter Biden, and because
former Vice President Biden was running for President, such
investigations could be a ``problematic'' area.\640\ Mr.
Morrison further explained that he tried to stay away from
requests related to Burisma and the 2016 U.S. election because
these investigations were not related to ``the proper policy
process that I was involved in on Ukraine,'' and ``had nothing
to do with the issues that the interagency was working
on.''\641\
With that background in mind, Mr. Morrison admitted he was
``concerned'' when, while listening to the call on July 25, he
heard President Trump raise ``issues related to the [DNC]
server.'' Ultimately, Mr. Morrison said, ``the call was not the
full-throated endorsement of the Ukraine reform agenda that I
was hoping to hear.''\642\
In ``fairly short order,'' Mr. Morrison reported the
contents of the call to Mr. Eisenberg and Mr. Ellis, the NSC
lawyers. He asked them to review the call, which he feared
would be ``damaging'' if leaked.\643\ Mr. Morrison stated that
at the time of the call, he ``did not have a view'' on whether
the call was ``appropriate and proper.''\644\ He also stated
that he ``was not concerned that anything illegal was
discussed.''\645\ During his deposition, however, Mr. Morrison
clarified, ``I did not then and I do not now opine . . . as to
the legality'' of what happened on the call.\646\
In a second meeting with Mr. Eisenberg, Mr. Morrison
requested that access to the electronic files of the call
record be restricted. This was an unusual request. Mr. Morrison
confirmed to the Committee that he had never before asked the
NSC Legal Advisor to restrict access to a presidential call
record.\647\ It was also unusual because Mr. Morrison raised
restricting access with Mr. Eisenberg despite the fact that Mr.
Morrison himself had the authority, as an NSC senior director,
to recommend restrictions on the relevant files to the NSC's
Executive Secretariat.
Lt. Col. Vindman also discussed restricting access to the
July 25 call summary with Mr. Eisenberg and Mr. Ellis. At some
point after the call, Lt. Col. Vindman discussed with the NSC
lawyers the ``sensitivity'' of the matters raised on the call
and ``the fact that . . . there are constant leaks.''\648\ Lt.
Col. Vindman explained that ``[f]rom a foreign policy
professional perspective, all of these types of calls would
inherently be sensitive.''\649\ But the July 25 call was
particularly sensitive because it could ``undermine our
relationship with the Ukrainians'' given that it ``would
implicate a partisan play.''\650\ The NSC lawyers, therefore,
believed that it was ``appropriate to restrict access for the
purpose of the leaks'' and ``to preserv[e] the integrity'' of
the transcript.\651\ Lt. Col. Vindman recalled that Mr. Ellis
raised the idea of placing the call summary on the NSC's server
for highly classified information and Mr. Eisenberg ``gave the
go-ahead.''\652\
Some weeks after his discussions with the NSC attorneys,
Mr. Morrison could not locate the call record. He contacted the
staff of the NSC's Executive Secretariat in search of an
explanation and was informed that ``John Eisenberg had directed
it to be moved to a different server'' utilized by the NSC
staff for highly classified information.\653\ This transfer
occurred despite Mr. Morrison's view that the call record did
not meet the requirements to be placed on the highly classified
system.\654\
Mr. Eisenberg later told Mr. Morrison that the call record
had been placed on the highly classified system by
``mistake.''\655\ Even after Mr. Eisenberg stated that the call
record was moved to the highly classified system by
``mistake,'' it nevertheless remained on that system until at
least the third week of September 2019, shortly before its
declassification and public release by the White House.\656\
Concerns Raised by Jennifer Williams
Vice President Pence's advisor, Ms. Williams, had listened
to nearly a dozen phone calls between President Trump and other
heads of state prior to July 25, 2019, as well as Vice
President Pence's April 23 call with President Zelensky.\657\
As she sat listening to President Trump's July 25 call, she was
struck by his requests relating to Vice President Biden. She
stated that she believed that President Trump's comments were
``unusual and inappropriate.''\658\
Ms. Williams testified that she thought that ``references
to specific individuals and investigations, such as former Vice
President Biden and his son'' were ``political in nature, given
that the former Vice President is a political opponent of the
President.''\659\ The comments struck her as ``more specific to
the President in nature, to his personal political agenda,'' as
opposed to ``a broader foreign policy objective of the United
States.''\660\ She added, ``it was the first time I had heard
internally the President reference particular investigations
that previously I had only heard about through Mr. Giuliani's
press interviews and press reporting.''\661\
Significantly, Ms. Williams, who had learned about the hold
on security assistance for Ukraine on July 3, also said that
the Trump-Zelensky call ``shed some light on possible other
motivations behind a security assistance hold.''\662\
``Burisma'' Omitted from Call Record
Mr. Morrison, Lt. Col. Vindman, and Ms. Williams all agreed
that the publicly released record of the call was substantially
accurate, but Lt. Col. Vindman and Ms. Williams both testified
that President Zelensky made an explicit reference to
``Burisma'' that was not included in the call record.
Specifically, Lt. Col. Vindman testified that his notes
indicated President Zelensky used the word ``Burisma''--instead
of generically referring to ``the company''--when discussing
President Trump's request to investigate the Bidens.\663\ Ms.
Williams' notes also reflected that President Zelensky had said
``Burisma'' later in the call when referring to a
``case.''\664\
Lt. Col. Vindman indicated that President Zelensky's
mention of ``Burisma'' was notable because it suggested that
the Ukrainian leader was ``prepped for this call.'' He
explained that ``frankly, the President of Ukraine would not
necessarily know anything about this company Burisma.'' Lt.
Col. Vindman continued, ``he would certainly understand some of
this--some of these elements because the story had been
developing for some time, but the fact that he mentioned
specifically Burisma seemed to suggest to me that he was
prepped for this call.''\665\
The Substance of the Call Remained Tightly Controlled
Ms. Williams testified that staff in the Office of the Vice
President placed the draft call record in the Vice President's
nightly briefing book on July 25.\666\
Separately, and following established protocols for
coordinating U.S. government activities toward Ukraine, Lt.
Col. Vindman provided Mr. Kent at the State Department with a
readout. Because Mr. Kent had worked on Ukraine policy for many
years, Lt. Col. Vindman sought Mr. Kent's ``expert view'' on
the investigations requested by the President. Mr. Kent
informed him that ``there was no substance'' behind the
CrowdStrike conspiracy theory and ``took note of the fact that
there was a call to investigate the Bidens.''\667\ Recalling
this conversation, Mr. Kent testified that Lt. Col. Vindman
said ``he could not share the majority of what was discussed
[on the July 25 call] because of the very sensitive nature of
what was discussed,'' but that Lt. Col. Vindman noted that the
call ``went into the direction of some of the most extreme
narratives that have been discussed publicly.''\668\
Ambassador Sondland Followed Up on President Trump's Request for
Investigations
Soon after arriving in Kyiv from Brussels on July 25,
Ambassador Sondland asked the U.S. Embassy to arrange a meeting
the next day with Ukrainian presidential aide Andriy
Yermak.\669\
On the morning of July 26, Ambassadors Sondland, Volker and
Taylor--accompanied by Mr. Holmes, who acted as their official
notetaker--went to the Presidential Administration Building in
central Kyiv for meetings with Ukrainian officials.\670\
Contrary to standard procedure, Mr. Holmes and Ambassador
Taylor did not receive readouts of the July 25 call, so they
were unaware of what President Trump and President Zelensky had
discussed.\671\ Ambassador Volker also did not receive an
official readout of the July 25 call from the NSC staff. He
testified that Andriy Yermak, a senior aide to President
Zelensky, simply characterized it as a ``good call'' in which
``President Zelensky did reiterate his commitment to reform and
fighting corruption in Ukraine.''\672\
The first meeting on July 26 was with Chief of Staff to
President Zelensky Andriy Bohdan.\673\ Regarding the July 25
call, Mr. Holmes recalled Mr. Bohdan sharing that ``President
Trump had expressed interest . . . in President Zelensky's
personnel decisions related to the Prosecutor General's office
[PGO].''\674\ Mr. Holmes further testified that Mr. Bohdan then
``started asking . . . about individuals I've since come to
understand they were considering appointing to different roles
in the PGO.''\675\ Mr. Holmes explained that he ``didn't
understand it,'' and that ``[i]t wasn't until I read the July
25th phone call transcript that I realized that the President
[Trump] had mentioned Mr. Lutsenko in the call.''\676\
Subsequently, Ambassadors Sondland, Taylor, and Volker met
with President Zelensky and other senior officials. Mr. Holmes
once again took notes.\677\ He testified ``During the meeting,
President Zelensky stated that, during the July 25th call,
President Trump had, quote, `three times raised some very
sensitive issues' and that he would have to follow up--he,
Zelensky--would have to follow up on those issues when he and
President Trump met in person.''\678\ After he read the
transcript of the July 25 call, Mr. Holmes determined that
President Zelensky's mention of ``sensitive issues'' was a
reference to President Trump's demands for a ``Burisma Biden
investigation.''\679\
Catherine Croft, Special Advisor to Ambassador Kurt Volker,
was also in Kyiv on July 26. Although she did not attend the
meeting with President Zelensky, she received a readout from
Ambassadors Volker and Taylor later that day, as they were
traveling in an embassy vehicle. Ms. Croft testified that her
handwritten notes from that readout indicate ``the President
[Trump] had raised investigations multiple times'' in his July
25 call with President Zelensky.\680\ Ambassadors Sondland and
Taylor told the Committee that they did not recall President
Zelensky's comments about investigations.\681\ Ambassador
Volker similarly did not recall that the issue of
investigations was discussed, but testified that he did not
dispute the validity of ``notes taken contemporaneously at the
meeting.''\682\
Ambassador Sondland Met One-on-One with Ukrainian Presidential Aide
The meeting with President Zelensky ended around noon.\683\
After the meeting, Ambassadors Taylor and Volker departed the
Presidential Administration building for a visit to the front
lines of the war with Russia in eastern Ukraine.\684\
Ambassador Sondland separately headed for Mr. Yermak's office.
Mr. Holmes testified that, at the last minute, he received
instruction from his leadership at the U.S. Embassy to join
Ambassador Sondland.\685\ By that point, Mr. Holmes recalled,
he ``was a flight of stairs behind Ambassador Sondland as he
headed to meet with Mr. Yermak.''\686\ Mr. Holmes continued,
``When I reached Mr. Yermak's office, Ambassador Sondland had
already gone in to the meeting.''\687\ Mr. Holmes then
``explained to Mr. Yermak's assistant that I was supposed to
join the meeting as the Embassy's representative and strongly
urged her to let me in, but she told me that Ambassador
Sondland and Mr. Yermak had insisted that the meeting be one on
one with no note taker.''\688\ Mr. Holmes ``then waited in the
anteroom until the meeting ended, along with a member of
Ambassador Sondland's staff and a member of the U.S. Embassy
Kyiv staff.''\689\
Ambassador Sondland's meeting with Mr. Yermak lasted
approximately 30 minutes.\690\ When it ended, Ambassador
Sondland did not provide Mr. Holmes an explanation of what they
discussed.\691\ Ambassador Sondland later testified that he did
not ``recall the specifics'' of his conversation with Mr.
Yermak, but he believed ``the issue of investigations was
probably a part of that agenda or meeting.''\692\
Call Between President Trump and Ambassador Sondland on July 26, 2019
After a busy morning of meetings with Ukrainian officials
on July 26, Ambassador Sondland indicated that he wanted to get
lunch. Mr. Holmes interjected that he would ``be happy to
join'' Ambassador Sondland and two other State Department
colleagues accompanying him ``if he wanted to brief me out on
his meeting with Mr. Yermak or discuss other issues.''\693\
Ambassador Sondland accepted the offer. The diplomats proceeded
``to a nearby restaurant and sat on an outdoor terrace.''\694\
Mr. Holmes ``sat directly across from Ambassador Sondland,''
close enough that they could ``share an appetizer.''\695\
Mr. Holmes recounted that ``at first, the lunch was largely
social. Ambassador Sondland selected a bottle of wine that he
shared among the four of us, and we discussed topics such as
marketing strategies for his hotel business.''\696\ Later
during the meal, Ambassador Sondland ``said that he was going
to call President Trump to give him an update.''\697\
Ambassador Sondland then placed a call on his unsecure mobile
phone. Mr. Holmes was taken aback. He told the Committee, ``it
was, like, a really extraordinary thing, it doesn't happen very
often''--a U.S. Ambassador picking up his mobile phone at an
outdoor cafe and dialing the President of the United
States.\698\
Mr. Holmes, who was sitting directly opposite from
Ambassador Sondland, said he ``heard him announce himself
several times, along the lines of, `Gordon Sondland, holding
for the President.' It appeared that he was being transferred
through several layers of switchboards and assistants, and I
then noticed Ambassador Sondland's demeanor changed and
understood that he had been connected to President
Trump.''\699\
Mr. Holmes stated he was able to hear the first part of
Ambassador Sondland's conversation with President Trump because
it was ``quite loud'' and ``quite distinctive'' when the
President began speaking. When President Trump started
speaking, Ambassador Sondland ``sort of winced and held the
phone away from his ear,'' and ``did that for the first couple
exchanges.''\700\
Recounting the conversation that followed, Mr. Holmes
testified:
I heard Ambassador Sondland greet the President and
explain he was calling from Kyiv. I heard President
Trump then clarify that Ambassador Sondland was in
Ukraine. Ambassador Sondland replied, yes, he was in
Ukraine, and went on to state that President Zelensky,
quote, ``loves your ass.'' I then heard President Trump
ask, ``So he's going to do the investigation?''
Ambassador Sondland replied that he is going to do it,
adding that President Zelensky will do ``anything you
ask him to do.''\701\
President Trump has denied that he spoke to Ambassador
Sondland on July 26 and told reporters, ``I know nothing about
that.''\702\ But in his public testimony before the Committee,
Ambassador Sondland noted that White House call records made
available to his legal counsel confirmed that the July 26 call
in fact occurred.\703\ Ambassador Sondland further explained
that Mr. Holmes's testimony--specifically, a ``reference to
A$AP Rocky''--refreshed his recollection about the July 26
call, which Ambassador Sondland had not originally disclosed to
the Committee.\704\
Although Ambassador Sondland did not believe he mentioned
the Bidens by name, he testified that with regard to the
substance of his July 26 conversation with President Trump: ``I
have no reason to doubt that this conversation included the
subject of investigations.''\705\ He added that he had ``no
reason'' to doubt Mr. Holmes' testimony about the contents of
the call, and that he would ``have been more surprised if
President Trump had not mentioned investigations, particularly
given what we were hearing from Mr. Giuliani about the
President's concerns.''\706\ Asked about his statement to
President Trump that President Zelensky ``loves your ass,''
Ambassador Sondland replied: ``That sounds like something I
would say. That's how President Trump and I communicate, a lot
of four-letter words, in this case three letter.''\707\
After the call between Ambassador Sondland and President
Trump ended, Ambassador Sondland remarked to Mr. Holmes that
``the President was in a bad mood,'' as ``was often the case
early in the morning.''\708\ Mr. Holmes, who had learned about
the freeze on U.S. security assistance days earlier, was
attempting to clarify the President's thinking, and said he
``took the opportunity to ask Ambassador Sondland for his
candid impression of the President's views on Ukraine'':
In particular, I asked Ambassador Sondland if it was
true that the President did not give a shit about
Ukraine. Ambassador Sondland agreed that the President
did not give a shit about Ukraine. I asked, why not,
and Ambassador Sondland stated, the President only
cares about, quote, unquote, ``big stuff.'' I noted
there was, quote, unquote, big stuff going on in
Ukraine, like a war with Russia. And Ambassador
Sondland replied that he meant, quote, unquote, ``big
stuff'' that benefits the President, like the, quote,
unquote, ``Biden investigation'' that Mr. Giuliani was
pushing. The conversation then moved on to other
topics.\709\
Ambassador Sondland did not dispute the substance of Mr.
Holmes' recollection of this discussion. He stated, ``I don't
recall my exact words, but clearly the President, beginning on
May 23, when we met with him in the Oval Office, was not a big
fan'' of Ukraine. Asked whether President Trump ``was a big fan
of the investigations,'' Ambassador Sondland replied:
``Apparently so.''\710\ Asked to clarify if, during his July 26
conversation with Mr. Holmes, he recalled ``at least referring
to an investigation that Rudy Giuliani was pushing,''
Ambassador Sondland replied, ``I would have, yes.''\711\
Mr. Holmes Informed U.S. Embassy Leadership about President Trump's
Call with Ambassador Sondland
After the lunch, Mr. Holmes dropped off Ambassador Sondland
at his hotel, the Hyatt Regency Kyiv. Mr. Holmes then returned
to the U.S. Embassy.\712\ Ambassador Taylor, the acting
Ambassador in Kyiv, was still visiting the front line. So when
he arrived at the Embassy, Mr. Holmes briefed his immediate
supervisor, Kristina Kvien, Deputy Chief of Mission at U.S.
Embassy Kyiv, about the President's call with Ambassador
Sondland and Ambassador Sondland's subsequent description of
President Trump's priorities for Ukraine.\713\
After taking a long-planned vacation from July 27 to August
5, Mr. Holmes told Ambassador Taylor about his lunch with
Ambassador Sondland on the first day he returned to work,
August 6.\714\ Mr. Holmes told the Committee that he did not
brief the call in detail to Ambassador Taylor because ``it was
obvious what the President was pressing for'':
Of course that's what's going on. Of course the
President is pressing for a Biden investigation before
he'll do these things the Ukrainians want. There was
nodding agreement. So did I go through every single
word in the call? No, because everyone by that point
agreed, it was obvious what the President was pressing
for.\715\
In October 2019, following the public release of testimony
by several witnesses pursuant to the Committee's impeachment
inquiry, Mr. Holmes reminded Ambassador Taylor about Ambassador
Sondland's July 26 conversation with President Trump.
Ambassador Taylor was preparing to return to Washington and
testify publicly before the Committee. Mr. Holmes had been
following news coverage of the inquiry and realized he had
unique, firsthand evidence that ``potentially bore on the
question of whether the President did, in fact, have
knowledge'' of efforts to press the Ukrainian President to
publicly announce investigations:
I came to realize that I had firsthand knowledge
regarding certain events on July 26 that had not
otherwise been reported and that those events
potentially bore on the question of whether the
President did, in fact, have knowledge that those
senior officials were using the levers of diplomatic
power to influence the new Ukrainian President to
announce the opening of a criminal investigation
against President Trump's political opponent. It is at
that point that I made the observation to Ambassador
Taylor that the incident I had witnessed on July 26th
had acquired greater significance, which is what he
reported in his testimony last week and is what led to
the subpoena for me to appear here today.\716\
Mr. Holmes testified that the July 26 call became ``sort of
a touchstone piece of information'' for diplomats at the U.S.
Embassy in Kyiv who ``were trying to understand why we weren't
able to get the meeting'' between President Trump and President
Zelensky and ``what was going on with the security hold.''\717\
He elaborated:
I would refer back to it repeatedly in our, you know,
morning staff meetings. We'd talk about what we're
trying to do. We're trying to achieve this, that. Maybe
it will convince the President to have the meeting. And
I would say, Well, as we know, he doesn't really care
about Ukraine. He cares about some other things. And
we're trying to keep Ukraine out of our politics and
so, you know, that's what we're up against.' And I
would refer--use that repeatedly as a refrain.\718\
6. The President Wanted Ukraine to Announce the Investigations Publicly
In the weeks following the July 25 call, President Trump's
hand-picked representatives carried out his wishes to condition
a coveted White House meeting for the Ukrainian President on
the public announcement of investigations beneficial to
President Trump. Top U.S. officials, including the Secretary of
State and Secretary of Energy, were ``in the loop.''
Overview
In the weeks following the July 25 call, during which
President Trump had pressed Ukrainian President Volodymyr
Zelensky to ``do us a favor though,'' the President's
representatives worked to secure from the Ukrainian President a
public announcement about the requested investigations as a
condition for the White House meeting.
That meeting would have conferred vital support on a new
president who relied on the United States to help defend his
nation militarily, diplomatically, and politically against
Russian aggression. U.S. Ambassador to the European Union
Gordon Sondland provided testimony and quoted from documents
demonstrating that he kept everyone ``in the loop'' about the
plan, including the Secretaries of State and Energy.
Ambassadors Sondland and Volker worked closely with Mr.
Giuliani, the President's personal lawyer, to help draft
Ukraine's public statement. They sought to ensure that
President Zelensky explicitly used the words ``Burisma''--a
reference to allegations about former Vice President Biden and
his son--and ``2016 elections.''
Ukrainian officials were ``very uncomfortable'' with the
provision of this statement, which they understood to be a
requirement and a ``deliverable'' demanded by President Trump.
The Ukrainian President was elected on a platform of rooting
out public corruption, and so he resisted issuing the
statement. Instead, President Zelensky's aides asked whether an
official request for legal assistance with investigations had
been made through appropriate channels at the U.S. Department
of Justice. No such formal request was ever made. Consequently,
Ukrainian officials made clear to Ambassador Volker that they
did not support issuing a public statement because it could
``play into'' U.S. domestic politics. Nevertheless, U.S.
efforts to secure a public statement continued.
Giuliani Met with Ukrainian Presidential Aide Andriy Yermak in Madrid
and Discussed a White House Meeting
On July 26, the day after the call between President Trump
and President Zelensky, Ambassador Volker wrote to Mr. Giuliani
to confirm that he would soon be meeting with Andriy Yermak, a
Ukrainian presidential aide, to ``help'' efforts.\719\
Ambassador Volker texted: ``Please send dates when you will
be in Madrid. I am seeing Yermak tomorrow morning. He will come
to you in Madrid. Thanks for your help! Kurt.''\720\ Mr.
Giuliani replied that he would travel to Spain from August 1 to
5, and Ambassador Volker affirmed that he would tell the
Ukrainian presidential aide to ``visit with you there.''\721\
Ambassador Volker kept himself apprised of plans, texting Mr.
Yermak on August 1 to ensure that everything was ``on track''
for the meeting in Spain's capital. He also asked whether Mr.
Yermak planned to visit Washington.\722\
On August 2, Mr. Yermak and Mr. Giuliani met in
Madrid.\723\ Ambassador Volker received a meeting summary from
Mr. Yermak the same day: ``My meeting with Mr. Mayor was very
good.'' Mr. Yermak added: ``We asked for White House meeting
during week start [sic] 16 Sept. Waiting for confirmation.
Maybe you know the date?''\724\
The Madrid meeting set off a ``series of discussions''
among Mr. Giuliani, Ambassador Volker, and Ambassador Sondland
about the need for President Zelensky to issue a public
statement about the investigations into Burisma and the 2016
election conspiracy theory in order to secure a White House
meeting with President Trump.\725\ Ambassador Volker first
spoke to Mr. Giuliani, who said that he thought Ukraine
``should issue a statement.''\726\ Ambassador Volker then spoke
to Mr. Yermak, who affirmed that the Ukrainian leader was
``prepared to make a statement'' that ``would reference Burisma
and 2016 in a wider context of bilateral relations and rooting
out corruption anyway.''\727\
Mr. Giuliani, acting as President Trump's personal
attorney, exerted significant influence in the process. On
August 4, Mr. Yermak inquired again about the presidential
meeting. Ambassador Volker replied that he would speak with Mr.
Giuliani later that day and would call the Ukrainian aide
afterward.\728\ Ambassador Volker texted the former mayor about
the Madrid meeting and asked for a phone call. Mr. Giuliani
replied: ``It was excellent I can call a little later.''\729\
Phone records obtained by the Committees show a 16 minute
call on August 5 between Ambassador Volker and Mr.
Giuliani.\730\ Ambassador Volker texted Mr. Yermak: ``Hi
Andrey--had a good long talk w Rudy--call anytime--Kurt.''\731\
During the same period, Ambassador Volker informed Ambassador
Sondland that ``Giuliani was happy with that meeting,'' and
``it looks like things are turning around.''\732\
``Potus Really Wants the Deliverable'' Before Scheduling a White House
Visit for President Zelensky
Things had not turned around by August 7. Ambassador Volker
texted Mr. Giuliani to recommend that he report to ``the
boss''--President Trump--about his meeting with Mr. Yermak in
Madrid. He wrote:
Hi Rudy--hope you made it back safely. Let's meet if
you are coming to DC. And would be good if you could
convey results of your meeting in Madrid to the boss so
we can get a firm date for a visit.\733\
The Committees did not find evidence that Mr. Giuliani
responded to Ambassador Volker's text message.
However, call records show that the next day, on August 8,
Mr. Giuliani connected with the White House Situation Room
switchboard in the early afternoon, Eastern Time, for 42
seconds, and then again for one minute, 25 seconds.\734\
The same day, Mr. Giuliani texted several times with a
number associated with the White House. The Committees were
unable to identify the official associated with the phone
number. In the mid-afternoon, someone using a telephone number
associated with the Office of Management and Budget (OMB)
called Mr. Giuliani, and the call lasted for nearly 13 minutes.
Mr. Giuliani called the OMB number and the White House
Situation Room several more times that evening, but each time
connected for only a few seconds or not at all.
RUDY GIULIANI CALL HISTORY, AUGUST 8
----------------------------------------------------------------------------------------------------------------
Connecting
Date Time Duration Caller Recipient
(EDT) of Call
----------------------------------------------------------------------------------------------------------------
08/08/19............................ 12:44:56 0:42 Giuliani, Rudy White House Switchboard
(Situation Room)\735\
08/08/19 12:45:38 1:25 Giuliani, Rudy White House Switchboard
(Situation Room)\736\
08/08/19 13:02:37 TEXT Giuliani, Rudy White House Number\737\
08/08/19............................ 13:02:37 TEXT Giuliani, Rudy White House Number\738\
08/08/19 13:02:57 TEXT Giuliani, Rudy White House Number\739\
08/08/19 14:14:53 TEXT White House Number Giuliani, Rudy\740\
08/08/19 14:15:17 TEXT Giuliani, Rudy White House Number\741\
08/08/19 14:21:13 TEXT Giuliani, Rudy White House Number\742\
08/08/19 15:13:05 12:56 OMB Number Giuliani, Rudy\743\
08/08/19 15:56:44 0:00 Giuliani, Rudy OMB-Associated Number\744\
08/08/19 15:56:51 0:00 Giuliani, Rudy OMB-Associated Number\745\
08/08/19 15:57:05 0:00 Giuliani, Rudy OMB-Associated Number\746\
08/08/19 15:57:21 0:22 Giuliani, Rudy White House Switchboard
(Situation Room)\747\
08/08/19 17:20:33 0:17 Giuliani, Rudy White House Switchboard
(Situation Room)\748\
08/08/19 19:14:48 0:00 Giuliani, Rudy White House Switchboard
(Situation Room)\749\
----------------------------------------------------------------------------------------------------------------
Approximately 30 minutes after his text to Mr. Giuliani on
August 7, Ambassador Volker received a text message from Mr.
Yermak: ``Do you have some news about White House meeting
date?''\750\ Ambassador Volker responded that he had asked Mr.
Giuliani to ``weigh in,'' presumably with the President,
``following your meeting,'' and that Ambassador Sondland would
be speaking with President Trump on Friday, August 9.
Ambassador Volker added: ``We are pressing this.''\751\ The
next day, on August 8, Mr. Yermak texted Ambassador Volker to
report that he had ``some news.''\752\ Ambassador Volker
replied that he was available to speak at that time.\753\
Later on the evening of August 8, Eastern Time, Mr.
Giuliani sent a text message to a phone number associated with
the White House. Approximately one hour 15 minutes later,
someone using an unidentified number (``-1'') dialed Mr.
Giuliani three times in rapid succession. Less than three
minutes later, Mr. Giuliani dialed the White House switchboard
for the White House Situation Room. When the call did not
connect, Mr. Giuliani immediately dialed another general number
for the White House switchboard and connected for 47 seconds.
Approximately 16 minutes later, someone using the ``-1'' number
called Mr. Giuliani and connected for just over four
minutes.\754\
RUDY GIULIANI CALL HISTORY, AUGUST 8, CONT.
----------------------------------------------------------------------------------------------------------------
Connecting
Date Time Duration Caller Recipient
(EDT) of Call
----------------------------------------------------------------------------------------------------------------
08/08/19 20:53:13 TEXT Giuliani, Rudy White House Number\755\
08/08/19 22:09:31 0:00 ``-1'' Giuliani, Rudy\756\
08/08/19 22:09:32 0.05 ``-1'' Giuliani, Rudy\757\
08/08/19 22:09:46 0:00 ``-1'' Giuliani, Rudy (Cell
2)\758\
08/08/19 22:09:47 0:02 ``-1'' Giuliani, Rudy (Cell
2)\759\
08/08/19 22:10:08 0:05 ``-1'' Giuliani, Rudy\760\
08/08/19 22:11:52 0:00 Giuliani, Rudy OMB-Associated Number\761\
08/08/19 22:12:16 0:00 Giuliani, Rudy White House Switchboard
(Situation Room)\762\
08/08/19 22:12:25 0:47 Giuliani, Rudy White House
Switchboard\763\
08/08/19 22:28:51 4:06 ``-1'' Giuliani, Rudy\764\
----------------------------------------------------------------------------------------------------------------
Late the next morning Washington time, on August 9,
Ambassador Volker texted Mr. Giuliani and Ambassador Sondland:
Hi Mr. Mayor! Had a good chat with Yermak last night.
He was pleased with your phone call. Mentioned Z
[President Zelensky] making a statement. Can we all get
on the phone to make sure I advise Z [President
Zelensky] correctly as to what he should be saying?
Want to make sure we get this done right. Thanks!\765\
It is unclear which ``phone call'' Ambassador Volker was
referencing.
Text messages and call records obtained by the Committees
show that Ambassador Volker and Mr. Giuliani connected by phone
twice around noon Eastern Time on August 9 for several minutes
each.\766\ Following the calls with Mr. Giuliani, Ambassador
Volker created a three-way group chat using WhatsApp that
included Ambassador Volker, Ambassador Sondland, and Mr.
Yermak.\767\
At 2:24 p.m. Eastern Time on August 9, Ambassador Volker
texted the group: ``Hi Andrey--we have all consulted here,
including with Rudy. Can you do a call later today or tomorrow
your afternoon time?''\768\ Ambassador Sondland texted that he
had a call scheduled for 3 p.m. Eastern Time ``for the three of
us. [State Department] Ops will call.''\769\
Call records obtained by the Committees show that on August
9, Ambassador Sondland twice called numbers associated with the
White House, once in early afternoon for approximately 18
minutes, and once in late afternoon for two minutes, 25 seconds
with a number associated with OMB.\770\
By early evening, minutes after his second call with the
OMB-associated number, Ambassador Volker and Ambassador
Sondland discussed a breakthrough they had reached in obtaining
a date for a White House visit, noting that President Trump
really wanted ``the deliverable'':
Sondland: [Tim] Morrison ready to get dates as soon as
Yermak confirms.
Volker: Excellent!! How did you sway him? :)
Sondland: Not sure i did. I think potus really wants
the deliverable
Volker: But does he know that?
Sondland: Yep
Sondland: Clearly lots of convos going on
Volker: Ok--then that's good it's coming from two
separate sources\771\
Ambassador Sondland told the Committees that the
``deliverable'' required by President Trump was a press
statement from President Zelensky committing to ``do the
investigations''' pushed by President Trump and Mr.
Giuliani.\772\
To ensure progress, immediately after their text exchange,
Ambassador Sondland recommended to Ambassador Volker that Mr.
Yermak share a draft of the press statement to ``avoid
misunderstandings'' and so they would know ``exactly what they
propose to cover.'' Ambassador Sondland explained: ``Even
though Ze [President Zelensky] does a live presser [press
event] they can still summarize in a brief statement.''
Ambassador Volker agreed.\773\
As they were negotiating the language that would appear in
a press statement, ``there was talk about having a live
interview or a live broadcast'' during which President Zelensky
would make the agreed-upon statement.\774\ Ambassador Sondland
suggested reviewing a written summary of the statement because
he was ``concerned'' that President Zelensky would ``say
whatever he would say on live television and it still wouldn't
be good enough for Rudy, slash, the President [Trump].''\775\
``Everyone Was in the Loop'' About Plan for Ukrainians to Deliver a
Public Statement about Investigations in Exchange for a White
House Visit
As negotiations continued, on August 10, Mr. Yermak texted
Ambassador Volker in an attempt to schedule a White House
meeting before the Ukrainian president made a public statement
in support of investigations into Burisma and the 2016
election. He wrote:
I think it's possible to make this declaration and
mention all these things. Which we discussed yesterday.
But it will be logic [sic] to do after we receive a
confirmation of date. We inform about date of visit
about our expectations and our guarantees for future
visit. Let [sic] discuss it\776\
Ambassador Volker responded that he agreed, but that first
they would have to ``iron out [a] statement and use that to get
[a] date,'' after which point President Zelensky would go
forward with making the statement.\777\ They agreed to have a
call the next day, and to include Ambassador Sondland. Mr.
Yermak texted:
Excellent. Once we have a date, will call for a press
briefing, announcing upcoming visit and outlining
vision for the reboot of the US-UKRAINE relationship,
including, among other things, Burisma and election
meddling in investigations.\778\
Ambassador Volker forwarded the message to Ambassador
Sondland, and they agreed to speak with Mr. Yermak the next
day.\779\
Ambassador Sondland testified that ``everyone was in the
loop'' regarding this plan.\780\ Also on August 10, Ambassador
Sondland informed Ambassador Volker that he briefed T. Ulrich
Brechbuhl, Counselor of the Department of State, noting: ``I
briefed Ulrich. All good.''\781\ Ambassador Sondland testified
that he ``may have walked [Mr. Brechbuhl] through where we
were.''\782\ When asked if Mr. Brechbuhl briefed Secretary
Pompeo, Ambassador Sondland noted that it was Mr. Brechbuhl's
``habit'' to ``consult with Secretary Pompeo frequently.''\783\
Secretary of Energy Rick Perry was also made aware of
efforts to pressure Ukraine to issue a public statement about
political investigations in exchange for a White House meeting.
Ambassador Sondland testified:
Mr. Giuliani conveyed to Secretary Perry, Ambassador
Volker, and others that President Trump wanted a public
statement from President Zelensky committing to
investigations of Burisma and the 2016 election. Mr.
Giuliani expressed those requests directly to the
Ukrainians. Mr. Giuliani also expressed those requests
directly to us. We all understood that these
prerequisites for the White House call and the White
House meeting reflected President Trump's desires and
requirements.\784\
On August 11, Ambassador Volker requested a phone call with
Ambassador Sondland and Mr. Giuliani, noting that he had heard
from Mr. Yermak that the Ukrainians were ``writing the
statement now and will send to us.''\785\ According to call
records obtained by the Committees, Ambassador Volker and Mr.
Giuliani connected for 34 seconds.\786\
The same day, Ambassador Sondland updated Mr. Brechbuhl and
Lisa Kenna, Executive Secretary of the State Department, about
efforts to secure a public statement and a ``big presser'' from
President Zelensky, which he hoped might ``make the boss happy
enough to authorize an invitation.'' He addressed the email to
Secretary Pompeo:
Mike,
Kurt [Volker] and I negotiated a statement from
Zelensky to be delivered for our review in a day or
two. The contents will hopefully make the boss happy
enough to authorize an invitation. Zelensky plans to
have a big presser on the openness subject (including
specifics) next week.\787\
Ambassador Sondland made clear in his hearing testimony
that by ``specifics,'' he meant the ``2016 and the Burisma''
investigations; ``the boss''' referred to ``President Trump;''
and ``the invitation'' referred to ``the White House
meeting.''\788\ Ms. Kenna replied to Ambassador Sondland that
she would ``pass to S [Secretary Pompeo]. Thank you.''\789\
Ambassador Sondland cited the email as evidence that ``everyone
was in the loop'' on plans to condition a White House meeting
on a public statement about political investigations.\790\
President Trump's Agents Negotiated a Draft Statement about the
Investigations
In the evening of the next day, August 12, Mr. Yermak
texted Ambassador Volker an initial version of the draft
statement, which read:
Special attention should be paid to the problem of
interference in the political processes of the United
States, especially with the alleged involvement of some
Ukrainian politicians. I want to declare that this is
unacceptable. We intend to initiate and complete a
transparent and unbiased investigation of all available
facts and episodes, which in turn will prevent the
recurrence of this problem in the future.\791\
The draft statement did not explicitly mention Burisma or
2016 election interference, as expected.
On August 13, around 10 a.m. Eastern Time, Ambassador
Volker texted Mr. Giuliani: ``Mr mayor--trying to set up call
in 5 min via state Dept. If now is not convenient, is there a
time later today?''\792\ Phone records show that, shortly
thereafter, someone using a State Department number called Mr.
Giuliani and connected for more than nine minutes.\793\
Ambassador Volker told the Committees that, during the call,
Mr. Giuliani stated: ``If [the statement] doesn't say Burisma
and 2016, it's not credible, because what are they
hiding?''\794\ Ambassador Volker asked whether inserting
references to ``Burisma and 2016'' at the end of the statement
would make it ``more credible.'' Mr. Giuliani confirmed that it
would.\795\
Two minutes after the call ended, Ambassador Volker sent a
WhatsApp message to Ambassador Sondland and Mr. Yermak: ``Hi
Andrey--we spoke with Rudy. When is good to call you?''\796\
Ambassador Sondland replied that it was, ``Important. Do you
have 5 mins.''\797\ They agreed to a call approximately 10
minutes later.\798\ When Ambassador Sondland suggested having
his ``operator'' in Brussels dial in the group, Ambassador
Volker asked if they could ``do this one on what's App?''\799\
Text messages and calls in the WhatsApp cell phone application
are encrypted from end-to-end, ensuring that WhatsApp employees
and third parties cannot listen in or retrieve deleted
communications.\800\
Shortly before the call, Ambassador Volker sent a revised
draft of the proposed statement to Ambassador Sondland. It had
been edited to include reference to Burisma and the 2016
elections:
Special attention should be paid to the problem of
interference in the political processes of the United
States, especially with the alleged involvement of some
Ukrainian politicians. I want to declare that this is
unacceptable. We intend to initiate and complete a
transparent and unbiased investigation of all available
facts and episodes including those involving Burisma
and the 2016 US elections, which in turn will prevent
the recurrence of this problem in the future.\801\
Ambassador Sondland replied: ``Perfect. Lets send to Andrey
after our call.''\802\
Following the call, Ambassador Volker texted Ambassador
Sondland and Mr. Yermak: ``Andrey--good talking--following is
text with insert at the end for the 2 key items.''\803\
Ambassador Volker then sent to them the revised statement that
included the explicit references to ``Burisma and 2016
elections.''\804\
COMPARISON OF DRAFT STATEMENTS
------------------------------------------------------------------------
Giuliani-Volker-
Yermak Draft August 12 Sondland Draft
August 13
------------------------------------------------------------------------
Special attention should be paid to the problem of Special attention
interference in the political processes of the should be paid to
United States, especially with the alleged the problem of
involvement of some Ukrainian politicians. I want interference in the
to declare that this is unacceptable. We intend political processes
to initiate and complete a transparent and of the United
unbiased investigation of all available facts and States, especially
episodes, which in turn will prevent the with the alleged
recurrence of this problem in the future. involvement of some
Ukrainian
politicians. I want
to declare that
this is
unacceptable. We
intend to initiate
and complete a
transparent and
unbiased
investigation of
all available facts
and episodes,
including those
involving Burisma
and the 2016 US
elections, which in
turn will prevent
the recurrence of
this problem in the
future.
------------------------------------------------------------------------
``Quid Pro Quo'' from ``the President of the United States''
Ambassador Volker testified that the language reflected
what Mr. Giuliani deemed necessary for the statement to be
``credible.''\805\ Ambassador Sondland noted the language was
``proposed by Giuliani.''\806\ Ambassador Sondland explained
that the language was a clear quid pro quo that expressed ``the
desire of the President of the United States'':
Mr. Giuliani's requests were a quid pro quo for
arranging a White House visit for President Zelensky.
Mr. Giuliani demanded that Ukraine make a public
statement announcing investigations of the 2016
election/DNC server and Burisma. Mr. Giuliani was
expressing the desires of the President of the United
States, and we knew that these investigations were
important to the President.\807\
Shortly after Ambassador Volker sent the revised statement
to Mr. Yermak on August 13, Ambassador Sondland called Mr.
Giuliani and connected for nearly four minutes.
Ukrainian Officials and Career State Department Became Increasingly
Concerned
On August 13--while Ambassador Volker, Ambassador Sondland,
and Mr. Yermak were negotiating the draft statement about
investigations--Mr. Yermak asked Ambassador Volker ``whether
any request had ever been made by the U.S. to investigate
election interference in 2016.'' He appeared interested in
knowing whether the U.S. Department of Justice had made an
official request to Ukraine's law enforcement agency for legal
assistance in such a matter.\808\ When Ambassador Volker sent
Mr. Giuliani's approved draft statement to Mr. Yermak, he
stated that he would ``work on official request.''\809\
Ambassador Volker testified: ``When I say official request,
I mean law enforcement channels, Department of Justice to law
enforcement in Ukraine, please investigate was there any effort
to interfere in the U.S. elections.''\810\ Ambassador Volker
explained:
He [Yermak] said, and I think quite appropriately,
that if they [Ukraine] are responding to an official
request, that's one thing. If there's no official
request, that's different. And I agree with that.\811\
According to Ambassador Volker, he was merely trying to
``find out'' if there was ever an official request made by the
Department of Justice: ``As I found out the answer that we had
not, I said, well, let's just not go there.''\812\
On September 25, within hours of the White House's public
release of the record of the July 25 call between President
Trump and President Zelensky, a Justice Department spokesperson
issued a statement, apparently confirming that no such formal
request had been made:
The President has not spoken with the Attorney
General about having Ukraine investigate anything
relating to former Vice President Biden or his son. The
President has not asked the Attorney General to contact
Ukraine--on this or any other matter. The Attorney
General has not communicated with Ukraine--on this or
any other subject.\813\
Ukraine's current Prosecutor General Ruslan Ryaboshapka,
who assumed his new position in late August 2019, confirmed the
Justice Department's account. He told the Financial Times in
late November 2019 that Attorney General Barr had made no
formal request regarding a potential investigation into
allegations of wrongdoing by former Vice President Biden.\814\
In an apparent reference to President Trump's demand that
Ukraine interfere in U.S. elections, Mr. Ryaboshapka added:
``It's critically important for the west not to pull us into
some conflicts between their ruling elites, but to continue to
support so that we can cross the point of no return.''\815\
Neither Ambassador Taylor in Ukraine nor Deputy Assistant
Secretary George Kent in Washington were aware of the efforts
by Ambassadors Sondland and Volker, in coordination with Mr.
Giuliani, to convince Ukrainian officials to issue a statement
in real time. Ambassador Taylor told the Committees that, on
August 16, in a text message exchange with Ambassador Volker,
he ``learned that Mr. Yermak had asked that the United States
submit an official request for an investigation into Burisma's
alleged violations of Ukrainian law, if that is what the United
States desired.''\816\ Ambassador Taylor noted that ``a formal
U.S. request to the Ukrainians to conduct an investigation
based on violations of their own law'' was ``improper'' and
advised Ambassador Volker to ``stay clear.''\817\
Nevertheless, Ambassador Volker requested Ambassador
Taylor's help with the matter.\818\ ``To find out the legal
aspects of the question,'' Ambassador Taylor gave Ambassador
Volker the name of an official at the Department of Justice
``whom I thought would be the proper point of contact for
seeking a U.S. referral for a foreign investigation.''\819\
On August 15, Ambassador Volker texted Ambassador Sondland
that Mr. Yermak wanted to ``know our status on asking them to
investigate.''\820\ Two days later, Ambassador Volker wrote:
``Bill [Taylor] had no info on requesting an investigation--
calling a friend at DOJ.'' Ambassador Volker testified that he
was not able to connect with his contact at the Department of
Justice.\821\
Mr. Kent testified that on August 15, Catherine Croft,
Ambassador Volker's special assistant, approached him to ask
whether there was any precedent for the United States asking
Ukraine to conduct investigations on its behalf. Mr. Kent
advised Ms. Croft:
[I]f you're asking me have we ever gone to the
Ukrainians and asked them to investigate or prosecute
individuals for political reasons, the answer is, I
hope we haven't, and we shouldn't because that goes
against everything that we are trying to promote in
post-Soviet states for the last 28 years, which is the
promotion of the rule of law.\822\
Mr. Kent testified that the day after his conversation with
Ms. Croft, he spoke with Ambassador Taylor, who ``amplified the
same theme'' and told Mr. Kent that ``Yermak was very
uncomfortable'' with the idea of investigations and suggested
that ``it should be done officially and put in writing.'' As a
result, it became clear to Mr. Kent in mid-August that Ukraine
was being pressured to conduct politically-motivated
investigations. Mr. Kent told Ambassador Taylor ``that's wrong,
and we shouldn't be doing that as a matter of U.S.
policy.''\823\
After speaking to Ms. Croft and Ambassador Taylor, Mr. Kent
wrote a memo to file on August 16 documenting his ``concerns
that there was an effort to initiate politically motivated
prosecutions that were injurious to the rule of law, both in
Ukraine and U.S.''\824\ Mr. Kent testified:
At the time, I had no knowledge of the specifics of
the [July 25] call record, but based on Bill Taylor's
account of the engagements with Andriy Yermak that were
engagements of Yermak with Kurt Volker, at that point
it was clear that the investigations that were being
suggested were the ones that Rudy Giuliani had been
tweeting about, meaning Biden, Burisma, and 2016.\825\
On August 17, Mr. Yermak reached out to both Ambassador
Sondland and Ambassador Volker.\826\ Ambassador Sondland texted
Ambassador Volker that ``Yermak just tapped on me about dates.
Havent responded. Any updates?''\827\ Ambassador Volker
responded that ``I've got nothing'' and stated that he was
contacting the Department of Justice to find out about
requesting an investigation.\828\
Ambassador Sondland then asked: ``Do we still want Ze
[Zelensky] to give us an unequivocal draft with 2016 and
Boresma [sic]?'' Ambassador Volker replied: ``That's the clear
message so far . . .'' Ambassador Sondland said that he would
ask that Mr. Yermak ``send us a clean draft,'' to which
Ambassador Volker replied that he had spoken to Mr. Yermak and
suggested that he and Ambassador Sondland speak the following
day, August 18, to discuss ``all the latest.''\829\
Ambassador Volker claimed that he ``stopped pursuing'' the
statement from the Ukrainians around this time because of
concerns raised by Mr. Yermak that Yuriy Lutsenko was still the
Prosecutor General. Mr. Lutsenko was likely to be replaced by
President Zelensky, and because Mr. Lutsenko was alleging the
same false claims that President Trump and Mr. Giuliani were
demanding of President Zelensky, Ukrainian officials ``did not
want to mention Burisma or 2016.''\830\ Ambassador Volker
testified that he ``agreed'' and advised Mr. Yermak that
``making those specific refences was not a good idea'' because
making those statements might ``look like it would play into
our domestic politics.''\831\
Mr. Yermak agreed and, according to Ambassador Volker,
plans to put out a statement were ``shelved.''\832\ Ambassador
Volker reasoned that the plan for a public statement did not
materialize partly because of ``the sense that Rudy was not
going to be convinced that it meant anything, and, therefore,
convey a positive message to the President if it didn't say
Burisma and 2016.''\833\ He added:
I agreed with the Ukrainians they shouldn't do it,
and in fact told them just drop it, wait till you have
your own prosecutor general in place. Let's work on
substantive issues like this, security assistance and
all. Let's just do that. So we dropped it.\834\
Ambassador Volker testified that, ``From that point on, I
didn't have any further conversations about this
statement.''\835\ Nevertheless, efforts to secure a
presidential statement announcing the two investigations into
the Bidens and the 2016 U.S. election interference continued
well into September.
On August 19, Ambassador Sondland told Ambassador Volker
that he ``drove the `larger issue' home'' with Mr. Yermak: that
this was bigger than just a White House meeting and was about
``the relationship per se.''\836\ Ambassador Volker told the
Committees that he understood this referred to ``the level of
trust that the President has with President Zelensky. He has
this general negative assumption about everything Ukraine, and
that's the larger issue.''\837\ That negative assumption would
prove difficult to overcome as Ukrainian and U.S. officials
sought to finally obtain a White House meeting and shake free
from the White House hundreds of millions of dollars in
Congressionally-approved security assistance for Ukraine.
7. The President's Conditioning of Military Assistance and a White
House Meeting on Announcement of Investigations Raised Alarm
Following the public disclosure in late August 2019 of a
hold on U.S. security assistance to Ukraine, President Trump
made clear that ``everything''--an Oval Office meeting and the
release of taxpayer-funded U.S. security assistance--was
contingent on the Ukrainian president announcing investigations
into former Vice President Joe Biden and a debunked conspiracy
theory about Ukrainian interference in the 2016 U.S. election.
President Trump wanted the Ukrainian leader ``in a public
box,'' even as Ambassador Bill Taylor warned that it was
``crazy to withhold security assistance for help with a
political campaign.''
Overview
On August 28, 2019, Politico first reported that President
Trump was withholding hundreds of millions of dollars of
Congressionally-appropriated U.S. security assistance from
Ukraine, a fact that had been previously suspected by Ukrainian
officials in July. Public revelations about the freeze raised
questions about the U.S. commitment to Ukraine and harming
efforts to deter Russian influence and aggression in Europe.
Around this time, American officials made clear to
Ukrainians that a public announcement about investigations into
Ukrainian interference in the 2016 election and former Vice
President Joe Biden was a pre-condition--not only to obtain a
White House meeting for President Zelensky, but also to end the
freeze on military and other security assistance for Ukraine.
In early September, Ambassador Gordon Sondland conveyed
President Trump's demands to both U.S. and Ukrainian officials.
On September 1, he informed a senior Ukrainian official that
the military aid would be released if the ``prosecutor general
would to go the mike [sic]'' and announce the investigations.
Later, on September 7, President Trump informed Ambassador
Sondland that he wanted President Zelensky--not the Prosecutor
General--in a ``public box'' and demanded that the Ukrainian
president personally announce the investigations to ``clear
things up.'' Only then would Ukraine end the ``stalemate'' with
the White House related to security assistance. President
Zelensky proceeded to schedule an interview on CNN in order to
announce the investigations and satisfy President Trump.
The President's efforts to withhold vital military and
security assistance in exchange for political investigations
troubled U.S. officials. NSC Senior Director for Europe and
Russia Timothy Morrison twice reported what he understood to be
the President's requirement of a quid pro quo to National
Security Advisor John Bolton, who advised him to ``make sure
the lawyers are tracking.'' Ambassador Bill Taylor expressed
his concerns to Ambassador Sondland, stating plainly that it
was ``crazy to withhold security assistance for help with a
political campaign.''
Secretary Pompeo and Ambassador Sondland Worked to ``Break the Logjam''
President Trump's hold on security assistance persisted
throughout August, without explanation to U.S. officials and
contrary to the consensus recommendation of the President's
national security team. At the same time, President Trump
refused to schedule a coveted White House visit for President
Zelensky until he announced two investigations that could
benefit President Trump's reelection prospects. The confluence
of those two circumstances led some American officials,
including Ambassador Sondland and David Holmes, Counselor for
Political Affairs at the U.S. Embassy in Kyiv, to conclude that
the military assistance was conditioned on Ukraine's public
announcement of the investigations.\838\
On August 20, Ambassador Kurt Volker met with Deputy
Assistant Secretary of Defense Laura Cooper. Ms. Cooper and
Ambassador Volker agreed that if the hold on security
assistance was not lifted, ``it would be very damaging to the
relationship'' between the U.S. and Ukraine.\839\ During this
meeting, Ambassador Volker mentioned that he was talking to an
advisor to President Zelensky about making a statement ``that
would somehow disavow any interference in U.S. elections and
would commit to the prosecution of any individuals involved in
election interference.''\840\ Ambassador Volker indicated that
if his efforts to get a statement were successful, the hold on
security assistance might be lifted.\841\
Although he did not mention that conversation during his
deposition, Ambassador Volker had a similar recollection,
during his public testimony, of the meeting with Ms. Cooper.
Ambassador Volker recalled discussing with Ms. Cooper the draft
statement that had been coordinated with Ukrainian presidential
aide Andriy Yermak--which included reference to the two
investigations that President Trump demanded in the July 25
call--and that such a statement ``could be helpful in getting a
reset of the thinking of the President, the negative view of
Ukraine that he had'' which might, in turn, ``unblock[]
whatever hold there was on security assistance.''\842\
Around this time, Ambassador Sondland sought to ``break the
logjam'' on the security assistance and the White House meeting
by coordinating a meeting between the two Presidents through
Secretary of State Mike Pompeo. On August 22, Ambassador
Sondland emailed Secretary Pompeo, copying the State
Department's Executive Secretary, Lisa Kenna:
Should we block time in Warsaw for a short pull-aside
for POTUS to meet Zelensky? I would ask Zelensky to
look him in the eye and tell him that once Ukraine's
new justice folks are in place (mid-Sept) Ze should be
able to move forward publicly and with confidence on
those issues of importance to Potus and to the US.
Hopefully, that will break the logjam.\843\
Secretary Pompeo replied, ``Yes.''\844\
Ambassador Sondland testified that when he referenced
``issues of importance to Potus,'' he meant the investigation
into the false allegations about Ukrainian interference in the
2016 election and the investigation into the Bidens.\845\ He
told the Committee that his goal was to ``do what was necessary
to get the aid released, to break the logjam.''\846\ Ambassador
Sondland believed that President Trump would not release the
aid until Ukraine announced the two investigations the
President wanted.\847\
Ambassador Sondland testified: ``Secretary Pompeo
essentially gave me the green light to brief President Zelensky
about making those announcements.''\848\ He explained:
This was a proposed briefing that I was going to give
President Zelensky, and I was going to call President
Zelensky and ask him to say what is in this email. And
I was asking essentially . . . [Secretary] Pompeo's
permission to do that, which he said yes.\849\
He then forwarded the email to Ms. Kenna, seeking
confirmation of ``10-15 min on the Warsaw sched[ule]'' for the
pull-aside meeting. The Ambassador stated that he was seeking
confirmation in order to brief President Zelensky. Ms. Kenna
replied, ``I will try for sure.''\850\
On August 24, Ukraine celebrated its Independence Day.
According to Mr. Holmes, Ukrainian Independence Day presented
``another good opportunity to show support for Ukraine.''\851\
However, nobody senior to Ambassador Volker attended the
festivities, even though Secretary of Defense James Mattis
attended in 2017 and Ambassador Bolton attended in 2018.\852\
Two days later, on August 26, Ambassador Bolton's office
requested Mr. Giuliani's contact information from Ambassador
Sondland. Ambassador Sondland sent Ambassador Bolton the
information directly.\853\ Ambassador Sondland testified that
he had ``no idea'' why Ambassador Bolton requested the contact
information.\854\
Ambassador Bolton Visited Kyiv
On August 27, Ambassador Bolton arrived in Kyiv for an
official visit. Ambassador Bolton emphasized to Andriy Bohdan,
President Zelensky's chief of staff, that an upcoming meeting
between Presidents Trump and Zelensky, scheduled for September
1 in Warsaw, Poland, would be ``crucial to cementing their
relationship.''\855\ Mr. Holmes, who accompanied Ambassador
Bolton in Kyiv, testified that he also heard ``Ambassador
Bolton express to Ambassador Taylor and Mr. Morrison his
frustration about Mr.--Giuliani's influence with the President,
making clear there was nothing he could do about it.''\856\
Prior to Ambassador Bolton's departure from Kyiv,
Ambassador Taylor asked to meet with him privately. Ambassador
Taylor expressed his ``serious concern about the withholding of
military assistance to Ukraine while the Ukrainians were
defending their country from Russian aggression.''\857\ During
the conversation, Ambassador Bolton ``indicated that he was
very sympathetic'' to Ambassador's Taylor's concerns.\858\ He
advised that Ambassador Taylor ``send a first-person cable to
Secretary Pompeo directly relaying my concerns'' about the
withholding of military assistance.\859\
Mr. Holmes testified that Ambassador Bolton advised during
his trip that ``the hold on security assistance would not be
lifted prior to the upcoming meeting between President Trump
and President Zelensky in Warsaw, where it would hang on
whether Zelensky was able to favorably impress President
Trump.''\860\
Ukrainian Concern Over Military Aid Intensified After First Public
Report of Hold
On August 28, 2019, Politico first reported that President
Trump had implemented a hold on nearly $400 million of U.S.
military assistance to Ukraine that had been appropriated by
Congress.
Almost immediately after the news became public, Ukrainian
officials expressed alarm to their American counterparts. Mr.
Yermak sent Ambassador Volker a link to the Politico story and
then texted: ``Need to talk with you.''\861\ Other Ukrainian
officials also expressed concerns to Ambassador Volker that the
Ukrainian government was being ``singled out and penalized for
some reason.''\862\
On August 29, Mr. Yermak also contacted Ambassador Taylor
to express that he was ``very concerned'' about the hold on
military assistance.\863\ Mr. Yermak and other Ukrainian
officials told Ambassador Taylor that they were ``just
desperate'' and would be willing to travel to Washington to
raise with U.S. officials the importance of the assistance.
Ambassador Taylor described confusion among Ukrainian officials
over the hold on military aid:
I mean, the obvious question was, ``Why?'' So Mr.
Yermak and others were trying to figure out why this
was . . . They thought that there must be some rational
reason for this being held up, and they just didn't--
and maybe in Washington they didn't understand how
important this assistance was to their fight and to
their armed forces. And so maybe they could figure--so
they were just desperate.\864\
Without any official explanation for the hold, American
officials could provide little reassurance to their Ukrainian
counterparts. Ambassador Taylor continued, ``And I couldn't
tell them. I didn't know and I didn't tell them, because we
hadn't--we hadn't--there'd been no guidance that I could give
them.''\865\
Ambassador Taylor's First-Person Cable Described the ``Folly'' in
Withholding Military Aid
The same day that Ambassador Taylor heard from Mr. Yermak
about his concerns about the hold on military aid, Ambassador
Taylor transmitted his classified, first-person cable to
Washington. It was the first and only time in Ambassador
Taylor's career that he sent such a cable to the Secretary of
State.\866\ The cable described ``the folly I saw in
withholding military aid to Ukraine at a time when hostilities
were still active in the east and when Russia was watching
closely to gauge the level of American support for the
Ukrainian Government.''\867\
Ambassador Taylor worried about the public message that
such a hold on vital military assistance would send in the
midst of Ukraine's hot war with Russia: ``The Russians, as I
said at my deposition, would love to see the humiliation of
President Zelensky at the hands of the Americans. I told the
Secretary that I could not and would not defend such a
policy.''\868\
The cable also sought to explain clearly ``the importance
of Ukraine and the security assistance to U.S.--national
security,'' according to Mr. Holmes.\869\ However, Mr. Holmes
worried that the national security argument might not achieve
its purpose given the reasons he suspected for the hold on
military aid. His ``clear impression'' at the time was that
``the security assistance hold was likely intended by the
President either as an expression of dissatisfaction with the
Ukrainians, who had not yet agreed to the Burisma/Biden
investigation, or as an effort to increase the pressure on them
to do so.''\870\ Mr. Holmes viewed this as ``the only logical
conclusion.''\871\ He had ``no other explanation for why there
was disinterest in this [White House] meeting that the
President had already offered'' and there was a ``hold of the
security assistance with no explanation whatsoever.''\872\
Ambassador Taylor never received a response to his cable,
but was told that Secretary Pompeo carried it with him to a
White House meeting about security assistance to Ukraine.\873\
Ambassador Sondland Told Senator Johnson That Ukraine Aid Was
Conditioned on Investigations
The next day, on August 30, Republican Senator Ron Johnson
spoke with Ambassador Sondland to express his concern about
President Trump's decision to withhold military assistance to
Ukraine. According to Senator Johnson, Ambassador Sondland told
him that if Ukraine would commit to ``get to the bottom of what
happened in 2016--if President Trump has that confidence, then
he'll release the military spending.''\874\
On August 31, Senator Johnson spoke by phone with President
Trump regarding the decision to withhold aid to Ukraine.\875\
President Trump denied the quid pro quo that Senator Johnson
had learned of from Ambassador Sondland.\876\ At the same time,
however, President Trump refused to authorize Senator Johnson
to tell Ukrainian officials that the aid would be
forthcoming.\877\
The message that Ambassador Sondland communicated to
Senator Johnson mirrored that used by President Trump during
his July 25 call with President Zelensky, in which President
Trump twice asked that the Ukrainian leader ``get to the bottom
of it,'' including in connection to an investigation into the
debunked conspiracy theory that Ukraine interfered in the 2016
election to help Hillary Clinton.\878\ To the contrary, the
U.S. Intelligence Community unanimously assessed that Russia
interfered in the 2016 election to help Donald Trump, as did
Special Counsel Robert Mueller.\879\
In a November 18 letter to House Republicans, Senator
Johnson confirmed the accuracy of the Wall Street Journal's
account of his August 30 call with Ambassador Sondland.\880\
Ambassador Sondland testified that he had ``no reason to
dispute'' Senator Johnson's recollection of the August 30 call
and testified that by late August 2019, he had concluded that
``if Ukraine did something to demonstrate a serious intention
to fight corruption, and specifically addressing Burisma and
the 2016, then the hold on military aid would be lifted.''\881\
Ambassador Sondland Raised the Link Between Investigations and Security
Assistance to Vice President Pence Before Meeting with
President Zelensky
On September 1, President Trump was scheduled to meet
President Zelensky in Warsaw, Poland during an event
commemorating World War II. Citing the approach of Hurricane
Dorian towards American soil, the President canceled his trip
just days beforehand. Vice President Mike Pence traveled to
Warsaw instead.\882\
Jennifer Williams, Special Advisor to the Vice President
for Europe and Russia, learned of the change in the President's
travel plans on August 29 and ``relied heavily on the NSC
briefing papers'' originally prepared for President Trump. Ms.
Williams recalled that ``prior to leaving, [National Security
Advisor to the Vice President] General Kellogg had asked, at
the request of the Vice President, for an update on the status
of the security assistance that was at that time still on
hold.'' Given the public reporting about the hold on August 29,
White House officials expected that President Zelensky would
seek further information on the status of the funds.\883\
The delegation arrived in Warsaw and gathered in a hotel
room to brief the Vice President shortly before his engagement
with President Zelensky. Ambassador Bolton, who had just
arrived from Kyiv, led the Ukraine briefing. He updated Vice
President Pence on President Zelensky's efforts to combat
corruption and explained ``what the security assistance was
for.'' Advisors in the room ``agreed on the need to get a final
decision on that security assistance as soon as possible so
that it could be implemented before the end of the fiscal
year.''\884\
Before the bilateral meeting between Vice President Pence
and President Zelensky, Ambassador Sondland attended a
``general briefing'' for the Vice President.\885\ Ambassador
Sondland testified that he raised concerns that the delay in
security assistance had ``become tied to the issue of
investigations.''\886\ The Vice President ``nodded like, you
know, he heard what I said.''\887\
During Ambassador Sondland's public testimony, Vice
President Pence's office issued a carefully worded statement
claiming that the Vice President ``never had a conversation
with Gordon Sondland about investigating the Bidens, Burisma,
or the conditional release of financial aid to Ukraine based
upon potential investigations,'' and that ``Ambassador Gordon
Sondland was never alone with the Vice President on the
September 1 trip to Poland.''\888\ Ambassador Sondland did not
testify that he specifically mentioned the Bidens, Burisma, or
the conditional release of financial aid to Ukraine during his
discussion with Vice President Pence, nor did he testify that
he was alone with the Vice President.
Before Vice President Pence's meeting with President
Zelensky, Ukrainian National Security Advisor Oleksandr
``Sasha'' Danyliuk wrote Ambassador Taylor, incorrectly
describing the failure to provide security assistance as a
``gradually increasing problem.''\889\ In the hours before Vice
President Pence's meeting with President Zelensky, Ambassador
Taylor replied, clarifying that ``the delay of U.S. security
assistance was an all-or-nothing proposition, in the sense that
if the White House did not lift the hold prior to the end of
the fiscal year, September 30th, the funds would expire and
Ukraine would receive nothing.''\890\ Ambassador Taylor wanted
to make sure Mr. Danyliuk understood that if the assistance was
not provided ``by the end of the fiscal year, then it goes
away.''\891\
President Zelensky Immediately Asked Vice President Pence About
Security Assistance
As expected, at the outset of the bilateral meeting,
President Zelensky immediately asked Vice President Pence about
the status of U.S. security assistance. It was ``the very first
question'' that he raised.\892\ President Zelensky emphasized
the multifold importance of American assistance, stating that
``the symbolic value of U.S. support in terms of security
assistance . . . was just as valuable to the Ukrainians as the
actual dollars.''\893\ President Zelensky also expressed
concern that ``any hold or appearance of reconsideration of
such assistance might embolden Russia to think that the United
States was no longer committed to Ukraine.''\894\
According to Ms. Williams, the Vice President ``assured
President Zelensky that there was no change in U.S. policy in
terms of our . . . full-throated support for Ukraine and its
sovereignty and territorial integrity.''\895\ Vice President
Pence also assured the Ukrainian delegation that he would
convey to President Trump the details of President Zelensky's
``good progress on reforms, so that hopefully we could get a
decision on the security assistance as soon as possible.''\896\
The reassurance proved to be ineffective. The Washington
Post later reported that one of President Zelensky's aides told
Vice President Pence: ``You're the only country providing us
military assistance. You're punishing us.''\897\
Mr. Holmes testified that President Trump's decision to
cancel his Warsaw trip effectively meant that ``the hold [on
security assistance] remained in place, with no clear means to
get it lifted.''\898\
Ambassador Sondland Informed President Zelensky's Advisor that Military
Aid Was Contingent on Ukraine Publicly Announcing the
Investigations
After the bilateral meeting between Vice President Pence
and President Zelensky, Ambassador Sondland briefly spoke to
President Zelensky's aide, Mr. Yermak. Ambassador Sondland
conveyed his belief that ``the resumption of U.S. aid would
likely not occur until Ukraine took some kind of action on the
public statement that we had been discussing for many weeks''
regarding the investigations that President Trump discussed
during the July 25 call.\899\
Immediately following the conversation, Ambassador Sondland
told Mr. Morrison what had transpired during his aside with Mr.
Yermak. Mr. Morrison recounted to the Committees that
Ambassador Sondland told Mr. Yermak ``what could help them move
the aid was if the prosecutor general would go to the mike
[sic] and announce that he was opening the Burisma
investigation.''\900\
Mr. Morrison Reported Ambassador Sondland's Proposal to Get Ukrainians
``Pulled Into Our Politics'' to White House Officials and
Ambassador Taylor
Mr. Morrison felt uncomfortable with ``any idea that
President Zelensky should allow himself to be involved in our
politics.''\901\ He promptly reported the conversation between
Ambassador Sondland and Mr. Yermak to Ambassador Bolton. Mr.
Morrison had concerns with ``what Gordon was proposing about
getting the Ukrainians pulled into our politics.''\902\
Ambassador Bolton told Mr. Morrison--consistent with his own
``instinct''--to ``make sure the lawyers are tracking.''\903\
Upon his return to Washington, Mr. Morrison reported his
concerns to NSC lawyers John Eisenberg and Michael Ellis.\904\
Mr. Morrison testified that, in speaking to the NSC legal
advisors, he wanted to ensure ``that there was a record of what
Ambassador Sondland was doing, to protect the President.''\905\
At this point, Mr. Morrison was not certain that the President
had authorized Ambassador Sondland's activities, but Mr.
Morrison agreed that if the President had been aware of
Ambassador Sondland's activities, the effect could be to create
a paper trail that incriminated President Trump.\906\
Mr. Morrison also reported the conversation to Ambassador
Taylor ``because I wanted him to be in a position to advise the
Ukrainians not to do it.''\907\ Ambassador Taylor said that he
was ``alarmed'' to hear about the remarks to Mr. Yermak.\908\
He explained that ``this was the first time that I had heard
that the security assistance, not just the White House meeting,
was conditioned on the investigations.''\909\ To Ambassador
Taylor, ``It's one thing to try to leverage a meeting in the
White House. It's another thing, I thought, to leverage
security assistance . . . to a country at war, dependent on
both the security assistance and the demonstration of
support.''\910\
President Trump Wanted President Zelensky in a ``Public Box,'' and Said
``Everything'' Depended on Announcing the Investigations
Upon hearing from Mr. Morrison about the conditionality of
the military aid on Ukraine publicly announcing the two
investigations, Ambassador Taylor sent a text message to
Ambassador Sondland: ``Are we now saying that security
assistance and WH meeting are conditioned on investigations?''
Ambassador Sondland responded, ``Call me.''\911\
Ambassador Sondland confirmed over the phone to Ambassador
Taylor that ``everything''--the Oval Office meeting and the
security assistance--was dependent on the Ukrainian government
publicly announcing the political investigations President
Trump requested on July 25. Informed by a review of
contemporaneous notes that he took during his phone call,
Ambassador Taylor testified:
During that phone call, Ambassador Sondland told me
that President Trump had told him that he wants
President Zelensky to state publicly that Ukraine will
investigate Burisma and alleged Ukrainian interference
in the 2016 election. Ambassador Sondland also told me
that he now recognized that he had made a mistake by
earlier telling Ukrainian officials that only a White
House meeting with President Zelensky was dependent on
a public announcement of the investigations. In fact,
Ambassador Sondland said, everything was dependent on
such an announcement, including security assistance. He
said that President Trump wanted President Zelensky in
a public box, by making a public statement about
ordering such investigations.\912\
By this point, Ambassador Taylor's ``clear understanding''
was that President Trump would withhold security assistance
until President Zelensky ``committed to pursue the
investigation.''\913\ He agreed that the U.S. position was ``if
they don't do this,'' referring to the investigations, ``they
are not going to get that,'' referring to the security
assistance.\914\ Ambassador Taylor also concurred with the
statement that ``if they don't do this, they are not going to
get that'' was the literal definition of a quid pro quo.\915\
Ambassador Taylor testified that his contemporaneous notes
of the phone call with Ambassador Sondland reflect that
Ambassador Sondland used the phrase ``public box'' to describe
President Trump's desire to ensure that the initiation of his
desired investigations was announced publicly.\916\ Ambassador
Sondland, who did not take contemporaneous notes of any of his
conversations, did not dispute that he used those words.\917\
He also testified that, when he spoke to Mr. Yermak, he
believed that it would be sufficient to satisfy the
requirements of President Trump and Mr. Giuliani if the new
Ukrainian prosecutor general issued a statement about
investigations, but his understanding soon changed.\918\
President Trump Informed Ambassador Sondland that President Zelensky
Personally ``Must Announce the Opening of the Investigations''
On September 7, Ambassador Sondland called Mr. Morrison to
report that he had just concluded a call with President Trump.
Mr. Morrison testified that Ambassador Sondland told him ``that
there was no quid pro quo, but President Zelensky must announce
the opening of the investigations and he should want to do
it.''\919\ This led Mr. Morrison to believe that a public
announcement of investigations by the Ukrainian president--and
not the prosecutor general--was a prerequisite for the release
of the security assistance.\920\ He reported the conversation
to Ambassador Bolton, who once again instructed him to ``tell
the lawyers,'' which Mr. Morrison did.\921\
Later on September 7, Mr. Morrison relayed the substance of
Ambassador Sondland's conversation with President Trump to
Ambassador Taylor. Ambassador Taylor explained:
I had a conversation with Mr. Morrison in which he
described a phone conversation earlier that day between
Ambassador Sondland and President Trump. Mr. Morrison
said that he had a sinking feeling after learning about
this conversation from Ambassador Sondland. According
to Mr. Morrison, President Trump told Ambassador
Sondland he was not asking for a quid pro quo, but
President Trump did insist that President Zelensky go
to a microphone and say he is opening investigations of
Biden and 2016 election interference and that President
Zelensky should want to do this himself. Mr. Morrison
said that he told Ambassador Bolton and the NSC lawyers
of this phone call between President Trump and
Ambassador Sondland.\922\
The following day, on September 8, Ambassador Sondland
texted Ambassadors Volker and Taylor: ``Guys multiple convos
with Ze, Potus. Lets talk.'' Ambassador Taylor responded one
minute later, ``Now is fine with me.''\923\ On the phone,
Ambassador Sondland ``confirmed that he had talked to President
Trump'' and that ``President Trump was adamant that President
Zelensky himself had to clear things up and do it in public.
President Trump said it was not a quid pro quo.''\924\
Ambassador Sondland also shared that he told President Zelensky
and Mr. Yermak that, ``although this was not a quid pro quo, if
President Zelensky did not clear things up in public, we would
be at a stalemate.''\925\
Ambassador Taylor testified that he understood
``stalemate'' to mean that ``Ukraine would not receive the
much-needed military assistance.''\926\ During his public
testimony, Ambassador Sondland did not dispute Ambassador
Taylor's recollection of events and agreed that the term
``stalemate'' referred to the hold on U.S. security assistance
to Ukraine.\927\
Although Ambassador Sondland otherwise could not
independently recall any details about his September 7
conversation with President Trump, he testified that he had no
reason to dispute the testimony from Ambassador Taylor or Mr.
Morrison--which was based on their contemporaneous notes--
regarding this conversation.\928\ Ambassador Sondland, however,
did recall that President Zelensky agreed to make a public
announcement about the investigations into Burisma and the
Bidens and the 2016 election in an interview on CNN.''\929\
According to Ambassador Taylor, Ambassador Sondland
explained that President Trump was a ``businessman,'' and that
when ``a businessman is about to sign a check to someone who
owes him something, the businessman asks that person to pay up
before signing the check.''\930\ Ambassador Taylor was
concerned that President Trump believed Ukraine ``owed him
something'' in exchange for the hundreds of millions of dollars
in taxpayer-funded U.S. security assistance.\931\ He argued to
Ambassador Sondland that ``the explanation made no sense. The
Ukrainians did not owe President Trump anything. And holding up
security assistance for domestic political gain was
crazy.''\932\ Ambassador Sondland did not recall this exchange
specifically, but did not dispute Ambassador Taylor's
testimony.\933\
Ambassador Taylor Texted Ambassador Sondland that ``It's Crazy to
Withhold Security Assistance for Help with a Political
Campaign''
Ambassador Taylor remained concerned by the President's
directive that ``everything'' was conditioned on President
Zelensky publicly announcing the investigations. He also
worried that, even if the Ukrainian leader did as President
Trump required, the President might continue to withhold the
vital U.S. security assistance in any event. Ambassador Taylor
texted his concerns to Ambassadors Volker and Sondland stating:
``The nightmare is they give the interview and don't get the
security assistance. The Russians love it. (And I quit.)''\934\
Ambassador Taylor testified:
``The nightmare'' is the scenario where President
Zelensky goes out in public, makes an announcement that
he's going to investigate the Burisma and the . . .
interference in 2016 election, maybe among other
things. He might put that in some series of
investigations. But . . . the nightmare was he would
mention those two, take all the heat from that, get
himself in big trouble in this country and probably in
his country as well, and the security assistance would
not be released. That was the nightmare.\935\
Early in the morning in Europe on September 9, Ambassador
Taylor reiterated his concerns about the President's ``quid pro
quo'' in another series of text messages with Ambassadors
Volker and Sondland:
Taylor: The message to the Ukrainians (and Russians)
we send with the decision on security assistance is
key. With the hold, we have already shaken their faith
in us. Thus my nightmare scenario.
Taylor: Counting on you to be right about this
interview, Gordon.
Sondland: Bill, I never said I was ``right''. I said
we are where we are and believe we have identified the
best pathway forward. Lets hope it works.
Taylor: As I said on the phone, I think it's crazy to
withhold security assistance for help with a political
campaign.\936\
By ``help with a political campaign,'' Ambassador Taylor
was referring to President Trump's 2020 reelection effort.\937\
Ambassador Taylor testified: ``The investigation of Burisma and
the Bidens was clearly identified by Mr. Giuliani in public for
months as a way to get information on the two Bidens.''\938\
Ambassador Taylor framed the broader national security
implications of President Trump's decision to withhold vital
security assistance from Ukraine. He said:
[T]he United States was trying to support Ukraine as
a frontline state against Russian attack. And, again,
the whole notion of a rules-based order was being
threatened by the Russians in Ukraine. So our security
assistance was designed to support Ukraine. And it was
not just the United States; it was all of our
allies.\939\
Ambassador Taylor explained:
[S]ecurity assistance was so important for Ukraine as
well as our own national interests, to withhold that
assistance for no good reason other than help with a
political campaign made no sense. It was
counterproductive to all of what we had been trying to
do. It was illogical. It could not be explained. It was
crazy.\940\
Ambassador Sondland Repeated the President's Denial of a ``Quid Pro
Quo'' to Ambassador Taylor, While He and President Trump
Continued to Demand Public Investigations
In response to Ambassador Taylor's text message that it was
``crazy to withhold security assistance for help with a
political campaign,'' Ambassador Sondland denied that the
President had demanded a ``quid pro quo.''
At approximately 5:17 a.m. Eastern Time, Ambassador
Sondland responded to Ambassador Taylor:
Bill, I believe you are incorrect about President
Trump's intentions. The President has been crystal
clear: no quid pro quo's of any kind. The President is
trying to evaluate whether Ukraine is truly going to
adopt the transparency and reforms that President
Zelensky promised during his campaign. I suggest we
stop the back and forth by text. If you still have
concerns, I recommend you give Lisa Kenna or S
[Secretary Pompeo] a call to discuss them directly.
Thanks.\941\
Notably, Ambassador Sondland recalled that President Trump
raised the possible existence of a quid pro quo entirely on his
own, without any prompting. Ambassador Sondland asked President
Trump what he affirmatively wanted from Ukraine, yet President
Trump reportedly responded by asserting what was not the case:
Q: Okay. During that telephone conversation with
President Trump, you didn't ask the President directly
if there was a quid pro quo, correct?
A: No. As I testified, I asked the question open
ended, what do you want from Ukraine?
Q: President Trump was the first person to use the
word ``quid pro quo,'' correct?
A: That is correct.\942\
In contrast, Ambassador Sondland testified unequivocally
there was a quid pro quo in connection to a telephone call
between President Trump and President Zelensky, as well as a
White House meeting for President Zelensky.\943\ He
acknowledged that the reference to ``transparency and
reforms''' in his text message to Ambassador Taylor ``was my
clumsy way of saying he wanted these announcement to be
made.''\944\
Ambassador Sondland also testified that President Trump
immediately followed his stated denial of a quid pro quo by
demanding that President Zelensky still make a public
announcement, while the military assistance remained on an
unexplained hold. Ambassador Sondland agreed that President
Trump said that he wanted President Zelensky to ``clear things
up and do it in public,'' as Ambassador Taylor had
testified.\945\ Ambassador Sondland testified that nothing on
his call with President Trump changed his understanding of a
quid pro quo and, at least as of September 8, he was
``absolutely convinced'' the White House meeting and President
Trump's release of the military assistance were conditioned on
the public announcement of the investigations President Trump
sought.\946\
After hearing from President Trump, Ambassador Sondland
promptly told the Ukrainian leader and Mr. Yermak that ``if
President Zelensky did not clear things up in public, we would
be at a stalemate.''\947\ President Zelensky responded to the
demand relayed by Ambassador Sondland, by agreeing to make an
announcement of investigations on CNN.\948\
Regardless of when the call between President Trump and
Ambassador Sondland occurred, both that phone call and
Ambassador's Sondland text message denying any quid pro quo
occurred after the White House had been informed of the
whistleblower complaint discussing the hold on security
assistance. The White House first received notice of the
whistleblower complaint alleging wrongdoing concerning the
President's July 25 call with President Zelensky on August 26--
over a week before the ``no quid pro quo'' denial.\949\ In
addition, Ambassador Sondland wrote his text message on
September 9, the same day that the ICIG informed the Committee
of the existence of a ``credible'' and ``urgent'' whistleblower
complaint that was later revealed to be related to
Ukraine.\950\ The Administration received prior notice of the
ICIG's intent to inform the Committee.\951\
Ambassador Sondland's Testimony is the Only Evidence the Committees
Received Indicating That President Trump Denied Any ``Quid Pro
Quo'' on the Phone on September 9
Ambassador Sondland testified in his deposition that he
sent a text message to Ambassador Taylor after speaking
directly with President Trump on September 9. However,
testimony from other witnesses and documents available to the
Committees do not confirm that Ambassador Sondland and
President Trump spoke on that day.
Ambassador Sondland's own testimony indicated some
ambiguity in his recollection of the timing of the call. At a
public hearing on November 20, Ambassador Sondland testified
that he ``still cannot find a record of that call [on September
9] because the State Department and the White House cannot
locate it.''\952\ While Ambassador Sondland testified that
``I'm pretty sure I had the call on that day,''\953\ he
acknowledged that he might have misremembered the date of the
September 9 call--``I may have even spoken to him on September
6th''--and that without his call records, he could not be
certain about when he spoke to President Trump.\954\
After the deposition transcripts of Ambassador Taylor and
Mr. Morrison were made public, including their detailed
accounts of the September 7 conversation that Ambassador
Sondland had with President Trump, Ambassador Sondland
submitted a written addendum to his deposition based on his
``refreshed'' recollection.\955\ In that addendum, Ambassador
Sondland amended his testimony and stated, ``I cannot
specifically recall if I had one or two phone calls with
President Trump in the September 6-9 time frame.''\956\
Furthermore, the conversation recalled by Ambassador
Sondland as having taken place on September 9 is consistent
with a conversation that Ambassador Sondland relayed to Mr.
Morrison and Ambassador Taylor during the previous two days.
Both Mr. Morrison and Ambassador Taylor, after reviewing their
contemporaneous written notes, provided detailed testimony
about Ambassador Sondland's description of his call with
President Trump. For example, Ambassador Sondland shared with
Ambassador Taylor that even though President Trump asserted
that ``there is no quid pro quo,'' President Trump ``did insist
that President Zelensky go to a microphone and say he is
opening investigations of Biden and 2016 election
interference.''\957\ Mr. Morrison and Ambassador Taylor both
testified that this conversation occurred on September 7.\958\
Ambassador Sondland acknowledged that he had no basis to
dispute the recollections of Mr. Morrison and Ambassador
Taylor.\959\ Ambassador Sondland, who testified that he does
not take notes, stated: ``If they have notes and they recall
that, I don't have any reason to dispute it.''\960\
Text messages produced to the Committees also indicate that
Ambassador Sondland spoke to President Trump prior to September
8. On September 4, Ambassador Volker texted Mr. Yermak that
Ambassador Sondland planned to speak to President Trump on
September 6 or 7. Ambassador Volker wrote: ``Hi Andrey. Reports
are that pence liked meeting and will press trump on scheduling
Ze visit. Gordon will follow up with pence and, if nothing
moving, will have a chance to talk with President on Saturday
[September 7].''\961\ Ambassador Volker then corrected himself:
``Sorry--on Friday [September 6].''\962\
On Sunday, September 8, at 11:20 a.m. Eastern Time,
Ambassador Sondland texted Ambassadors Taylor and Volker:
``Guys multiple convos with Ze, Potus. Lets talk.''\963\
Shortly after this text, Ambassador Taylor testified that he
spoke to Ambassador Sondland, who recounted his conversation
with President Trump on September 7, as well as a separate
conversation that Ambassador Sondland had with President
Zelensky.
The timing of the text messages also raises questions about
Ambassador Sondland's recollection. If Ambassador Sondland
spoke to President Trump after receiving Ambassador Taylor's
text message on September 9, and before he responded, then the
timing of the text messages would mean that President Trump
took Ambassador Sondland's call in the middle of the night in
Washington, D.C. Ambassador Taylor sent his message on
September 9 at 12:47 a.m. Eastern Time, and Ambassador Sondland
responded less than five hours later at 5:19 a.m. Eastern
Time.\964\
In any event, President Trump's purported denial of the
``quid pro quo'' was also contradicted when Acting Chief of
Staff Mick Mulvaney publicly admitted that security assistance
was withheld in order to pressure Ukraine to conduct an
investigation into the 2016 election.
On October 17, at a press briefing in the White House, Mr.
Mulvaney confirmed that President Trump withheld the essential
military aid for Ukraine as leverage to pressure Ukraine to
investigate the conspiracy theory that Ukraine had interfered
in the 2016 U.S. election, which was also promoted by Vladimir
Putin.\965\ Mr. Mulvaney confirmed that President Trump
``absolutely'' mentioned ``corruption related to the DNC
server. . . . No question about that.''\966\ When the White
House press corps attempted to clarify this acknowledgement of
a quid pro quo related to security assistance, Mr. Mulvaney
replied: ``We do that all the time with foreign policy.'' He
continued. ``I have news for everybody: get over it.''\967\
8. The President's Scheme Was Exposed
President Trump lifted the hold on U.S. military assistance
to Ukraine on September 11 after it became clear to the White
House and President Trump that his scheme was exposed.
Overview
As news of the President's hold on military assistance to
Ukraine became public on August 28, Congress, the press, and
the public increased their scrutiny of President Trump's
actions regarding Ukraine, which risked exposing President
Trump's scheme. By this date, the White House had learned that
the Inspector General of the Intelligence Community (ICIG),
Michael Atkinson, had determined that a whistleblower complaint
related to the same Ukraine matters was ``credible'' and an
``urgent concern,'' and, pursuant to the applicable statute,
recommended to the Acting Director of National Intelligence
(DNI), Joseph Maguire, that the complaint should be transmitted
to Congress.
In early September, bipartisan Members of both houses of
Congress--publicly, and privately--expressed concerns to the
White House about the hold on military assistance. On September
9, after months of internal discussion due to growing concern
about the activity of President Trump's personal attorney, Rudy
Giuliani, regarding Ukraine, the Chairs of the Permanent Select
Committee on Intelligence, the Committee on Foreign Affairs,
and the Committee on Oversight and Reform announced a joint
investigation into efforts by President Trump and Mr. Giuliani,
``to improperly pressure the Ukrainian government to assist the
President's bid for reelection,'' including by withholding
Congressionally-appropriated military assistance.
Later that same day, the ICIG notified Chairman Schiff and
Ranking Member Nunes that, despite uniform past practice and a
statutory requirement that credible, ``urgent concern''
complaints be provided to the intelligence committees, the
Acting DNI was nevertheless withholding the whistleblower
complaint from Congress. The Acting DNI later testified that
his office initially withheld the complaint on the advice of
the White House, with guidance from the Department of Justice.
Two days later, on September 11, the President lifted the
hold on the military assistance to Ukraine. Numerous witnesses
testified that they were never aware of any official reason for
why the hold was either implemented or lifted.
Notwithstanding this ongoing inquiry, President Trump has
continued to urge Ukraine to investigate his political rival,
former Vice President Biden. For example, when asked by a
journalist on October 3 what he hoped Ukraine's President would
do about the Bidens in response to the July 25 call, President
Trump responded: ``Well, I would think that, if they were
honest about it, they'd start a major investigation into the
Bidens. It's a very simple answer.'' President Trump reiterated
his affinity for the former Prosecutor General of Ukraine,
Yuriy Lutsenko, whom numerous witnesses described as inept and
corrupt: ``And they got rid of a prosecutor who was a very
tough prosecutor. They got rid of him. Now they're trying to
make it the opposite way.''
Public Scrutiny of President Trump's Hold on Military Assistance for
Ukraine
After news of the President's freeze on U.S. military
assistance to Ukraine became public on August 28, both houses
of Congress increased their ongoing scrutiny of President
Trump's decision.\968\ On September 3, a bipartisan group of
Senators, including Senator Rob Portman and Senator Ron
Johnson, sent a letter to Acting White House Chief of Staff
Mick Mulvaney expressing ``deep concerns'' that the
``Administration is considering not obligating the Ukraine
Security Initiative funds for 2019.''\969\ The Senators' letter
urged that the ``vital'' funds be obligated
``immediately.''\970\ On September 5, the Chairman and Ranking
Member of the House Foreign Affairs Committee sent a letter to
Mr. Mulvaney and Acting Director of the OMB Russell Vought
expressing ``deep concern'' about the continuing hold on
security assistance funding for Ukraine.\971\
On September 5, the Washington Post editorial board
reported concerns that President Trump was withholding military
assistance for Ukraine and a White House meeting in order to
force President Zelensky to announce investigations of Mr.
Biden and purported Ukrainian interference in the 2016 U.S.
election. The Post editorial board wrote:
[W]e're reliably told that the president has a second
and more venal agenda: He is attempting to force Mr.
Zelensky to intervene in the 2020 U.S. presidential
election by launching an investigation of the leading
Democratic candidate, Joe Biden. Mr. Trump is not just
soliciting Ukraine's help with his presidential
campaign; he is using U.S. military aid the country
desperately needs in an attempt to extort it.
It added:
The White House claims Mr. Trump suspended Ukraine's
military aid in order for it [sic] be reviewed. But, as
CNN reported, the Pentagon has already completed the
study and recommended that the hold be lifted. Yet Mr.
Trump has not yet acted. If his recalcitrance has a
rationale, other than seeking to compel a foreign
government to aid his reelection, the president has yet
to reveal it.\972\
On the same day that the Washington Post published its
editorial, Senators Christopher Murphy and Ron Johnson visited
Kyiv, and met with President Zelensky. They were accompanied by
Ambassador Bill Taylor and Counselor for Political Affairs
David Holmes of U.S. Embassy Kyiv. President Zelensky's ``first
question to the Senators was about the withheld security
assistance.''\973\ Ambassador Taylor testified that both
Senators ``stressed that bipartisan support for Ukraine in
Washington was Ukraine's most important strategic asset and
that President Zelensky should not jeopardize that bipartisan
support by getting drawn into U.S. domestic politics.''\974\
As Senator Johnson and Senator Murphy later recounted, the
Senators sought to reassure President Zelensky that there was
bipartisan support in Congress for providing Ukraine with
military assistance for Ukraine and that they would continue to
urge President Trump to lift the hold--as Senator Johnson had
already tried, unsuccessfully, before traveling to
Ukraine.\975\
Three Committees Announced Joint Investigation of President's Scheme
On September 9, the Chairs of the House Intelligence
Committee, the Committee on Foreign Affairs, and the Committee
on Oversight and Reform publicly announced a joint
investigation of the scheme by President Trump and Mr. Giuliani
``to improperly pressure the Ukrainian government to assist the
President's bid for reelection.''\976\ The Committees had been
planning and coordinating this investigation since early
summer, after growing public scrutiny of Mr. Giuliani's
activities in Ukraine and questions about Ambassador
Yovanovitch's abrupt removal following a public smear campaign
targeting her.
In a letter sent to White House Counsel Pat Cipollone the
same day, the three Chairs stated that President Trump and Mr.
Giuliani ``appear to have acted outside legitimate law
enforcement and diplomatic channels to coerce the Ukrainian
government into pursuing two politically-motivated
investigations under the guise of anti-corruption activity''--
investigations into purported Ukrainian interference in the
2016 election and Vice President Biden and his son.\977\
With respect to the hold on Ukraine military assistance,
the Chairs observed that ``[i]f the President is trying to
pressure Ukraine into choosing between defending itself from
Russian aggression without U.S. assistance or leveraging its
judicial system to serve the ends of the Trump campaign, this
would represent a staggering abuse of power, a boon to Moscow,
and a betrayal of the public trust.''\978\ The Chairs requested
that the White House preserve all relevant records and produce
them by September 16, including the transcript of the July 25
call between President Trump and President Zelensky.\979\
On the same day, the Chairs of the three Committees sent a
similar letter to Secretary of State Mike Pompeo seeking the
preservation and production of all relevant records at the
Department of State by September 16.\980\ To date, and as
explained more fully in Section II, Secretary Pompeo has not
produced a single document sought by the Committees pursuant to
a lawful subpoena.
NSC Senior Director for Russia and Europe Timothy Morrison
recalled seeing a copy of the letter that was sent by the three
Chairs to the White House.\981\ He also recalled that the three
Committees' Ukraine investigation was discussed at a meeting of
senior-level NSC staff soon after it was publicly
announced.\982\ The NSC's legislative affairs staff issued a
notice of the investigation to NSC staff members, although it
is unclear exactly when.\983\ NSC Director for Ukraine
Alexander Vindman recalled discussions among NSC staff members,
including Mr. Morrison's deputy, John Erath, that the
investigation ``might have the effect of releasing the hold''
on Ukraine military assistance because it would be
``potentially politically challenging'' for the Administration
to ``justify that hold'' to the Congress.\984\
Inspector General Notified Intelligence Committee that the
Administration Was Withholding Whistleblower Complaint
Later that same day, September 9, Inspector General
Atkinson sent a letter to Chairman Schiff and Ranking Member
Nunes notifying them that an Intelligence Community
whistleblower had filed a complaint with the ICIG on August
12.\985\ Pursuant to a statute governing whistleblower
disclosures, the Inspector General--after a condensed,
preliminary review--had determined that the complaint
constituted an ``urgent concern'' and that its allegations
appeared to be ``credible.''\986\ The Inspector General's
September 9 letter did not disclose the substance or topic of
the whistleblower complaint.
Contrary to uniform past practice and the clear
requirements of the whistleblower statute, Acting DNI Maguire
withheld the whistleblower complaint based on advice from the
White House.\987\ Acting DNI Maguire also relied upon an
unprecedented intervention by the Department of Justice into
Intelligence Community whistleblower matters to overturn the
ICIG's determination based on a preliminary investigation.\988\
The White House had been aware of the whistleblower
complaint weeks prior to the ICIG's letter of September 9.\989\
Acting DNI Maguire testified that, after receiving the
whistleblower complaint from the Inspector General on August
26, his office contacted the White House Counsel's Office for
guidance.\990\
Consistent with Acting DNI Maguire's testimony, the New
York Times reported that in late August, Mr. Cipollone and
National Security Council Legal Advisor John Eisenberg
personally briefed President Trump about the complaint's
existence--and explained to the President that they believed
the complaint could be withheld on executive privilege
grounds.\991\ The report alleged that Mr. Cipollone and Mr.
Eisenberg ``told Mr. Trump they planned to ask the Justice
Department's Office of Legal Counsel to determine whether they
had to disclose the complaint to lawmakers.''\992\
On September 10, Chairman Schiff wrote to Acting DNI
Maguire to express his concern about the Acting DNI's
``unprecedented departure from past practice'' in withholding
the whistleblower complaint from the Congressional intelligence
committees notwithstanding his ``express obligations under the
law'' and the Inspector General's determination.\993\ Chairman
Schiff observed that the ``failure to transmit to the Committee
an urgent and credible whistleblower complaint, as required by
law, raises the prospect that an urgent matter of a serious
nature is being purposefully concealed from the
Committee.''\994\
Also on September 10, Ambassador John Bolton resigned from
his position as National Security Advisor. Ambassador Bolton's
deputy, Dr. Charles Kupperman, became the Acting National
Security Advisor. The Committee was unable to determine if
Ambassador Bolton's departure related to the matters under
investigation because neither he nor Dr. Kupperman agreed to
appear for testimony as part of this inquiry.
On September 13, the Office of the Director of National
Intelligence (ODNI) General Counsel informed the Committee that
DOJ had overruled the ICIG's determination, and that the ODNI
could not transmit the complaint to the Committee at its
discretion because it involved ``potentially privileged
communications by persons outside the Intelligence
Community''--presumably presidential communications.\995\ In
response, Chairman Schiff issued a subpoena to the Acting DNI
on September 13 and announced to the public that ODNI was
withholding a ``credible'' whistleblower complaint of ``urgent
concern.''\996\ Following intense pressure from the public and
Congress, on September 25, the White House released the
complaint to the intelligence committees and the July 25 call
record to the public.\997\
President Trump Lifted the Hold on Military Assistance for Ukraine
On September 11--two days after the three Committees
launched their investigation into President Trump's scheme, and
one day after Chairman Schiff requested that Acting DNI Maguire
produce a copy of the whistleblower complaint--President Trump
lifted the hold on military assistance for Ukraine.
On the evening of September 11, prior to lifting the hold,
President Trump met with Vice President Mike Pence, Mr.
Mulvaney, and Senator Portman to discuss the hold.\998\ Around
8:00 p.m. on September 11, the Chief of Staff's office informed
Dr. Kupperman that the hold had been lifted.\999\
Just like there was no official explanation for why the
hold on Ukraine security assistance was implemented, numerous
witnesses testified that they were not provided with a reason
for why the hold was lifted on September 11.\1000\ For example,
Deputy Assistant Secretary of Defense Laura Cooper testified
that President Trump's lifting of the hold ``really came quite
out of the blue . . . It was quite abrupt.''\1001\ Jennifer
Williams, Special Advisor to the Vice President for Europe and
Russia, testified that from the time when she first learned
about the hold on July 3 until it was lifted on September 11,
she never came to understand why President Trump ordered the
hold.\1002\
OMB Deputy Associate Director of National Security Programs
Mark Sandy, who was the senior career official overseeing the
administration of some of the Ukraine military assistance, only
learned of a possible rationale for the hold in early
September--after the Acting DNI had informed the White House
about the whistleblower complaint.\1003\ Mr. Sandy testified
that he could not recall another instance ``where a significant
amount of assistance was being held up'' and he ``didn't have a
rationale for as long as I didn't have a rationale in this
case.''\1004\ However, in ``early September,'' approximately
two months after President Trump had implemented the hold, and
several weeks after the White House learned of the
whistleblower complaint, Mr. Sandy received an email from OMB
Associate Director of National Security Programs Michael
Duffey. For the first time, it ``attributed the hold to the
President's concern about other countries not contributing more
to Ukraine'' and requested ``information on what additional
countries were contributing to Ukraine.''\1005\
Mr. Sandy testified that he was not aware of any other
countries committing to provide more financial assistance to
Ukraine prior to the lifting of the hold on September 11.\1006\
According to Lt. Col. Vindman, none of the ``facts on the
ground'' changed before the President lifted the hold.\1007\
After the Hold was Lifted, Congress Was Forced To Pass a Law To Ensure
All of the Military Aid Could Be Distributed to Ukraine
The lengthy delay created by the hold on Ukraine military
assistance prevented the Department of Defense from spending
all of the Congressionally-appropriated funds by the end of the
fiscal year, which meant that the funds would expire on
September 30 because unused funds do not roll over to the next
fiscal year.\1008\ This confirmed the fears expressed by Ms.
Cooper, Mr. Sandy, and others related to the illegal
impoundment of Congressionally-mandated funding--concerns that
were discussed in some depth within the relevant agencies in
late July and throughout August.\1009\
Prior to the release of the funds, DOD's internal analysis
raised concerns that up to $100 million of military assistance
could go unspent as a result of the hold imposed by the
President.\1010\ Ultimately, approximately $35 million of
Ukraine military assistance--14% of the total funds--remained
unspent by the end of fiscal year 2019.\1011\ Typically, DOD
averages between 2 and 5 percent unspent funds for similar
programs, substantially less than the 14 percent left unspent
in this case.\1012\
In order to ensure that Ukraine did not permanently lose
$35 million of the critical military assistance frozen by the
White House,\1013\ Congress passed a provision on September
27--three days before funds were set to expire--to ensure that
the remaining $35 million in 2019 military assistance to
Ukraine could be spent.\1014\ Ms. Cooper testified that such an
act of Congress was unusual--indeed, she had never heard of
funding being extended in this manner.\1015\
As of November 2019, Pentagon officials confirmed that the
$35 million in security assistance originally held by the
President and extended by Congress had still yet to be
disbursed. When asked for an explanation, the Pentagon only
confirmed that the funds had not yet been spent but declined to
say why.\1016\
Pressure to Announce Investigations Continued After the Hold Was Lifted
Before President Trump lifted the hold on security
assistance, Ukrainian officials had relented to the American
pressure campaign to announce the investigations and had
scheduled President Zelensky to appear on CNN.\1017\ Even after
President Trump lifted the hold on September 11, President
Zelensky did not immediately cancel his planned CNN
interview.\1018\
On September 12, Ambassador Taylor personally informed
President Zelensky and the Ukrainian foreign minister that
President Trump's hold on military assistance had been
lifted.\1019\ Ambassador Taylor remained concerned, however,
that ``there was some indication that there might still be a
plan for the CNN interview in New York'' during which President
Zelensky would announce the investigations that President Trump
wanted Ukraine to pursue.\1020\ Ambassador Taylor testified
that he ``wanted to be sure that that didn't happen, so I
addressed it with Zelensky's staff.''\1021\
On September 13, a staff member at the U.S. Embassy in Kyiv
texted Mr. Holmes to relay a message that ``Sondland said the
Zelensky interview is supposed to be today or Monday, and they
plan to announce that a certain investigation that was on hold'
will progress.''\1022\ The Embassy Kyiv staffer stated that he
``did not know if this was decided or if Sondland was
advocating for it. Apparently he's been discussing this with
Yermak.''\1023\
On September 13, during a meeting in President Zelensky's
office, Ukrainian presidential aide Andriy Yermak ``looked
uncomfortable'' when Ambassador Taylor sought to confirm that
there were no plans for President Zelensky to announce the
investigations during a CNN interview.\1024\ Although President
Zelensky's National Security Advisor Oleksandr Danyliuk
indicated that there were no plans for President Zelensky to do
the CNN interview, Ambassador Taylor was still concerned after
he and Mr. Holmes saw Mr. Yermak following the meeting.\1025\
According to Ambassador Taylor, Mr. Yermak's ``body language
was such that it looked to me like he was still thinking they
were going to make that statement.''\1026\ Mr. Holmes also
recalled that when he and Ambassador Taylor ran into Mr. Yermak
following the meeting, Ambassador Taylor ``stressed the
importance of staying out of U.S. politics and said he hoped no
interview was planned,'' but ``Mr. Yermak shrugged in
resignation and did not answer, as if to indicate he had no
choice.''\1027\
That same day, September 13, President Zelensky reportedly
met with CNN's Fareed Zakaria, who was in Kyiv to moderate the
Yalta European Strategy Conference.\1028\ During the meeting
with Mr. Zakaria, President Zelensky did not cancel his planned
CNN interview.\1029\
Conflicting advice prompted the Ukrainian foreign minister
to observe in a meeting with Ambassador Volker, Ambassador
Taylor, and Deputy Assistant Secretary of State George Kent,
``You guys are sending us different messages in different
channels.''\1030\
For example, at a September 14 meeting in Kyiv attended by
Ambassador Volker, Mr. Yermak, and the Ukrainian foreign
minister, Ambassador Volker stated that when the two Presidents
finally meet, ``it's important that President Zelensky give the
messages that we discussed before,'' apparently referring to
President Zelensky's ``willingness to open investigations in
the two areas of interest to the President and that had been
pushed previously by Rudy Giuliani.''\1031\ Ambassador Taylor,
however, replied: ``Don't do that.''\1032\
On September 18 or 19, President Zelensky cancelled his
scheduled interview with CNN.\1033\ Although President Zelensky
did not publicly announce the investigations that President
Trump wanted, he remains under pressure from President Trump,
particularly because he requires diplomatic, financial, and
military backing from the United States, the most powerful
supporter of Ukraine. That pressure continues to this day. As
Mr. Holmes testified:
[A]lthough the hold on the security assistance may
have been lifted, there were still things they wanted
that [the Ukrainians] weren't getting, including a
meeting with the President in the Oval Office. Whether
the hold--the security assistance hold continued or
not, Ukrainians understood that that's something the
President wanted, and they still wanted important
things from the President.
And I think that continues to this day. I think
they're being very careful. They still need us now
going forward. In fact, right now, President Zelensky
is trying to arrange a summit meeting with President
Putin in the coming weeks, his first face to face
meeting with him to try to advance the peace process.
He needs our support. He needs President Putin to
understand that America supports Zelensky at the
highest levels. So this doesn't end with the lifting of
the security assistance hold. Ukraine still needs us,
and as I said, still fighting this war this very
day.\1034\
Vice President Pence Spoke to President Zelensky
On September 18, approximately one week before President
Trump was scheduled to meet with President Zelensky at the
United Nations General Assembly in New York, Vice President
Pence spoke with President Zelensky by telephone.\1035\
According to Ms. Williams, during the call, Vice President
Pence ``reiterat[ed] the release of the funds'' and ``ask[ed] a
bit more about . . . how Zelensky's efforts were going.''\1036\
On November 26, Ms. Williams submitted a classified
addendum to her hearing testimony on November 19 related to
this telephone call. According to Ms. Williams' counsel, the
Office of the Vice President informed Ms. Williams' counsel
that certain portions of the September 18 call, including the
additional information in Ms. Williams' addendum, are
classified. The Committee has requested that the Office of the
Vice President conduct a declassification review so that the
Committee may share this additional information regarding the
substance of the September 18 call publicly. On October 9, Vice
President Pence told reporters, ``I'd have no objection'' to
the White House releasing the transcript of his calls with
President Zelensky and said that ``we're discussing that with
White House counsel as we speak.''\1037\ In a November 7
interview with Fox Business, Vice President Pence reiterated,
``I have no objection at all'' to releasing records of his
calls.\1038\
President Trump and Rudy Giuliani, Undeterred, Continued to Solicit
Foreign Interference in Our Elections
On September 19, Rudy Giuliani was interviewed by Chris
Cuomo on CNN. During the interview, Mr. Giuliani confirmed that
he had urged Ukraine to investigate ``the allegations that
there was interference in the election of 2016, by the
Ukrainians, for the benefit of Hillary Clinton[.]'' When asked
specifically if he had asked Ukraine to look into Vice
President Biden, Mr. Giuliani replied immediately, ``of course
I did.''
Seconds later, Mr. Giuliani attempted to clarify his
admission, insisting that he had not asked Ukraine to
investigate Vice President Biden but instead ``to look into the
allegations that related to my client [President Trump], which
tangentially involved Joe Biden in a massive bribery scheme.''
Mr. Giuliani insisted that his conduct was appropriate, telling
Mr. Cuomo later in the interview that ``it is perfectly
appropriate for a President to say to a leader of a foreign
country, investigate this massive bribe . . . that was paid by
a former Vice President.''\1039\
President Trump also has continued to publicly urge
President Zelensky to launch an investigation of Vice President
Biden and alleged 2016 election interference by Ukraine. On
September 23, in a public press availability, President Trump
stated:
I put no pressure on them whatsoever. I could have. I
think it would probably, possibly, have been okay if I
did. But I didn't. I didn't put any pressure on them
whatsoever. You know why? Because they want to do the
right thing.\1040\
On September 24, in public remarks upon arriving at the
opening session of the U.N. General Assembly, President Trump
stated: ``What Joe Biden did for his son, that's something they
should be looking at.''\1041\
On September 25--in a joint public press availability with
President Zelensky--President Trump stated that ``I want him to
do whatever he can'' in reference to the investigation of the
Biden family. He added, ``Now, when Biden's son walks away with
millions of dollars from Ukraine, and he knows nothing, and
they're paying him millions of dollars, that's corruption.''
President Trump added, ``He [President Zelensky] was elected--I
think, number one--on the basis of stopping corruption, which
unfortunately has plagued Ukraine. And if he could do that,
he's doing, really, the whole world a big favor. I know--and I
think he's going to be successful.''\1042\
On September 30, during his remarks at the swearing-in
ceremony of Labor Secretary Eugene Scalia, President Trump
stated:
Now, the new President of Ukraine ran on the basis of
no corruption. That's how he got elected. And I believe
that he really means it. But there was a lot of
corruption having to do with the 2016 election against
us. And we want to get to the bottom of it, and it's
very important that we do.\1043\
On October 2, in a public press availability, President
Trump discussed the July 25 call with President Zelensky and
stated that ``the conversation was perfect; it couldn't have
been nicer.'' He added:
The only thing that matters is the transcript of the
actual conversation that I had with the President of
Ukraine. It was perfect. We're looking at
congratulations. We're looking at doing things
together. And what are we looking at? We're looking at
corruption. And, in, I believe, 1999, there was a
corruption act or a corruption bill passed between
both--and signed--between both countries, where I have
a duty to report corruption. And let me tell you
something: Biden's son is corrupt, and Biden is
corrupt.\1044\
On October 3, in remarks before he departed on Marine One,
President Trump expressed his ``hope'' that Ukraine would
investigate Mr. Biden and his son. Specifically, President
Trump stated that he had hoped--after his July 25
conversation--that Ukraine would ``start a major investigation
into the Bidens.'' The President also stated that ``by the way,
likewise, China should start an investigation into the Bidens,
because what happened in China is just about as bad as what
happened with--with Ukraine.'' He addressed the corrupt
prosecutor general, Yuriy Lutsenko, who had recently been
removed by Parliament: ``And they got rid of a prosecutor who
was a very tough prosecutor. They got rid of him. Now they're
trying to make it the opposite way.\1045\
The next day, on October 4, in remarks before he departed
on Marine One, the President again said:
When you look at what Biden and his son did, and when
you look at other people--what they've done. And I
believe there was tremendous corruption with Biden, but
I think there was beyond--I mean, beyond corruption--
having to do with the 2016 campaign, and what these
lowlifes did to so many people, to hurt so many people
in the Trump campaign--which was successful, despite
all of the fighting us. I mean, despite all of the
unfairness.\1046\
President Trump reiterated his willingness to solicit
foreign assistance related to his personal interests: ``Here's
what's okay: If we feel there's corruption, like I feel there
was in the 2016 campaign--there was tremendous corruption
against me--if we feel there's corruption, we have a right to
go to a foreign country.''\1047\ President Trump added that
asking President Xi of China to investigate the Bidens ``is
certainly something we can start thinking about.''\1048\
Consistent with the President's remarks after this inquiry
began, Ambassador Volker understood that references to fighting
``corruption'' in Ukraine, when used by President Trump and Mr.
Giuliani, in fact referred to the two investigations into
``Burisma''--and former Vice President Biden--and the 2016
election interference that President Trump sought to benefit
his reelection efforts.\1049\
The President's Scheme Undermined U.S. Anti-Corruption Efforts in
Ukraine
Rather than combatting corruption in Ukraine, President
Trump's ongoing efforts to urge Ukraine to pursue an
investigation into former Vice President Biden undermine
longstanding U.S. anti-corruption policy, which encourages
countries to refrain from using the criminal justice system to
investigate political opponents. When it became clear that
President Trump was pressuring Ukraine to investigate his
political rival, career public servants charged with
implementing U.S. foreign policy in a non-partisan manner, such
as Lt. Col. Vindman and Ambassador Taylor, communicated to
President Zelensky and his advisors that Ukraine should avoid
getting embroiled in U.S. domestic politics.\1050\
Mr. Kent, an anti-corruption and rule of law expert,
explained that U.S. anti-corruption efforts prioritize
``building institutional capacity so that the Ukrainian
Government has the ability to go after corruption and
effectively investigate, prosecute, and judge alleged criminal
activities using appropriate institutional mechanisms, that is,
to create and follow the rule of law.\1051\
Mr. Holmes concurred:
[O]ur longstanding policy is to encourage them
[Ukraine] to establish and build rule of law
institutions, that are capable and that are independent
and that can actually pursue credible allegations.
That's our policy. We've been doing that for quite some
time with some success. So focusing on [particular]
cases, including [] cases where there is an interest of
the President, it's just not part of what we've done.
It's hard to explain why we would do that.\1052\
Mr. Kent emphasized that when foreign government officials
``hear diplomats on the ground saying one thing, and they hear
other U.S. leaders saying something else,'' it raises concerns
about the United States' credibility on anti-corruption
efforts.\1053\ Ambassador Taylor agreed, stating that ``[o]ur
credibility is based on a respect for the United States'' and
``if we damage that respect, then it hurts our credibility and
makes it more difficult for us to do our jobs.''\1054\
Mr. Kent, like many other witnesses, explained that urging
Ukraine to engage in ``selective politically associated
investigations or prosecutions'' undermined the rule of law
more generally:
As a general principle, I do not believe the United
States should ask other countries to engage in
selective politically associated investigations or
prosecutions against opponents of those in power
because such selective actions undermine the rule of
law, regardless of the country.\1055\
Mr. Kent agreed that pressuring Ukraine to conduct
political investigations is not a part of U.S. foreign policy
to promote the rule of law in Ukraine and around the
world.\1056\ Mr. Kent concluded that the President's request
for investigations ``went against U.S. policy'' and ``would've
undermined the rule of law and our longstanding policy goals in
Ukraine, as in other countries, in the post-Soviet
space.''\1057\
These conflicting messages came to a head at a September 14
meeting between American and Ukrainian officials in Kyiv.
During that meeting, Ambassador Volker advised Mr. Yermak about
the ``potential problems''' with investigations that the
Zelensky administration was contemplating into former Ukrainian
President Petro Poroshenko.\1058\ Mr. Yermak retorted, ``what,
you mean like asking us to investigate Clinton and
Biden?''\1059\ Ambassador Volker did not respond.\1060\
SECTION I ENDNOTES
1. Yovanovitch Hearing Tr. at 16-17.
2. Kateryna Handziuk, Ukrainian Activist, Dies From Acid
Attack, New York Times (Nov. 5, 2018) (online at
www.nytimes.com/2018/11/05/world/europe/kateryna-handziuk-dies-
ukraine.html).
3. Yovanovitch Hearing Tr. at 30-31.
4. U.S. Embassy in Ukraine, Department of State, Ambassador
Yovanovitch's Remarks at a Women of Courage Reception in Honor
of Kateryna Handziuk (Apr. 24, 2019) (online at https://
ua.usembassy.gov/ambassador-yovanovitchs-remarks-at-a-women-of-
courage-reception-in-honor-of-kateryna-handziuk/).
5. U.S. Embassy in Ukraine, Department of State, Ambassador
Yovanovitch's Remarks at a Women of Courage Reception in Honor
of Kateryna Handziuk (Apr. 24, 2019) (online at https://
ua.usembassy.gov/ambassador-yovanovitchs-remarks-at-a-women-of-
courage-reception-in-honor-of-kateryna-handziuk/).
6. Yovanovitch Hearing Tr. at 31.
7. Id. at 31-32.
8. Id. at 32.
9. Id. at 31.
10. Id. at 31-32.
11. Giuliani to Join Trump's Legal Team, New York Times
(April 19, 2018) (online at www.nytimes.com/2018/04/19/us/
politics/giuliani-trump.html).
12. Letter from John M. Dowd, Counsel to Igor Fruman and
Lev Parnas, to Committee Staff (Oct. 3, 2019).
13. Department of Justice, Lev Parnas and Igor Fruman
Charged with Conspiring to Violate Straw and Foreign Donor Bans
(Oct. 10, 2019) (online at www.justice.gov/usao-sdny/pr/lev-
parnas-and-igor-fruman-charged-conspiring-violate-straw-and-
foreign-donor-bans).
14. Hill Dep. Tr. at 59.
15. Yovanovitch Dep. Tr. at 28-29.
16. Ukraine Ousts Victor Shokin, Top Prosecutor, and
Political Stability Hangs in the Balance, New York Times (Mar.
29, 2016) (online at www.nytimes.com/2016/03/30/world/europe/
political-stability-in-the-balance-as-ukraine-ousts-top-
prosecutor.html).
17. Kent Dep. Tr. at 45.
18. Yovanovitch Dep. Tr. at 27-28.
19. Id. at 31-32.
20. Id. at 21.
21. Id. at 32-33, 38 (``I think that he felt that I and the
embassy were effective at helping Ukrainians who wanted reform,
Ukrainians who wanted to fight against corruption, and he did
not--you know, that was not in his interest.'').
22. Id. at 30.
23. Holmes Dep. Tr. at 14.
24. Kent-Taylor Hearing Tr. at 25.
25. Id. at 132.
26. Morrison-Volker Hearing Tr. at 27.
27. Nickolay Kapitonenko, an advisor to the Ukrainian
Parliament's Foreign Policy Committee, described Giuliani as a
``mythical link to the U.S.'' who is viewed as ``an extension
of Trump.'' Giuliani Sits at the Center of the Ukraine
Controversy, Wall Street Journal (Sept. 26, 2019) (online at
www.wsj.com/articles/giuliani-sits-at-the-center-of-the-
ukraine-controversy-11569546774); David Sakvarelidze, a former
Ukrainian deputy prosecutor general, stated, ``Lutsenko was
trying to save his political skin by pretending to be Trumpist
at the end of his career.'' Meet the Ukrainian Ex-Prosecutor
Behind the Impeachment Furor, New York Times (Oct. 5, 2019)
(online at www.nytimes.com/2019/10/05/world/europe/ukraine-
prosecutor-trump.html).
28. Yovanovitch Dep. Tr. at 30.
29. Donald J. Trump, Twitter (Jan. 17, 2019) (online at
https://twitter.com/realdonaldtrump/status/1086096691613323265)
(``Gregg Jarrett: `Mueller's prosecutors knew the `Dossier' was
the product of bias and deception.' It was a Fake, just like so
much news coverage in our Country. Nothing but a Witch Hunt,
from beginning to end!'').
30. Office of the Director of National Intelligence,
Background to ``Assessing Russian Activities and Intentions in
Recent US Elections'': The Analytic Process and Cyber Incident
Attribution (Jan. 6, 2017) (online at www.dni.gov/files/
documents/ICA_2017_01.pdf); Senate Select Committee on
Intelligence, Russian Active Measures Campaigns and
Interference in the 2016 U.S. Election (May 8, 2018) (online at
www.intelligence.senate.gov/publications/report-select-
committee-intelligence-united-states-senate-russian-active-
measures); House Permanent Select Committee on Intelligence,
Report on Russian Active Measures (Mar. 22, 2018) (online at
https://docs.house.gov/meetings/IG/IG00/20180322/108023/HRPT-
115-1_1-p1-U3.pdf); House Permanent Select Committee on
Intelligence, Minority Views (Mar. 26, 2018) (online at https:/
/intelligence.house.gov/uploadedfiles/20180411_-_final_-
_hpsci_minority_ views_on_majority_report.pdf).
31. President Trump's Former National Security Advisor
`Deeply Disturbed' by Ukraine Scandal: `Whole World Is
Watching,' ABC News (Sept. 29, 2019) (online at https://
abcnews.go.com/Politics/president-trumps-national-security-
advisor-deeply-disturbed-ukraine/story?id=65925477).
32. Charges of Ukrainian Meddling? A Russian Operation,
U.S. Intelligence Says, New York Times (Nov. 22, 2019) (online
at www.nytimes.com/2019/11/22/us/politics/ukraine-russia-
interference.html).
33. Hill-Holmes Hearing Tr. at 56-57.
34. Kent Dep. Tr. at 45.
35. Volker Transcribed Interview Tr. at 330.
36. Id. at 330; Explainer: Biden, Allies, Pushed Out
Ukrainian Prosecutor Because He Didn't Pursue Corruption Cases,
USA Today (Oct. 3, 2019) (online at www.usatoday.com/story/
news/politics/2019/10/03/what-really-happened-when-biden-
forced-out-ukraines-top-prosecutor/3785620002/).
37. See, e.g., Ukraine Prosecutor Says No Evidence of
Wrongdoing by Bidens, Bloomberg (May 16, 2019) (online at
www.bloomberg.com/news/articles/2019-05-16/ukraine-prosecutor-
says-no-evidence-of-wrongdoing-by-bidens) (``Hunter Biden did
not violate any Ukrainian laws--at least as of now, we do not
see any wrongdoing. A company can pay however much it wants to
its board . . . Biden was definitely not involved . . . We do
not have any grounds to think that there was any wrongdoing
starting from 2014.'').
38. Notes of Call with Viktor Shokin (Jan. 23, 2019);
Ukraine Prosecutor Says No Evidence of Wrongdoing by Bidens,
Bloomberg (May 16, 2019) (online at www.bloomberg.com/news/
articles/2019-05-16/ukraine-prosecutor-says-no-evidence-of-
wrongdoing-by-bidens).
39. Giuliani Pursued Business in Ukraine While Pushing for
Inquiries for Trump, New York Times (Nov. 27, 2019) (online at
www.nytimes.com/2019/11/27/nyregion/giuliani-ukraine-business-
trump.html); Ukraine Prosecutor Says No Evidence of Wrongdoing
by Bidens, Bloomberg (May 16, 2019) (online at
www.bloomberg.com/news/articles/2019-05-16/ukraine-prosecutor-
says-no-evidence-of-wrongdoing-by-bidens).
40. Notes of Meeting with Yuriy Lutsenko (Jan. 25, 2019);
Ukraine Prosecutor Says No Evidence of Wrongdoing by Bidens,
Bloomberg (May 16, 2019) (online at www.bloomberg.com/news/
articles/2019-05-16/ukraine-prosecutor-says-no-evidence-of-
wrongdoing-by-bidens).
41. Giuliani Pursued Business in Ukraine While Pushing for
Inquiries for Trump, New York Times (Nov. 27, 2019) (online at
www.nytimes.com/2019/11/27/nyregion/giuliani-ukraine-business-
trump.html).
42. Rudy Giuliani, Twitter (Oct. 23, 2019) (online at
https://twitter.com/RudyGiuliani/status/1187168034835894272).
43. Rudy Giuliani, Twitter (Oct. 30, 2019) (online at
https://twitter.com/RudyGiuliani/status/1189667101079932928).
44. Hill-Holmes Hearing Tr. at 19.
45. As Russia Collusion Fades, Ukrainian Plot to Help
Clinton Emerges, The Hill (Mar. 20, 2019) (online at https://
thehill.com/opinion/campaign/435029-as-russia-collusion-fades-
ukrainian-plot-to-help-clinton-emerges).
46. Ukraine Prosecutor General Lutsenko Admits U.S.
Ambassador Didn't Give Him a Do Not Prosecute List, The
Ukrainian (Apr. 18, 2019) (online at www.unian.info/politics/
10520715-ukraine-prosecutor-general-lutsenko-admits-u-s-
ambassador-didn-t-give-him-a-do-not-prosecute-list.html).
47. As Russia Collusion Fades, Ukrainian Plot to Help
Clinton Emerges, The Hill (Mar. 20, 2019) (online at https://
thehill.com/opinion/campaign/435029-as-russia-collusion-fades-
ukrainian-plot-to-help-clinton-emerges).
48. Yovanovitch Dep. Tr. at 21, 37.
49. AT&T Document Production, Bates
ATTHPSCI_20190930_00768-ATTHPSCI_20190930_00772,
ATTHPSCI_20190930_00775. The Committee did not subpoena the
call detail records of any member of Congress or staff,
including Ranking Member Devin Nunes, nor of any journalist,
including John Solomon. To the extent that congressional
members or staff, or journalists, appear in the report, call
records indicate that they were in contact with individuals of
interest to the investigation. A subpoena served to the White
House requesting certain call records was obstructed in full by
President Trump. Nevertheless, the Committee's investigation
into these and other call records remains ongoing.
50. As Russia Collusion Fades, Ukrainian Plot to Help
Clinton Emerges, The Hill (Mar. 20, 2019) (online at https://
thehill.com/opinion/campaign/435029-as-russia-collusion-fades-
ukrainian-plot-to-help-clinton-emerges).
51. Department of Justice, Lev Parnas and Igor Fruman
Charged with Conspiring to Violate Straw and Foreign Donor Bans
(Oct. 10, 2019) (online at www.justice.gov/usao-sdny/pr/lev-
parnas-and-igor-fruman-charged-conspiring-violate-straw-and-
foreign-donor-bans) (alleging that in May and June 2018, Mr.
Parnas sought the assistance of an unnamed congressman in
causing the removal or recall of the then-U.S. ambassador to
Ukraine).
52. AT&T Document Production, Bates
ATTHPSCI_20190930_00775.
53 Donald J. Trump, Twitter (Mar. 20, 2019) (online at
https://twitter.com/realdonaldtrump/status/
1108559080204001280).
54. Rudy Giuliani, Twitter (Mar. 22, 2019) (online at
https://twitter.com/RudyGiuliani/status/1109117167176466432);
Giuliani Slams Mueller Leak, Fox News (Apr. 7, 2019) (online at
https://www.foxnews.com/transcript/giuliani-slams-mueller-
leak).
55. Donald Trump, Jr., Twitter (Mar. 24, 2019) (online at
https://twitter.com/donaldjtrumpjr/status/1109850575926108161).
56. Kent Dep. Tr. at 57-58.
57. Id. at 178.
58. Yovanovitch Dep. Tr. at 62.
59. Hale Dep. Tr. at 37-38.
60. Id. at 99-100.
61. Yovanovitch Dep. Tr. at 63-64.
62. Hale Dep. Tr. at 27.
63. Yovanovitch Dep. Tr. at 124.
64. Id. at 267-268.
65. Id. at 268.
66. Email from [Redacted] to S_All (Mar. 26, 2019) (online
at www.americanoversight.org/wp-content/uploads/2019/11/
AO_State_Ukraine_Docs_11-22.pdf); Email from Operations Center
to [Redacted] (Mar. 29, 2019) (online at
www.americanoversight.org/wp-content/uploads/2019/11/
AO_State_Ukraine_Docs_11-22.pdf). (The same State Department
records show that Secretary Pompeo was scheduled to have a
secure call with Rep. Nunes on April 1, 2019.); Email from
Operations Center to [Redacted] (Mar. 29, 2019) (online at
www.americanoversight.org/wp-content/uploads/2019/11/
AO_State_Ukraine_Docs_11-22.pdf); Email from [Redacted] to
S_Scheduling (Mar. 28, 2019) (online at
www.americanoversight.org/wp-content/uploads/2019/11/
AO_State_Ukraine_Docs_11-22.pdf); Hale Dep. Tr. at 34 (stating
that Secretary Pompeo spoke with Mr. Giuliani on March 28 and
March 29); AT&T Document Production, Bates
ATTHPSCI_20190930_02034-ATTHPSCI_20190930_02053,
ATTHPSCI_20190930_03538-ATTHPSCI_20190930--03539.
67. Joe Biden's 2020 Ukrainian Nightmare: A Closed Probe is
Revived, The Hill (Apr. 1, 2019) (online at https://
thehill.com/opinion/white-house/436816-joe-bidens-2020-
ukrainian-nightmare-a-closed-probe-is-revived).
68. Donald Trump, Jr., Twitter (Apr. 2, 2019) (online at
https://twitter.com/donaldjtrumpjr/status/1113046659456528385).
69. AT&T Document Production, Bates
ATTHPSCI_20190930_00848-ATTHPSCI_20190930_00884. Mr. Parnas
also had an aborted call that lasted 5 seconds on April 5, 2019
with an aide to Rep. Devin Nunes on the Intelligence Committee,
Derek Harvey. Id. at Bates ATTHPSCI_20190930_00876. Call
records obtained by the Committees show that Mr. Parnas and Mr.
Harvey had connected previously, including a four minute 42
second call on January 31, 2019, a one minute 7 second call on
February 4, and a one minute 37 second call on February 7,
2019. Id. at Bates ATTHPSCI_20190930_00617,
ATTHPSCI_20190930_00630, ATTHPSCI_20190930_00641. As explained
later in this Chapter, Rep. Nunes would connect separately by
phone on April 10 and 11 with Mr. Giuliani, and on April 12
with Mr. Parnas. Id. at Bates ATTHPSCI_20190930_00913-
ATTHPSCI_20190930_00914; ATTHPSCI_20190930-02125,
ATTHPSCI_20190930-02129.
70. Ukrainian to US Prosecutors: Why Don't You Want Our
Evidence on Democrats?, The Hill (Apr. 7, 2019) (online at
https://thehill.com/opinion/white-house/437719-ukrainian-to-us-
prosecutors-why-dont-you-want-our-evidence-on-democrats).
71. Id.
72. Id.
73. Id.
74. Giuliani Slams Mueller Leak, Fox News (Apr. 7, 2019)
(online at www.foxnews.com/transcript/giuliani-slams-mueller-
leak).
75. Rudy Giuliani, Twitter (Apr. 8, 2019) (online at
https://twitter.com/RudyGiuliani/status/1115171828618731520).
76. Specifically, between April 8 and April 11, phone
records show the following phone contacts:
at least six calls between Mr. Giuliani and Mr.
Parnas (longest duration approximately five minutes), AT&T
Document Production, Bates ATTHPSCI_20190930-02115-
ATTHPSCI_20190930-02131.
at least four calls between Mr. Giuliani and Mr.
Solomon (all on April 8, longest duration approximately one
minute, 30 seconds) AT&T Document Production, Bates
ATTHPSCI_20190930-02114-ATTHPSCI_20190930-02115;
at least nine calls between Mr. Parnas and Mr.
Solomon (longest duration four minutes, 39 seconds) AT&T
Document Production, Bates ATTHPSCI_20190930-00885-
ATTHPSCI_20190930-00906; and
at least three calls between Mr. Parnas and Ms.
Toensing (longest duration approximately six minutes), AT&T
Document Production, Bates ATTHPSCI_20190930-00885-
ATTHPSCI_20190930-00905.
The Committee did not subpoena the call detail records of
any member of Congress or staff, including Ranking Member Devin
Nunes, nor of any journalist, including John Solomon. To the
extent that congressional members or staff, or journalists,
appear in the report, records indicate that they were in
contact with individuals of interest to the investigation. A
subpoena served to the White House requesting certain call
records was obstructed in full by President Trump.
Nevertheless, the Committee's investigation into these and
other call records remains ongoing.
77. Id. at Bates ATTHPSCI_20190930-02125,
ATTHPSCI_20190930-03236.
----------------------------------------------------------------------------------------------------------------
Connecting Duration
Date Time (ET) of Call Caller Recipient
----------------------------------------------------------------------------------------------------------------
04/10/19............................. 12:00:36 0:35 Giuliani, Rudy.......... Nunes, Devin
04/10/19............................. 12:10:35 0:00 Nunes, Devin............ Giuliani, Rudy
04/10/19............................. 12:10:37 0:31 Nunes, Devin............ Giuliani, Rudy
04/10/19............................. 12:11:10 SMS UNKNOWN................. Giuliani, Rudy
04/10/19............................. 12:12:35 2:50 Giuliani, Rudy.......... Nunes, Devin
04/10/19............................. 12:15:38 0:00 Giuliani, Rudy.......... Nunes, Devin
----------------------------------------------------------------------------------------------------------------
78. Id. Bates ATTHPSCI_20190930-00902.
79. Jay Sekulow, personal counsel to President Trump,
stated that the President was disappointed that Mr. diGenova
and Ms. Toensing had to withdraw due to a conflict of interest,
but noted that ``those conflicts do not prevent them from
assisting the President in other legal matters. The President
looks forward to working with them.'' Trump's Legal Team
Remains in Disarray as New Lawyer Will No Longer Represent Him
in Russia Probe, Washington Post (Mar. 25, 2018) (online at
www.washingtonpost.com/politics/in-another-blow-to-trumps-
efforts-to-combat-russia-probe-digenova-will-no-longer-join-
legal-team/2018/03/25/8ac8c8d2-3038-1e8-4fa-
32d48460b955_story.html).
80. For example, between April 1 and April 7, Ms. Toensing
exchanged at least five calls with Mr. Parnas and two calls
with Mr. Giuliani. ATTHPSCI_20190930-02089-ATTHPSCI_20190930-
902110; ATTHPSCI_20190930-00871-ATTHPSCI_20190930-00884. In
addition, on April 10, Ms. Toensing and Mr. Giuliani spoke for
approximately six minutes, 19 seconds. AT&T Document
Production, Bates ATTHPSCI_20190930-02126. Mr. diGenova and Ms.
Toensing were also very active on social media in promoting
these conspiracy theories as well as the false accusations
against Ambassador Yovanovitch. See, e.g., Ryan Saavedra,
Twitter (Mar. 23, 2019) (online at https://twitter.com/
RealSaavedra/status/1109546629672009728); Victoria Toensing,
Twitter (Mar. 21, 2019) (online at https://twitter.com/
VicToensing/status/1108751525239762944); Victoria Toensing,
Twitter (Mar. 24, 2019) (online at https://twitter.com/
VicToensing/status/1109882728101625856).
81. Retainer Letter, diGenova & Toensing, LLP, Yuriy
Lutsenko, and Kostiantyn Kulyk (Apr. 12, 2019); Retainer
Letter, diGenova & Toensing, LLP, Viktor Shokin (Apr. 15,
2019).
82. On April 12, less than a week after the latest piece in
The Hill, Ms. Toensing signed a retainer agreement between
diGenova & Toensing, LLP, Mr. Lutsenko, and his former deputy
Kostiantyn Kulyk, two of the primary sources for Mr. Solomon's
articles. The Committees obtained a copy of this document which
is not signed by the Ukrainians, but a spokesman for Ms.
Toensing and Mr. diGenova confirmed that the firm represented
Mr. Lutsenko. See Giuliani Weighed Doing Business with
Ukrainian Government, Wall Street Journal (Nov. 27, 2019)
(online at www.wsj.com/articles/giuliani-weighed-doing-
business-with-ukrainian-government-11574890951).
The first paragraph of the retainer agreement sets forth
the services to be provided by diGenova & Toensing, LLP to
their Ukrainian clients:
Yurii Lutsenko and Kostiantyn Kulyk (``Clients'')
hereby engage the firm of diGenova & Toensing, LLP
(``Firm'' or ``Attorneys'') to represent them in
connection with recovery and return to the Ukraine
government of funds illegally embezzeled from that
country and providing assistance to meet and discuss
with United States government officials the evidence of
illegal conduct in Ukraine regarding the United States,
for example, interference in the 2016 U.S. elections.
See Retainer Letter, diGenova & Toensing, LLP, Yuriy Lutsenko,
and Kostiantyn Kulyk (Apr. 12, 2019).
The scope of representation--which includes representing
Mr. Lutsenko and Mr. Kulyk in meetings with U.S. officials
regarding Ukrainian interference in the 2016 U.S. elections--
mirrors the allegations reported in The Hill, pursued by Mr.
Giuliani on behalf of President Trump, and pushed by the
President on his July 25 call with President Zelensky.
According to the retainer agreement, Mr. Lutsenko was to pay
diGenova & Toensing, LLP $25,000 per month, plus costs, for
four months for this work. See Retainer Letter, diGenova &
Toensing, LLP, Yuriy Lutsenko, and Kostiantyn Kulyk (Apr. 12,
2019).
On April 12, the same day Ms. Toensing signed the retainer
agreement with Mr. Lutsenko, phone records show contacts
between Ms. Toensing, Mr. Giuliani, and Mr. Parnas, as well as
contacts between Mr. Parnas and Mr. Solomon, and Mr. Parnas and
Rep. Nunes. In addition, among these calls are contacts between
Mr. Giuliani and a phone number associated with the Office of
Management and Budget (OMB), an unidentified number (``-1''),
and a phone number associated with the White House:
----------------------------------------------------------------------------------------------------------------
Connecting Duration
Date Time (ET) of Call Caller Recipient Source
----------------------------------------------------------------------------------------------------------------
04/12/19...................... 9:48:57 0:24 Toensing, Parnas, Lev..... AT&T Document
Victoria. Production, Bates
ATTHPSCI_20190930-00
908
04/12/19...................... 10:40:19 3:25 Parnas, Lev..... Toensing, AT&T Document
Victoria. Production, Bates
ATTHPSCI_20190930-00
909
04/12/19...................... 11:05:25 0:03 OMB-Associated Giuliani, Rudy.. AT&T Document
Phone Number. Production, Bates
ATTHPSCI_20190930-02
134
04/12/19...................... 11:05:39 12:10 ``-1''.......... Giuliani, Rudy.. AT&T Document
Production, Bates
ATTHPSCI_20190930-02
134
04/12/19...................... 13:13:49 0:12 Giuliani, Rudy.. White House AT&T Document
Phone Number. Production, Bates
ATTHPSCI_20190930-02
135
04/12/19...................... 13:18:46 0:07 Toensing, Giuliani, Rudy.. AT&T Document
Victoria. Production, Bates
ATTHPSCI_20190930-02
135
04/12/19...................... 13:26:54 0:24 Giuliani Parnas, Lev..... AT&T Document
Partners. Production, Bates
ATTHPSCI_20190930-00
911
04/12/19...................... 14:11:22 0:03 ``-1''.......... Giuliani, Rudy.. AT&T Document
Production, Bates
ATTHPSCI_20190930-02
136
04/12/19...................... 14:11:27 0:03 OMB-Associated Giuliani, Rudy.. AT&T Document
Phone Number. Production, Bates
ATTHPSCI_20190930-02
136
04/12/19...................... 14:17:46 0:07 Toensing, Parnas, Lev..... AT&T Document
Victoria. Production, Bates
ATTHPSCI_20190930-00
912
04/12/19...................... 15:09:22 0:02 Parnas, Lev..... Giuliani, Rudy.. AT&T Document
Production, Bates
ATTHPSCI_20190930-00
912
04/12/19...................... 15:09:32 0:01 Parnas, Lev..... Giuliani, Rudy.. AT&T Document
Production, Bates
ATTHPSCI_20190930-00
912
04/12/19...................... 15:16:09 1:38 Parnas, Lev..... Solomon, John... AT&T Document
Production, Bates
ATTHPSCI_20190930-00
912
04/12/19...................... 15:48:09 0:03 OMB-Associated Giuliani, Rudy.. AT&T Document
Phone Number. Production, Bates
ATTHPSCI_20190930-02
137
04/12/19...................... 16:10:49 0:00 Parnas, Lev..... Giuliani, Rudy.. AT&T Document
Production, Bates
ATTHPSCI_20190930-00
913
04/12/19...................... 16:10:51 0:02 Parnas, Lev..... Giuliani, Rudy.. AT&T Document
Production, Bates
ATTHPSCI_20190930-00
913
4/12/19....................... 16:12:53 1:00 Parnas, Lev..... Nunes, Devin.... AT&T Document
Production, Bates
ATTHPSCI_20190930-00
913
04/12/19...................... 16:54:11 0:00 Nunes, Devin.... Parnas, Lev..... AT&T Document
Production, Bates
ATTHPSCI_20190930-00
913
04/12/19...................... 16:54:13 0:02 Nunes, Devin.... Parnas, Lev..... AT&T Document
Production, Bates
ATTHPSCI_20190930-00
913
04/12/19...................... 17:07:20 1:27 Parnas, Lev..... Giuliani, Rudy.. AT&T Document
Production, Bates
ATTHPSCI_20190930-00
913
04/12/19...................... 17:17:36 7:52 Sekulow, Jay.... Giuliani, Rudy.. AT&T Document
Production, Bates
ATTHPSCI_20190930-03
565
04/12/19...................... 17:24:05 1:49 Parnas, Lev..... Solomon, John... AT&T Document
Production, Bates
ATTHPSCI_20190930-00
914
04/12/19...................... 17:26:48 0:28 Parnas, Lev..... Solomon, John... AT&T Document
Production, Bates
ATTHPSCI_20190930-00
914
04/12/19...................... 17:30:19 8:34 Parnas, Lev..... Nunes, Devin.... AT&T Document
Production, Bates
ATTHPSCI_20190930-00
914
04/12/19...................... 17:39:25 0:53 Parnas, Lev..... Solomon, John... AT&T Document
Production, Bates
ATTHPSCI_20190930-00
914
04/12/19...................... 19:56:43 5:03 Giuliani, Rudy.. White House AT&T Document
Phone Number. Production, Bates
ATTHPSCI_20190930-02
139
----------------------------------------------------------------------------------------------------------------
As part of the investigation, the Committees uncovered
contact between Mr. Giuliani and a landline number with a
prefix associated with the Office of Management and Budget
within the Executive Office of the President, according to
public directories. This number appears to obscure the identity
of outgoing calls, but does not itself accept incoming calls.
The Committees continue to investigate the originator(s) of
these calls, including to determine whether other offices or
landlines within the White House may also show up with the same
landline number when outgoing calls are made and to clarify who
at the White House spoke to Mr. Giuliani at these key points in
time under investigation. A subpoena served to the White House
requesting certain call records was obstructed in full by
President Trump. Nevertheless, the Committee's investigation
into these and other call records remains ongoing.
Mr. Lutsenko and Mr. Kulyk were not the only Ukrainians who
appear to have engaged with diGenova & Toensing, LLP. On April
15, Ms. Toensing signed another retainer agreement between
diGenova & Toensing, LLP and former Prosecutor General Viktor
Shokin. Again, the Committees' copy is not signed by Mr.
Shokin. A spokesman for Ms. Toensing and Mr. diGenova
acknowledged that the firm represented ``Ukrainian
whistleblowers,'' but claimed that the identities of those
clients (other that Mr. Lutsenko) are protected by attorney-
client privilege. See Giuliani Weighed Doing Business with
Ukrainian Government, Wall Street Journal (Nov. 27, 2019)
(online at www.wsj.com/articles/giuliani-weighed-doing-
business-with-ukrainian-government-11574890951).
The first paragraph of the retainer agreement
outlined the services to be rendered:
Viktor Shokin (``Client'') hereby engaged the firm
diGenova & Toensing, LLP (``Firm'' or ``Attorneys'') to
represent him for the purpose of collecting evidence
regarding his March 2016 firing as Prosecutor General
of Ukraine and the role of then-Vice President Joe
Biden in such firing, and presenting such evidence to
U.S. and foreign authorities.
See Retainer Letter, diGenova & Toensing, LLP, Viktor Shokin
(Apr. 15, 2019).
The subject matter of the agreement--the activities of Vice
President Biden--again echo Mr. Solomon's pieces in The Hill,
conspiracy theories spread by Mr. Giuliani on behalf of
President Trump, and the President's statements about Vice
President Biden on his July 25 call with President Zelensky.
83. AT&T Document Production, Bates ATTHPSCI_20190930-
00947-ATTHPSCI_20190930-00950.
84. Id. at Bates ATTHPSC_20190930-2222-ATTHPSCI_20190930-
2223.
----------------------------------------------------------------------------------------------------------------
Connecting Duration
Date Time (ET) of Call Caller Recipient
----------------------------------------------------------------------------------------------------------------
04/23/19............................. 14:00:56 1:50 Giuliani, Rudy.......... Parnas, Lev
04/23/19............................. 14:15:18 0:18 Giuliani, Rudy.......... White House Phone Number
04/23/19............................. 14:15:43 0:11 Giuliani, Rudy.......... White House Phone Number
04/23/19............................. 15:20:17 0:11 Giuliani, Rudy.......... White House Phone Number
04/23/19............................. 15:50:23 8:28 ``-1''.................. Giuliani, Rudy
----------------------------------------------------------------------------------------------------------------
85. AT&T Document Production, Bates ATTHPSCI_20190930-
02224.
86. Rudy Giuliani, Twitter (Apr. 23, 2019) (online at
https://twitter.com/RudyGiuliani/status/1120798794692612097).
87. Giuliani Fires Back at Hillary Clinton's Remarks on
Mueller Probe, Fox News (Apr. 24, 2019) (online at
www.youtube.com/watch?v=FDtg8z12Q7s&feature=youtu.be).
88. AT&T Document Production, Bates ATTHPSCI_20190930-
02229-ATTHPSCI_20190930-02237.
----------------------------------------------------------------------------------------------------------------
Connecting Duration
Date Time (ET) of Call Caller Recipient
----------------------------------------------------------------------------------------------------------------
04/24/19............................. 7:17:48 0:42 OMB-Associated Phone Giuliani, Rudy
Number.
04/24/19............................. 7:47:57 0:37 Giuliani, Rudy.......... White House Phone Number
04/24/19............................. 7:48:39 0:21 Giuliani, Rudy.......... White House Phone Number
04/24/19............................. 7:49:00 0:31 OMB-Associated Phone Giuliani, Rudy
Number.
04/24/19............................. 7:49:00 0:20 Giuliani, Rudy.......... White House Phone Number
04/24/19............................. 7:49:35 4:53 Giuliani, Rudy.......... White House Phone Number
04/24/19............................. 7:54:52 0:24 Giuliani, Rudy.......... White House Phone Number
04/24/19............................. 13:03:50 13:44 OMB-Associated Phone Giuliani, Rudy
Number.
04/24/19............................. 16:42:52 8:00 Parnas, Lev............. Giuliani, Rudy
04/24/19............................. 18:38:57 0:44 Giuliani, Rudy.......... White House Phone Number
04/24/19............................. 18:42:43 8:42 ``-1''.................. Giuliani, Rudy
04/24/19............................. 20:09:14 0:06 Giuliani, Rudy.......... White House Phone Number
04/24/19............................. 20:12:08 3:15 White House Phone Number Giuliani, Rudy
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89. Yovanovitch Hearing Tr. at 31-32.
90. Yovanovitch Dep. Tr. at 22.
91. Yovanovitch Hearing Tr. at 21-22.
92. Yovanovitch Dep. Tr. at 129.
93. Id. at 139.
94. Yovanovitch Hearing Tr. at 28.
95. Sondland Hearing Tr. at 21.
96. Yovanovitch Hearing Tr. at 131-132.
97. Hale Dep. Tr. at 16-17, 112-113; Yovanovitch Hearing
Tr. at 21.
98. Cooper-Hale Hearing Tr. at 63 (``I only met her when I
took this job, but immediately I understood that we had an
exceptional officer doing exceptional work at a very critical
embassy in Kyiv. And during my visits to Kyiv, I was very
impressed by what she was doing there, to the extent that I
asked her if she'd be willing to stay, if that was a
possibility, because we had a gap coming up.'').
99. Id. at 64.
100. Biography of Marie L. Yovanovitch, Department of State
(online at https://2009-2017.state.gov/r/pa/ei/biog/
261588.htm).
101. McKinley Transcribed Interview Tr. at 37.
102. Reeker Dep. Tr. at 26.
103 Kent Dep. Tr. at 188-189.
104. Yovanovitch Hearing Tr. at 18-19.
105. Id.
106. Hill-Holmes Hearing Tr. at 18-19, 45-46.
107. Holmes Dep. Tr. at 142.
108. What ``Corruption'' Means in the Impeachment Hearings,
New Yorker (Nov. 16, 2019) (online at www.newyorker.com/news/
our-columnists/the-corruption-of-the-word-corruption-and-so-
much-else-amid-the-impeachment-hearings).
109. 22 U.S.C. Sec. 3941.
110. Yovanovitch Hearing Tr. at 110-111.
111. Ambassador Yovanovitch said: ``Although then and now I
have always understood that I served at the pleasure of the
President, I still find it difficult to comprehend that foreign
and private interests were able to undermine U.S. interests in
this way. Individuals who apparently felt stymied by our
efforts to promote stated U.S. policy against corruption, that
is, to do our mission, were able to successfully conduct a
campaign of disinformation against a sitting ambassador using
unofficial back channels. As various witnesses have recounted,
they shared baseless allegations with the President and
convinced him to remove his ambassador despite the fact that
the State Department fully understood that the allegations were
false and the sources highly suspect.'' Yovanovitch Hearing Tr.
at 22.
112. Hill-Holmes Hearing Tr. at 78-79.
113. Yovanovitch Dep. Tr. at 313-314.
114. Yovanovitch Hearing Tr. at 22.
115. Kent-Taylor Hearing Tr. at 25.
116. Kent. Dep. Tr. at 131-132.
117. Kent-Taylor Hearing Tr. at 31-32.
118. Comedian Volodymyr Zelensky Unseats Incumbent in
Ukraine's Presidential Election, Exit Polls Show, Washington
Post (Apr. 21, 2019) (online at www.washingtonpost.com/world/
as-ukraine-votes-in-presidential-runoff-a-comedian-looks-to-
unseat-the-incumbent/2019/04/21/b7d69a38-603f-11e9-bf24-
db4b9fb62aa2-story.html).
119. Id.
120. The White House, Memorandum of Telephone Conversation
(Apr. 21, 2019) (online at https://assets.documentcloud.org/
documents/6550349/First-Trump-Ukraine-Call.pdf).
121, Id.
122. Conflicting White House accounts of 1st Trump-
Zelenskiy call, Associated Press (Nov. 15, 2019) (online at
https://apnews.com/2f3c9910e0a14ec08d6d76ed93148059).
123. The White House, Memorandum of Telephone Conversation
(Apr. 21, 2019) (online at https://assets.documentcloud.org/
documents/6550349/First-Trump-Ukraine-Call.pdf).
124. Id.
125. Id.
126. Id.
127. Id.
128. Id.
129. Id.
130. Id.
131. Williams Dep. Tr. at 36.
132. Id. at 37.
133. Id. at 36.
134. Fox & Friends, Fox News (Apr. 24, 2019) (online at
www.youtube.com/watch?v=FDtg8z12Q7s#action=share).
135. Why Giuliani Singled Out 2 Ukrainian Oligarchs to Help
Look for Dirt, New York Times (Nov. 25, 2019) (online at
www.nytimes.com/2019/11/25/us/giuliani-ukraine-oligarchs.html).
136. Ukraine's Unlikely President, Promising a New Style of
Politics, Gets a Taste of Trump's Swamp, New Yorker (Oct. 25,
2019) (online at www.newyorker.com/magazine/2019/11/04/how-
trumps-emissaries-put-pressure-on-ukraines-new-president).
137. Why Giuliani Singled Out 2 Ukrainian Oligarchs to Help
Look for Dirt, New York Times (Nov. 25, 2019) (online at
www.nytimes.com/2019/11/25/us/giuliani-ukraine-oligarchs.html).
138. AT&T Document Production, Bates
ATTHPSCI_20190930_00947; ATTHPSCI_20190930_00949;
ATTHPSCI_20190930_02222; ATTHPSCI_20190930_02223.
139. Joe Biden Announces 2020 Run for President, After
Months of Hesitation, New York Times (Apr. 25, 2019) (online at
www.nytimes.com/2019/04/25/us/politics/joe-biden-2020-
announcement.html).
140. How the Obama White House Engaged Ukraine to Give
Russia Collusion Narrative an Early Boost, The Hill (Apr. 25,
2019) (online at https://thehill.com/opinion/white-house/
440730-how-the-obama-white-house-engaged-ukraine-to-give-
russia-collusion).
141. Holmes Dep. Tr. at 17.
142. Id. at 116.
143. Id.
144. AT&T Document Production, Bates
ATTHPSCI_20190930_02245.
145. Id.
146. Sean Hannity Interviews Trump on Biden, Russia Probe,
FISA Abuse, Comey, Fox News (Apr. 26, 2019) (online at
www.realclearpolitics.com/video/2019/04/26/
full_video_sean_hannity
_interviews_trump_on_biden_russia_probe_fisa_abuse_comey.
html).
147. Holmes Dep. Tr. at 55-56.
148. Sean Hannity Interviews Trump on Biden, Russia Probe,
FISA Abuse, Comey, Fox News (Apr. 26, 2019) (online at
www.realclearpolitics.com/video/2019/04/26/
full_video_sean_hanni-
ty_interviews_trump_on_biden_russia_probe_fisa_abuse_comey.html
). As discussed later in this report, on the morning of
September 25, 2019, the Department of Justice would quickly
issue a statement after President Trump released the record of
his July 25 call with President Zelensky. The statement
asserted that that Attorney General Barr had not engaged on
Ukraine matters at the President's request:
The President has not spoken with the Attorney
General about having Ukraine investigate anything
relating to former Vice President Biden or his son. The
President has not asked the Attorney General to contact
Ukraine--on this or any other matter. The Attorney
General has not communicated with Ukraine--on this or
any other subject.
149. Cleaning Up Ukraine in the Shadow of Trump, Financial
Times (Nov. 28, 2019) (online at www.ft.com/content/eb8e4004-
1059-11ea-a7e6-62bf4f9e548a).
150. Id.
151. Biden Faces Conflict of Interest Questions That Are
Being Promoted by Trump and Allies, New York Times (May 1,
2019) (online at www.nytimes.com/2019/05/01/us/politics/biden-
son-ukraine.html).
152. Transcript: Fox News Interview with President Trump,
Fox News (May 7, 2019) (online at www.foxnews.com/politics/
transcript-fox-news-interview-with-president-trump).
153. Id.
154. Foreign Affairs Issue Launch with Former Vice
President Joe Biden, Council on Foreign Relations (Jan. 23,
2018) (online at: www.cfr.org/event/foreign-affairs-issue-
launch-former-vice-president-joe-biden).
155. Ukraine Ousts Viktor Shokin, Top Prosecutor, and
Political Stability Hangs in the Balance, New York Times (Mar.
29, 2016) (online at www.nytimes.com/2016/03/30/world/europe/
political-stability-in-the-balance-as-ukraine-ousts-top-
prosecutor.html).
156. Yovanovitch Hearing Tr. at 50; Kent-Taylor Hearing Tr.
at 115.
157. Trump Says He'd Consider Accepting Information from
Foreign Governments on His Opponents, Washington Post (June 12,
2019) (online at www.washingtonpost.com/politics/trump-says-
hed-consider-accepting-dirt-from-foreign-governments-on-his-
opponents/2019/06/12/b84ba860-8d5c-11e9-8f69-
a2795fca3343_story.html).
158. AT&T Document Production, Bates
ATTHPSCI_20190930_02313.
159. Id. at Bates ATTHPSCI_20190930_02314;
ATTHPSCI_20190930_02316; ATTHPSCI_20190930_02318;
ATTHPSCI_20190930_01000.
160. Kent Dep. Tr. at 137.
161. Id.
162. Id.
163. Rudy Giuliani Plans Ukraine Trip to Push for Inquiries
That Could Help Trump, New York Times (May 9, 2019) (online at
www.nytimes.com/2019/05/09/us/politics/giuliani-ukraine-
trump.html).
164. Id.
165. Id.
166. Id.
167. Id.
168. Id.
169. Id.
170. Trump's Interest in Stirring Ukraine Investigations
Sows Confusion in Kiev, Washington Post (May 11, 2019) (online
at www.washingtonpost.com/world/europe/trumps-interest-
stirring-ukraine-investigations-sows-confusion-in-kiev/2019/05/
11/cb94f7f4-73ea-11e9-9331-30bc5836f48e_story.html).
171. AT&T Document Production, Bates
ATTHPSCI_20190930_02321; ATTHPSCI_20190930_02322.
172. AT&T Document Production, Bates
ATTHPSCI_20190930_02320, 02321, 02322, 02323, 03612.
173. AT&T Document Production, Bates
ATTHPSCI_20190930_03614; ATTHPSCI_20190930_02326;
ATTHPSCI_20190930_02327; ATTHPSCI_20190930_03614.
174. Rudy Giuliani, Twitter (May 9, 2019) (online at
https://twitter.com/RudyGiuliani/status/1126701386224156673).
175. Giuliani: ``Massive Collusion'' Between DNC, Obama
Admin, Clinton People & Ukraine To Create False Info About
Trump, Real Clear Politics (May 10, 2019) (online at
www.realclearpolitics.com/video/2019/05/10/
giuliani_massive_collusion_between_dnc_obama_
admin_clinton_people_ukraine_to_create_false_info_about_trump.
html).
176. Rudy Giuliani, Twitter (May 10, 2019) (online at
https://twitter.com/rudygiuliani/status/1126858889
209831424?lang=en).
177. AT&T Document Production, Bates
ATTHPSCI_20190930_02334.
178. Volker Transcribed Interview Tr. at 227; see also id.
at 32-33, 36 (describing the allegations).
179. Id. at 227.
180. AT&T Document Production, Bates
ATTHPSCI_20190930_02334.
181. AT&T Document Production, Bates
ATTHPSCI_20190930_02335.
182. Id.
183. Id.
184. Trump: Discussing a Biden Probe with Barr Would Be
`Appropriate,' Politico (May 10, 2019) (online at
www.politico.com/story/2019/05/10/trump-biden-ukraine-barr-
1317601).
185. Trump Denies Sending Rudy Giuliani to Ukraine to Push
Biden, Election Probes, CNBC (Nov. 27, 2019) (online at
www.cnbc.com/2019/11/27/trump-denies-sending-rudy-giuliani-to-
ukraine-to-push-biden-election-probes.html).
186. Remarks by President Trump and President Niinisto of
the Republic of Finland in Joint Press Conference, The White
House (Oct. 2, 2019) (online at www.whitehouse.gov/briefings-
statements/remarks-president-trump-president-niinisto-republic-
finland-joint-press-conference/).
187. Remarks by President Trump before Marine One
Departure, The White House (Oct. 4, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-marine-one-departure-68/).
188. Giuliani: I Didn't Go to Ukraine to Start an
Investigation, There Already Was One, Fox News (May 11, 2019)
(online at https://video.foxnews.com/v/6035385372001/#sp=show-
clips).
189. Trump: Discussing a Biden Probe with Barr Would Be
`Appropriate', Politico (May 10, 2019) (online at
www.politico.com/story/2019/05/10/trump-biden-ukraine-barr-
1317601) (documenting Giuliani text message).
190. Id.
191. Donald J. Trump, Twitter (May 3, 2019) (online at
https://twitter.com/realDonaldTrump/status/1124359594418032640)
192. Kent Dep. Tr. at 338-339.
193. Remarks by President Trump and Prime Minister Orban of
Hungary Before Bilateral Meeting, The White House (May 13,
2019) (online at www.whitehouse.gov/briefings-statements/
remarks-president-trump-prime-minister-orban-hungary-bilateral-
meeting/).
194. In Hungary, a Freewheeling Trump Ambassador Undermines
U.S. Diplomats, New York Times (Oct. 22, 2019) (online at
www.nytimes.com/2019/10/22/world/europe/david-cornstein-
hungary-trump-orban.html); Hungarian Prime Minister Earns Rare
Rebuke from European Bloc that Has Long Backed Him, Washington
Post (Mar. 20, 2019) (online at www.washingtonpost.com/world/
europe/hungarys-orban-earns-rare-rebuke-from-european-bloc-
that-has-long-backed-him/2019/03/20/83be110a-4b17-11e9-8cfc-
2c5d0999c21e_story.html.
195. Kent Dep. Tr. at 339.
196. Remarks by President Trump and Prime Minister Orban of
Hungary Before Bilateral Meeting, The White House (May 13,
2019) (online at www.whitehouse.gov/briefings-statements/
remarks-president-trump-prime-minister-orban-hungary-bilateral-
meeting/).
197. Kent Dep. Tr. at 253.
198. Id. at 254.
199. Williams Dep. Tr. at 37-38.
200. Vindman-Williams Hearing Tr. at 14. Other witnesses
testified that Vice President Pence may not have been able to
attend on account of scheduling issues. See Hill Dep. Tr. at
316 (``there was a lot of scheduling issues'' regarding the
attempts to schedule the Vice President's participation in the
delegation); Kent Dep. Tr. at 189-191 (Vice President Pence was
not available); Volker Transcribed Interview Tr. at 288-290,
293 (Volker ``wasn't surprised'' Pence could not make it and
assumed it was a matter of scheduling). However, Ms. Williams
was the only staff member in the Office of the Vice President
to testify before the Committees, and the only witness to
testify to having heard an explanation from Vice President
Pence's staff about why Vice President Pence did not attend the
inauguration.
201. Williams Dep. Tr. at 39.
202. Holmes Dep. Tr. at 37.
203. Id.
204. Rudy Giuliani, Twitter (May 18, 2019) (online at
https://twitter.com/RudyGiuliani/status/1129761193755910144)
205. Kolomoisky: We Called Varkuch and Asked: `Do You
Support Zelensky or No?', Pravda (May 27, 2019) (online at
www.pravda.com.ua/rus/articles/2019/05/27/7216183/).
206. Id.
207. Holmes Dep. Tr. at 16.
208. Volker Transcribed Interview Tr. at 288-290; Vindman
Dep. Tr. at 125.
209. Holmes Dep. Tr. at 101.
210. Id. at 18.
211. Id. 17-18.
212. Id. at 18.
213. Id.
214. Hill-Holmes Hearing Tr. at 61.
215. Vindman-Williams Hearing Tr. at 26.
216. Hill-Holmes Hearing Tr. at 61.
217. Vindman-Williams Hearing Tr. at 26.
218. Id.
219. Id.; David Holmes separately testified that Lt. Col.
Vindman ``made a general point about the importance of Ukraine
to our national security, and he said it's very important that
the Zelensky administration stay out of U.S. domestic
politics.'' Hill-Holmes Hearing Tr. at 61.
220. Volker Transcribed Interview Tr. at 30.
221. Id. at 29-30.
222. Kent Dep. Tr. at 193.
223. Anderson Dep. Tr. at 15, 54. Ambassador Sondland
testified that he did not specifically recall who arranged the
May 23 meeting and conjectured that ``either Rick Perry or I
reached out to someone at the NSC saying: Doesn't the President
want a briefing about the inauguration. And I think--I think it
was Perry, if I recall correctly, that got it nailed down.''
Sondland Dep. Tr. at 87.
224. Volker Transcribed Interview Tr. at 29, 303; Vindman
Dep. Tr. at 168.
225. Hill Dep. Tr. at 311.
226. Id. at 308.
227. Id.
228. Id. at 309-310.
229. Id.
230. Id.
231. Nunes Ally Kash Patel Who Fought Russia Probe Gets
Senior White House National Security Job, The Daily Beast (July
31, 2019) (online at www.thedailybeast.com/kash-patel-devin-
nunes-ally-who-fought-russia-probe-gets-senior-white-house-
national-security-job).
232. Volker Transcribed Interview Tr. at 304.
233. Sondland Dep. Tr. at 25.
234. Id.
235. Volker Transcribed Interview Tr. at 304.
236. Sondland Dep. Tr. at 337; Volker Transcribed Interview
Tr. at 304; Hill Dep. Tr. at 320-321 (describing Volker's
readout); Croft Dep. Tr. at 90 (describing Volker's readout);
Anderson Dep. Tr. at 57 (describing Volker's readout).
237. Volker Transcribed Interview Tr. at 305.
238. Id.
239. Sondland Dep. Tr. at 62; Volker Transcribed Interview
Tr. 305; Morrison-Volker Hearing Tr. at 40.
240. Sondland Hearing Tr. at 71.
241. Sondland Dep. Tr. at 26. See also id. at 87-90.
242. Morrison-Volker Hearing Tr. at 131.
243. Sondland Hearing Tr. at 167.
244. In addition to the testimony cited in this paragraph,
see also Hill Dep. Tr. at 113; Hale Dep. Tr. at 90; Taylor Dep.
Tr. at 58, 285; and Reeker Dep. Tr. at 148.
245. Kent Dep. Tr. at 195.
246. Croft Dep. Tr. at 91.
247. Hale Dep. Tr. at 73.
248. Sondland Dep. Tr. at 151-152.
249. Hill Dep. Tr. at 59-60.
250. Sondland Hearing Tr. at 24, 27, 123-124, 125-126.
251. Id. at 27-30.
252. Id. at 22.
253. Sondland Dep. Tr. at 77-78.
254. Hill-Holmes Hearing Tr. at 94.
255. Hill Dep. Tr. at 127. According to call records
obtained by the Committees, Mr. Giuliani connected with
Ambassador Bolton's office three times for brief calls of under
a minute between April 23 and May 10, 2019--a time period that
corresponds with the recall of Ambassador Yovanovitch and the
acceleration of Mr. Giuliani's efforts, on behalf of President
Trump, to pressure Ukraine into opening investigations that
would benefit his reelection campaign. AT&T Document
Production, Bates ATTHPSCI_20190930_02224, 02322, 02330.
256. Hill Dep. Tr. at 127.
257. Anderson Dep. Tr. at 15.
258. Id.
259. Id. at 101.
260. Hill Dep. Tr. at 127-128.
261. Id. at 116-117.
262. Id. at 130.
263. Anderson Dep. Tr. at 16.
264. Id.; Taylor Dep. Tr. at 24-25, 167.
265. Taylor Dep. Tr. at 25.
266. Id.
267. Id.
268. Anderson Dep. Tr. at 16-17.
269. Sondland Dep. Tr. at 240.
270. ABC News' Oval Office Interview with President Trump,
ABC News (June 13, 2019) (online at https://abcnews.go.com/
Politics/abc-news-oval-office-interview-president-donald-trump/
story?id=63688943).
271. ABC News' Oval Office Interview with President Trump,
ABC News (June 13, 2019) (online at https://abcnews.go.com/
Politics/abc-news-oval-office-interview-president-donald-trump/
story?id=63688943) (emphasis added).
272. Rudy Giuliani, Twitter (June 21, 2019) (online at
https://twitter.com/RudyGiuliani/status/1142085975230898176)
273. Hill-Holmes Hearing Tr. at 77.
274. Id. at 91.
275. Hill Dep. Tr. at 222-223.
276. Hill-Holmes Hearing Tr. at 92.
277. Id. at 93.
278. Office of the United Nations High Commissioner for
Human Rights, Report on the Human Rights Situation in Ukraine:
16 November 2018 to 15 February 2019 (online at www.ohchr.org/
Documents/Countries/UA/ReportUkraine16Nov2018-15Feb2019.pdf);
Office of the United Nations High Commissioner for Human
Rights, Report on the Human Rights Situation in Ukraine: 16
August to 15 November 2017 (online at www.ohchr.org/Documents/
Countries/UA/UAReport20th_EN.pdf); Office of the United Nations
High Commissioner for Human Rights, Conflict in Ukraine Enters
its Fourth Year with No End in Sight (June 13, 2017) (online at
www.ohchr.org/EN/NewsEvents/Pages/
DisplayNews.aspx?NewsID=21730&LangID=E). These figures do not
include the 298 civilians of 13 different nationalities killed
aboard Malaysia Airlines Flight 17, which a Dutch-led joint
investigation found was shot down by a Russian missile system
from a Russian military unit, a conclusion supported by U.S.
intelligence. See Dutch Safety Board, Report on the Crash of
Malaysia Airlines Flight MH17 (Oct. 13, 2015) (online at
www.onderzoeksraad.nl/en/page/3546/crash-mh17-17-july-2014);
U.S. Discloses Intelligence on Downing of Malaysian Jet,
Washington Post (July 22, 2014) (online at
www.washingtonpost.com/world/national-security/us-discloses-
intelligence-on-downing-of-malaysian-jet/2014/07/22/b178fe58-
11e1-11e4-98ee-daea85133bc9_story.html).
279. Ambassador Nikki Haley, United States Mission to the
United Nations, Remarks at a U.N. Security Council Briefing on
Ukraine (May 29, 2018) (online at https://usun.usmission.gov/
remarks-at-a-un-security-council-briefing-on-ukraine-2/).
280. Department of Defense, Secretary of Defense James
Mattis Remarks with President Petro Poroshenko (Aug. 24, 2017)
(online at www.defense.gov/Newsroom/Speeches/Speech/Article/
1291430/secretary-of-defense-james-mattis-remarks-with-
president-petro-poroshenko/).
281. European Union External Action, EU-Ukraine Relations
Factsheet (Sept. 30, 2019) (online at https://eeas.europa.eu/
headquarters/headQuarters-homepage/4081/eu-ukraine-relations-
factsheet_en); NATO, Fact Sheet: NATO's Support to Ukraine
(Nov. 2018) (www.nato.int/nato_static_fl2014/assets/pdf/
pdf_2018_11/20181106_1811-factsheet-nato-ukraine-support-
eng.pdf).
282. DOD Announces $250M to Ukraine, U.S. Department of
Defense (June 18, 2019) (online at www.defense.gov/Newsroom/
Releases/Release/Article/1879340/dod-announces-250m-to-ukraine/
).
283. Kent-Taylor Hearing Tr. at 21, 28-29, 50; Vindman Dep.
Tr. at 40-41, 113; Cooper Dep. Tr. at 15-16.
284. Taylor Dep. Tr. at 153.
285. Croft Dep. Tr. at 16.
286. Kent-Taylor Hearing Tr. at 30.
287. Taylor Dep. Tr. at 20.
288. Morrison-Volker Hearing Tr. at 11.
289. Department of Defense and Labor, Health and Human
Services, and Education Appropriations Act, 2019 and Continuing
Appropriations Act, 2019, Pub. L. No. 115-245, Sec. 9013
(2018).
290. National Defense Authorization Act for Fiscal Year
2016, Pub. L. 114-92, Sec. 1250 (2015), amended by the National
Defense Act Authorization Act for Fiscal Year 2018, Pub. L. No.
115-91, Sec. 1234 (2017), and most recently amended by the John
S. McCain National Defense Authorization Act for Fiscal Year
2019, Pub. L. No. 115-232, Sec. 1246 (2018).
291. National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, Sec. 1237 (2016); National Defense
Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91,
Sec. 1234 (2018); John S. McCain National Defense Authorization
Act for Fiscal Year 2019, Pub. L. No. 115-232, Sec. 1246
(2018).
292. Letter from John C. Rood, Under Secretary of Defense
for Policy, Department of Defense, to Chairman Eliot L. Engel,
House Committee on Foreign Affairs (Feb. 28, 2019).
293. Cooper Dep. Tr. at 27-28.
294. National Defense Authorization Act for Fiscal Year
2016, Pub. L. No. 114-92, Sec. 1250 (2015), as amended by the
National Defense Act Authorization Act for Fiscal Year 2018,
Pub. L. No. 115-91, Sec. 1234 (2017), and most recently amended
by the John S. McCain National Defense Authorization Act for
Fiscal Year 2019, Pub. L. No. 115-232, Sec. 1246 (2018).
295. Cooper Dep. Tr. at 24.
296. Id.
297. Letter from John C. Rood, Under Secretary of Defense
for Policy, Department of Defense, to Chairman Eliot L. Engel,
House Committee on Foreign Affairs (May 23, 2019).
298. Cooper Dep. Tr. at 31-32.
299. DOD Announces $250M to Ukraine, Department of Defense
(June 18, 2019) (online at www.defense.gov/Newsroom/Releases/
Release/Article/1879340/dod-announces-250m-to-ukraine/).
300. Consolidated Appropriations Act, 2019, Pub. L. No.
116-6, Sec. 7046(a)(2) (2019); Conference Report to Accompany
Consolidated Appropriations Act, 2019, H.R. Rep. No. 116-9, p.
869 (2019).
301. Consolidated Appropriations Act, 2018, Pub. L. No.
115-141, Title VIII (2017).
302. Consolidated Appropriations Act, 2019, Pub. L. No.
116-6, Sec. 7015(c) (2019); Consolidated Appropriations Act,
2018, Pub. L. No. 115-141, Sec. 7015(c) (2017).
303. OMB Circular No. A-11, Sec. 22.3 (2019) (requiring
that the State Department receive clearance from OMB before
notifying Congress).
304. Sandy Dep. Tr. at 25; DOD Announces $250M to Ukraine,
Department of Defense (June 18, 2019) (online at
www.defense.gov/Newsroom/Releases/Release/Article/1879340/dod-
announces-250m-to-ukraine/).
305. Sean Hannity Interviews Donald Trump via Telephone,
Fox News (June 19, 2019) (transcript at https://factba.se/
transcript/donald-trump-interview-sean-hannity-fox-telephone-
june-19-2019).
306. Sandy Dep. Tr. at 26-27.
307. Id. at 27-28.
308. Id. at 29-30.
309. Cooper Dep. Tr. at 33-34.
310. Id. at 33.
311. Id. at 34.
312. Id. at 38.
313. Id. at 37-38.
314. Cooper-Hale Hearing Tr. at 14; Vindman Dep. Tr. at
178-179. See also Stalled Ukraine Military Aid Concerned
Members of Congress for Months, CNN (Sept. 30, 2019) (online at
www.cnn.com/2019/09/30/politics/ukraine-military-aid-congress/
index.html) (suggesting that the State Department sought OMB's
approval for $141 million in FMF funds on June 21, 2019).
315. OMB Circular No. A-11, Sec. 22.3 (2019) (requiring
that the State Department receive clearance from OMB before
notifying Congress).
316. Williams Dep. Tr. at 54-55.
317. Id. at 55.
318. Blair previously served as Associate Director of
National Security Programs at OMB (Blair was Duffey's
predecessor), and left OMB for the White House Office of Chief
of Staff with Mick Mulvaney. Sandy Dep. Tr. at 36-38.
319. Sandy Dep. Tr. at 38-39.
320. Id. at 39.
321. Morrison Dep. Tr. at 161.
322. Sandy Dep. Tr. at 141-142.
323. Id. at 142.
324. Id. at 31-32.
325. Id. at 41-42.
326. Cooper Dep. Tr. at 40; see also Croft Dep. Tr. at 83
(``very routine low-level business'').
327. Kent Dep. Tr. at 303-305.
328. Taylor Dep. Tr. at 27-28.
329. Croft Dep. Tr. at 83.
330. Taylor Dep. Tr. at 27.
331. Holmes Dep. Tr. at 154.
332. Id.
333. Croft Dep. Tr. at 15.
334. Cooper Dep. Tr. at 45.
335. Kent Dep. Tr. at 304.
336. Id. at 305.
337. Sandy Dep. Tr. at 99; Vindman Dep. Tr. at 182.
338. Cooper Dep. Tr. at 40. Morrison, who did not attend
the sub-PCC meeting but received a readout, testified that he
thought OMB announced at the July 18th meeting that the hold
``covered all dollars, DOD and Department of State, and it
was--it was beyond funds not yet obligated to include funds
that had, in fact, been obligated but not yet expended.''
Morrison Dep. Tr. at 161.
339. Cooper Dep. Tr. at 40.
340. Id. at 44-45.
341. Id. at 40.
342. Kent Dep. Tr. at 307-308.
343. Morrison Dep. Tr. at 162.
344. Cooper Dep. Tr. at 46.
345. Williams Dep. Tr. at 91-92; see also Morrison Dep. Tr.
at 162 (testifying that representatives from OMB stated that
the hold ``had been imposed by the chief of staff's office''
and that the hold ``was at the direction of the President'').
346. Cooper Dep. Tr. at 46.
347. Morrison Dep. Tr. at 162-163; Kent Dep. Tr. at 310;
Sandy Dep. Tr. at 91.
348. Sandy Dep. Tr. at 91.
349. Morrison Dep. Tr. at 163.
350. Id.
351. 2 U.S.C. Sec. 601 et seq.
352. Williams Dep. Tr. at 91-92; Vindman Dep. Tr. at 182;
Morrison Dep. Tr. at 162; Sandy Dep. Tr. at 99.
353. Taylor Dep. Tr. at 195.
354. Vindman Dep. Tr. at 182.
355. Sandy Dep. Tr. at 54.
356. Id. at 54, 96-98.
357. Id. at 97.
358. Id. at 97.
359. Hale Dep. Tr. at 81.
360. Cooper Dep. Tr. at 47.
361. Hale Dep. Tr. at 81; see also Vindman Dep. Tr. at 184
(``It was unanimous consensus on the approach that we had laid
out in expanding engagement, the areas of cooperation that we
wanted to focus on, and that this should be elevated to a PC as
quickly as possible to release the hold on security assistance
because we're talking about the end of July, and time these
funds were set to expire September 30th, so there was some
urgency to it.''); Cooper Dep. Tr. at 49 (``Although each
member went around to talk about how important it [security
assistance] was and how they assessed the future in Ukraine
based on the recent election results.'').
362. Morrison Dep. Tr. at 165.
363. Cooper Dep. Tr. at 93.
364. Id. at 49, 93.
365. Nixon's Presidency: Crisis for Congress, New York
Times (Mar. 5, 1973) (online at www.nytimes.com/1973/03/05/
archives/nixons-presidency-crisis-for-congress-this-is-the-
second-of-a.html).
366. Congressional Research Service, The Congressional
Budget Act of 1974 (P.L. 93-344) Legislative History and
Analysis (Feb. 26, 1975) (online at https://
budgetcounsel.files.wordpress.com/2018/05/added-crs-the-
congressional-budget-act-of-1974-p-l-93-344-legislative-
history-and-analysis-order-code-75-94-s-february-26-1975.pdf).
367. Calvin Coolidge Presidential Foundation, The History
of the 1921 and 1974 Budget Acts (Nov. 26, 2014); So . . . this
is Nixon's Fault?, Politico (Oct. 21, 2015) (online at
www.politico.com/agenda/story/2015/10/richard-nixon-
congressional-budget-control-act-history-000282).
368. 2 U.S.C. Sec. 683.
369. U.S. Government Accountability Office, Impoundment
Control Act--Withholding of Funds through Their Date of
Expiration (Dec. 10, 2018) (online at www.gao.gov/assets/700/
695889.pdf).
370. Cooper Dep. Tr. at 47-48. With regard to interagency
discussions about the legality of the hold, Vindman testified
``[s]o I'm not a legal expert, but there was a sufficient
amount of--a significant amount of work done to determine
whether it was legal for OMB to be able to place the hold. . .
. I think at the--so my recollection in the [July 18th] sub-PCC
was that the matter was raised; at the [July 23rd] PCC, it was
tasked for further development; and I think by the time it got
to our [July 26th] DSG it was determined that, you know, there
was a legal basis to hold.'' Vindman Dep. Tr. at 185.
371. Vindman Dep. Tr. at 184.
372. Morrison Dep. Tr. at 165.
373. Id. at 264.
374. Id.
375. Id.
376. Cooper Dep. Tr. at 51.
377. Id.; see also id. at 113 (explaining that she relied
on a conversation with DOD legal to form her understanding of
the two proper legal mechanisms).
378. 2 U.S.C. Sec. 683.
379. Cooper Dep. Tr. at 58-59.
380. Id. at 114.
381. Id. at 51, 57; Sandy Dep. Tr. at 147-148.
382. 31 U.S.C. Sec. Sec. 1511-1516.
383. Sandy Dep. Tr. at 87, 163.
384. Id. at 34-35.
385. Id. at 51.
386. Id. at 23.
387. Id. at 33-35, 51-52.
388. Id. at 86.
389. Id. at 86-87.
390. Id. at 86.
391. Id. at 87-88.
392. SF-132 Apportionment Schedule FY 2019, OMB Footnote A4
(July 25, 2019).
393. Sandy Dep. Tr. at 94.
394. Id.
395. Id. at 94-95; SF-132 Apportionment Schedule FY 2019,
OMB Footnote A4 (July 25, 2019).
396. Sandy Dep. Tr. at 87.
397. SF-132 Apportionment Schedule FY 2019, OMB Footnote A4
(July 25, 2019); Sandy Dep. Tr. at 92.
398. Sandy Dep. Tr. at 101.
399. Id. at 102.
400. Id. at 96-97, 102.
401. Id. at 101-102.
402. Id. at 63.
403. Id.
404. Id. at 102.
405. Id. at 64-65.
406. Id. at 65.
407. Id. at 108-109.
408. Id. at 104, 119-120.
409. Cooper Dep. Tr. at 58-59.
410. Id.
411. Id. at 59.
412. Sandy Dep. Tr. at 74-75, 127-128.
413. SF-132 Apportionment Schedule FY 2019, OMB Footnote A4
(August 6, 2019); SF-132 Apportionment Schedule FY 2019, OMB
Footnote A4 (August 15, 2019). Because of a drafting error in
which OMB forgot to extend the date, the footnotes technically
did not restrict DOD from spending funds between August 12 and
August 20 (the date of the subsequent funding document
reinstating the hold). However, Sandy testified that the hold
was still in place and that the direction from the President
remained unchanged. Sandy Dep. Tr. at 124-126.
414. SF-132 Apportionment Schedule FY 2019, OMB Footnote A4
(August 6, 2019); SF-132 Apportionment Schedule FY 2019, OMB
Footnote A4 (August 15, 2019); SF-132 Apportionment Schedule FY
2019, OMB Footnote A4 (August 20, 2019); SF-132 Apportionment
Schedule FY 2019, OMB Footnote A4 (August 27, 2019); SF-132
Apportionment Schedule FY 2019, OMB Footnote A4 (August 31,
2019); SF-132 Apportionment Schedule FY 2019, OMB Footnote A4
(Sept. 5, 2019); SF-13; SF-132 Apportionment Schedule FY 2019,
OMB Footnote A4 (Sept. 6, 2019); Apportionment Schedule FY
2019, OMB Footnote A4 (Sept. 10, 2019).
415. Cooper Dep. Tr. at 91-92.
416. Id. at 92.
417. Kent Dep. Tr. at 318-319.
418. Sandy Dep. Tr. at 56-61.
419. Id. at 59-60.
420. Id. at 60-61.
421. Id. at 75, 127-128; Cooper Dep. Tr. at 57-58; see also
id. at 59 (``And along the way, [the] Defense Security
Cooperation Agency was expressing doubt that they could do
it.'').
422. Cooper Dep. Tr. at 80-81. Ultimately, as described
below, DOD was able to obligate all but approximately $35
million in USAI funds by September 30th. Sandy Dep. Tr. at 146-
147.
423. Sandy Dep. Tr. at 127-128.
424. Id. at 95.
425. SF-132 Apportionment Schedule FY 2019 (August 20,
2019); SF-132 Apportionment Schedule FY 2019 (August 27, 2019);
SF-132 Apportionment Schedule FY 2019 (August 31, 2019); SF-132
Apportionment Schedule FY 2019 (September 5, 2019); SF-132
Apportionment Schedule FY 2019 (September 6, 2019); SF-132
Apportionment Schedule FY 2019 (September 10, 2019).
426. SF-132 Apportionment Schedule FY 2019 (August 20,
2019) (funds not available for obligation until August 26); SF-
132 Apportionment Schedule FY 2019 (August 27, 2019) (funds not
available for obligation until August 31); SF-132 Apportionment
Schedule FY 2019 (August 31, 2019) (funds not available for
obligation until September 5); SF-132 Apportionment Schedule FY
2019 (September 5, 2019) (funds not available for obligation
until September 7); SF-132 Apportionment Schedule FY 2019
(September 6, 2019) (funds not available for obligation until
September 11); SF-132 Apportionment Schedule FY 2019 (September
10, 2019) (funds not available for obligation until September
12).
427. Sandy Dep. Tr. at 131.
428. Id. at 136-137.
429. Id. at 136.
430. Id. at 135-137, 150-155.
431. Id. at 149-152.
432. Id. at 152.
433. Id. at 150-156.
434. Morrison Dep. Tr. at 266-267.
435. Id. at 268.
436. Id. at 267.
437. Vindman Dep. Tr. at 186.
438. Id.
439. Id. at 187-188.
440. Morrison Dep. Tr. at 167-168.
441. Id. at 170-171.
442. Id. at 265-266.
443. Id. at 172, 266.
444. Id. at 266.
445. Cooper Dep. Tr. at 68.
446. Croft Dep. Tr. at 86.
447. Id. at 86-87.
448. Id. at 86-87, 101.
449. Id. at 97-98.
450. Cooper-Hale Hearing Tr. at 14.
451. Id. at 13-14.
452. Id. at 14.
453. Id. at 15.
454. Vindman Dep. Tr. at 221-222.
455. Trump Holds Up Ukraine Military Aid Meant to Confront
Russia, Politico (Aug. 28, 2019) (online at www.politico.com/
story/2019/08/28/trump-ukraine-military-aid-russia-1689531).
456. Holmes Dep. Tr. at 18 (``It is important to understand
that a White House visit was critical to President Zelensky. He
needed to demonstrate U.S. support at the highest levels, both
to advance his ambitious anti-corruption agenda at home and to
encourage Russian President Putin to take seriously President
Zelensky's peace efforts.'').
457. Kent Dep. Tr. at 202 (``The President of the United
States is a longtime acknowledged leader of the free world, and
the U.S. is Ukraine's strongest supporter. And so in the
Ukraine context, it's very important to show that they can
establish a strong relationship with the leader of the United
States. That's the Ukrainian argument and desire to have a
meeting. The foreign policy argument is it's a very important
country in the front lines of Russian malign influence and
aggression. And the U.S. spends a considerable amount of our
resources supporting Ukraine and therefore it makes sense.'').
458. Hill Dep. Tr. at 158 (``He was just generally
concerned about actually not having a meeting because he felt
that this would deprive Ukraine, the new Ukrainian Government
of the legitimacy that it needed, especially vis-a-vis the
Russians. So this gets to, you know, the heart of our national
security dilemma. You know, the Ukrainians at this point, you
know, are looking at a White House meeting or looking at a
meeting with the President of the United States as a
recognition of their legitimacy as a sovereign state.'').
459. Vindman Hearing Tr. at 38-39 (``The show of support
for President Zelensky, still a brand-new President, frankly, a
new politician on the Ukrainian political scene, looking to
establish his bona fides as a regional and maybe even a world
leader, would want to have a meeting with the United States,
the most powerful country in the world and Ukraine's most
significant benefactor, in order to be able to implement his
agenda.'').
460. Volker Transcribed Interview Tr. at 59.
461. Id. at 328.
462. Taylor Dep. Opening Statement at 5 (``In late June,
one of the goals of both channels was to facilitate a visit by
President Zelensky to the White House for a meeting with
President Trump, which President Trump had promised in his
congratulatory letter of May 29. The Ukrainians were clearly
eager for the meeting to happen. During a conference call with
Ambassador Volker, Acting Assistant Secretary of State for
European and Eurasian Affairs Phil Reeker, Secretary Perry,
Ambassador Sondland, and Counsel of the U.S. Department of
State Ulrich Brechbuhl on June 18, it was clear that a meeting
between the two presidents was an agreed-upon goal.'').
463. Id. at 25 (``[D]uring my subsequent communications
with Ambassadors Volker and Sondland, they relayed to me that
the President `wanted to hear from Zelensky' before scheduling
the meeting in the Oval Office. It was not clear to me what
this meant.'').
464. Id.
465. Holmes Dep. Tr. at 20.
466. Taylor Dep. Tr. at 25-26.
467. Id. at 25. See also id. at 128.
Q: But Ambassador Sondland made it clear not only
that he didn't wish to include most of the regular
interagency participants but also that no one was
transcribing or monitoring the call as they added
President Zelensky. What struck you as odd about that?
A: Same concern. That is, in the normal, regular
channel, the State Department operations center that
was putting the call together would stay on the line,
in particular when you were having a conversation with
the head of state, they would stay on the line,
transcribe, take notes so that there could be a record
of the discussion with this head of state. It is an
official discussion. When he wanted to be sure that
there was not, the State Department operations center
agreed.
468. Id. at 26.
469. Id. at 127.
470. Kurt Volker Document Production, Bates KV00000036
(Oct. 2, 2019).
471. Id.
472. Taylor Dep. Tr. at 26.
473. Kurt Volker Document Production, Bates KV00000027
(Oct. 2, 2019).
474. Volker Transcribed Interview Tr. at 242-243.
475. Kurt Volker Document Production, Bates KV00000055
(Oct. 2, 2019).
476. Id. at Bates KV00000027.
Taylor: Are you OK with me briefing Ulrich on these
conversations? Maybe you have already?
Volker: I have not--please feel free
Volker: The key thing is to tee up a phone call w
potus and then get visit nailed down
Taylor: I agree. Is Ze on board with a phone call?
Volker: Yes bogdan was a little skeptical, but
Zelensky was ok with it. Now we need to get it on potus
schedule
* * *
Taylor: The three amigos are on a roll. Let me know
when I can help.
477. Taylor Dep. Tr. at 65-66 (``Kurt told me that he had
discussed how President Zelensky could prepare for the phone
call with President Trump. And without going into--without
providing me any details about the specific words, did talk
about investigations in that conversation . . . Kurt suggested
that President Trump would like to hear about the
investigations.'').
478. Morrison-Volker Hearing Tr. at 94.
Q: In the July 2nd or 3rd meeting in Toronto that you
had with President Zelensky, you also mentioned
investigations to him, right?
A: Yes
Q: And again, you were referring to the Burisma and
the 2016 election.
A: I was thinking of Burisma and 2016.
Q: And you understood that that what the Ukrainians
interpreted references to investigations to be, related
to Burisma and the 2016 election?
A: I don't know specifically at that time if we had
talked that specifically, Burisma/2016. That was my
assumption, though, that they would've been thinking
that too.
479. Sondland Hearing Tr. at 27.
480. Id. at 43.
481. Id. at 21-22.
482. Kent Dep. Tr. at 246.
483. Hill-Holmes Hearing Tr. at 59.
484. Kent Dep. Tr. at 246-247 (``I do not recall whether
the follow-on conversation I had with Kurt about this was in
Toronto, or whether it was subsequently at the State
Department. But he did tell me that he planned to start
reaching out to former Mayor of New York, Rudy Giuliani. And
when I asked him why, he said that it was clear that the former
mayor had influence on the President in terms of the way the
President though of Ukraine. And I think by that moment in
time, that was self-evidence to anyone who was working on the
issues, and therefore, it made sense to try to engage the
mayor. When I raised with Kurt, I said, about what? Because
former Mayor Giuliani has a track record of, you know, asking
for a visa for a corrupt former prosecutor. He attacked Masha,
and he's tweeting that the new President needs to investigate
Biden and the 2016 campaign. And Kurt's reaction or response to
me at that was, well, if there's nothing there, what does it
matter? And if there is something there, it should be
investigated. My response to him was asking another country to
investigate a prosecution for political reasons undermines our
advocacy of the rule of law.'').
485. Kurt Volker Document Production, Bates KV00000036
(Oct. 2, 2019).
486. Id.
487. Id. at Bates KV00000006.
488. Volker Transcribed Interview Tr. at 308; Kurt Volker
Document Production, Bates KV00000018 (Oct. 2, 2019).
489. Volker Transcribed Interview Tr. at 138.
490. Sondland Hearing Tr. at 23.
491. Hill Dep. Tr. at 63.
492. Id. at 63-67, 155.
493. Id.
Q: Did anything happen in that meeting that was out
of the ordinary?
A: Yes. At one point during that meeting, Ambassador
Bolton was, you know, basically trying very hard not to
commit to a meeting, because, you know--and, again,
these meetings have to be well-prepared. They're not
just something that you say, yes, we're going to have a
meeting without there being a clear understanding of
what the content of that meeting is going to be. . . .
And Ambassador Bolton is always was--always very
cautious and always very much, you know, by the book
and was not going to certainly commit to a meeting
right there and then, certainly not one where it
wasn't--it was unclear what the content of the meeting
would be about, what kind of issues that we would
discuss that would be pertaining to Ukrainian-U.S.
relations. . . . Then Ambassador Sondland blurted out:
Well, we have an agreement with the chief of staff for
a meeting if these investigations in the energy sector
start. And Ambassador Bolton immediately stiffened. He
said words to the effect--I can't say word for word
what he said because I was behind them sitting on the
sofa with our Senior Director of Energy, and we all
kind of looked up and thought that was somewhat odd.
And Ambassador Bolton immediately stiffened and ended
the meeting.
Q: Right then, he just ended the meeting?
A: Yeah. He said: Well, it was very nice to see you.
You know, I can't discuss a meeting at this time. We'll
clearly work on this. And, you know, kind of it was
really nice to see you. So it was very abrupt. I mean,
he looked at the clock as if he had, you know, suddenly
another meeting and his time was up, but it was obvious
he ended the meeting.
494. Vindman Dep. Tr. at 17 (``The meeting proceeded well
until the Ukrainians broached the subject of a meeting between
the two Presidents. The Ukrainians saw this meeting as
critically important in order to solidify the support for their
most important international partner. Ambassador Sondland
started--when Ambassador Sondland started to speak about
Ukraine delivering specific investigations in order to secure
the meeting with the President, Ambassador Bolton cut the
meeting short.'')
495. Volker Transcribed Interview Tr. at 310.
496. Morrison-Volker Hearing Tr. at 23, 73, 103.
497. Hill Dep. Tr. at 68 (``And Ambassador Sondland said to
Ambassador Volker and also Secretary Perry and the other people
who were with him, including the Ukrainians, to come down to--
there's a room in the White House, the Ward Room, to basically
talk about next steps. And that's also unusual. I mean, he
meant to talk to the Ukrainians about next steps about the
meeting.'')
498. Id. (``And Ambassador Bolton pulled me back as I was
walking out afterwards and said: Go down to the Ward Room right
now and find out what they're talking about and come back and
talk to me. So I did go down.'').
499. Vindman Dep. Tr. at 64-65.
Q: And what do you recall specifically of what
Sondland said to the Ukrainians--
A: Right.
Q: --in the Ward Room?
A: So that is right, the conversation unfolded with
Sondland proceeding to kind of, you know, review what
the deliverable would be in order to get the meeting,
and he talked about the investigation into the Bidens,
and, frankly, I can't 100 percent recall because I
didn't take notes of it, but Burisma, that it seemed--I
mean, there was no ambiguity, I guess, in my mind. He
was calling for something, calling for an investigation
that didn't exist into the Bidens and Burisma.
Q: Okay. Ambiguity in your mind is different from
what you--
A: Sure.
Q: --actually heard?
A: Right. Correct.
Q: What did you hear Sondland say?
A: That the Ukrainians would have to deliver an
investigation into the Bidens.
Q: Into the Bidens. So in the Ward Room he mentioned
the word ``Bidens''?
A: To the best of my recollection, yes.
Q: Okay . Did he mention 2016?
A: I don't recall.
Q: Did he mention Burisma?
A: My visceral reaction to what was being called for
suggested that it was explicit. There was no ambiguity.
* * *
A: Again, based on my visceral reaction, it was
explicit what he was calling for. And to the best of my
recollection, he did specifically say ``investigation
of the Bidens.''
* * *
A: So the meeting that occurred in the Ward Room
referenced investigations into the Bidens, to the best
of my recollection, Burisma and 2016.
500. Hill Dep. Tr. at 69.
501. Id. at 151-152.
502. Id. at 69-70.
503. Vindman Dep. Tr. at 31.
Q: Did Ambassador Sondland--were the Ukrainian
officials in the room when he was describing the need
for these investigations in order to get the White
House meeting?
A: So they were in the room initially. I think, once
it became clear that there was some sort of discord
amongst the government officials in the room,
Ambassador Sondland asked them to step out of the room.
Q: What was the discord?
A: The fact that it was clear that--I, as the
representative I, as the representative of the NSC,
thought it was inappropriate and that we were not going
to get involved in investigations.
Q: Did you say that to Ambassador Sondland?
A: Yes, I did.
504. Id. at 18. While not specifically disagreeing with any
of the content of the discussion in the Ward Room, Ambassador
Sondland generally disputed Dr. Hill and Lt. Col. Vindman's
accounts, saying that he did not recall ``any yelling or
screaming . . . as others have said.'' Sondland Hearing Tr. at
23. Neither Dr. Hill nor Lt. Col. Vindman described yelling or
screaming in the meetings.
Ambassador Sondland also testified that ``those
recollections of protest do not square with the documentary
record of our interactions with the NSC in the days and weeks
that followed.'' Sondland Hearing Tr. at 23. As an example,
Sondland provided text from a July 13 email that he sent--not
to Dr. Hill, but to her successor Tim Morrison--which said that
the ``sole purpose'' of the call between President Trump and
President Zelensky was to give the former ``assurances of `new
sheriff' in town.'' Sondland Hearing Tr. at 23. The email that
Ambassador Sondland provided does not undermine Dr. Hill's or
Lt. Col. Vindman's testimony that they objected to Ambassador
Sondland's conduct in the Ward Room meeting. The email provided
by Ambassador Sondland, however, was sent to Mr. Morrison, not
Dr. Hill. Mr. Morrison had not yet started working as NSC
Senior Director for Europe and was not at the July 10 meeting.
505. Vindman Dep. Tr. at 29.
A: So I heard him say that this had been coordinated
with White House Chief of Staff Mr. Mick Mulvaney.
Q: What did he say about that?
A: He just said that he had had a conversation with
Mr. Mulvaney, and this is what was required in order to
get a meeting.
506. Hill Dep. Tr. at 69-70.
507. Kurt Volker Document Production, Bates KV00000036
(Oct. 2, 2019).
Taylor: Eager to hear if your meeting with Danyliuk
and Bolton resulted in a decision on a call.
Taylor: How did the meeting go?
Volker: Not good--lets talk--kv
508. Id. at Bates KV00000018.
509. Hill Dep. Tr. at 70-72.
510. Id. at 126-27.
Q: Okay. But what did you understand him to mean by
that?
A: Well, based on what had happened in the July 10th
meeting and Ambassador Sondland blurting out that he'd
already gotten agreement to have a meeting at the White
House for Zelensky if these investigations were started
up again, clearly Ambassador Bolton was referring
directly to those.
511. Id. at 129.
512. Id. at 139. (``I told him exactly, you know, what had
transpired and that Ambassador Sondland had basically indicated
that there was an agreement with the Chief of Staff that they
would have a White House meeting or, you know, a Presidential
meeting if the Ukrainians started up these investigations
again.'').
513. Id.
514. Id. at 146-147.
515. Id. at 158-159, 161.
Q: What was Mr. Eisenberg's reaction to what you
explained to him had and Mr. Griffith had explained to
him had occurred the day before?
A: Yeah. He was also concerned. I mean, he wasn't
aware that Sondland, Ambassador Sondland was, you know,
kind of running around doing a lot of these, you know,
meetings and independently. We talked about the fact
that, you know, Ambassador Sondland said he'd been
meeting with Giuliani and he was very concerned about
that. And he said that he would follow up on this.
516. Vindman Dep. Tr. at 37. (``Sir, I think I--I mean, the
top line I just offered, I'll restate it, which is that Mr.
Sondland asked for investigations, for these investigations
into Bidens and Burisma. I actually recall having that
particular conversation. Mr. Eisenberg doesn't really work on
this issue, so I had to go a little bit into the back story of
what these investigations were, and that I expressed concerns
and thought it was inappropriate.'').
517. Id. at 36.
518. Id. at 38.
Q: Did he say anything to you, that, all right, I'm
going to do anything with it?
A: I vaguely recall something about: I'll take a look
into it. You know, there might not be anything here.
We'll take a look into it, something of that nature.
But--and then he offered to, you know, if I have any
concerns in the future, you know, that I should be
open--I should be--feel free to come back and, you
know, share those concerns.
Q: Did either he or anyone from the legal staff
circle back to you on this issue?
A: No.
519. Id. at 39-40.
520. Taylor Dep. Tr. at 29. (``In the same July 19th phone
call, they gave me an account of the July 10th meeting with the
Ukrainian officials at the White House. Specifically, they told
me that Ambassador Sondland had connected investigations with
an Oval Office meeting for President Zelensky, which so
irritated Ambassador Bolton that he abruptly ended the meeting,
telling Dr. Hill and Mr. Vindman that they should have nothing
to do with domestic politics.'').
521. Morrison Dep. Tr. at 12.
522. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong. (Nov. 20, 2019) (``2. The call
between Zelensky and Potus should happen before 7/21.
(Parliamentary Elections) Sole purpose is for Zelensky to give
Potus assurances of `new sheriff' in town. Corruption ending,
unbundling moving forward and any hampered investigations will
be allowed to move forward transparently. Goal is for Potus to
invite him to Oval. Volker, Perry, Bolton and I strongly
recommend.'').
523. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong., at 21 (Nov. 20, 2019).
524. Sondland Dep. Tr. at 227.
525. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong., at 21 (Nov. 20, 2019).
526. Id.
527. Id.
528. Sondland Hearing Tr. at 27.
529. Verizon Document Production. It is unclear whether
this call occurred before or after Ambassador Sondland spoke
with President Zelensky, and it is also unclear whether the
White House caller was an Administration official or the
President himself.
530. Kurt Volker Document Production, Bates KV00000037
(Oct. 2, 2019).
531. Id.
532. Volker Transcribed Interview Tr. at 229-230.
533. Kurt Volker Document Production, Bates KV00000018
(Oct. 2, 2019).
534. Volker Transcribed Interview Tr. at 202-203.
535. Id. at 232.
536. Kurt Volker Document Production, Bates KV00000002
(Oct. 2, 2019).
537. Id. at Bates KV00000018.
538. Volker Transcribed Interview Tr. at 138-139.
539. AT&T Document Production, Bates
ATTHPSCI_20190930_02705.
540. Volker Transcribed Interview Tr. at 139.
541. Kurt Volker Document Production, Bates KV00000018
(Oct. 2, 2019).
542. Id. at Bates KV00000002-KV00000003.
543. Id. at Bates KV00000042.
Volker: Orchestrated a great call w Rudy and Yermak.
They are going to get together when Rudy goes to Madrid
in a couple of weeks.
Volker: In the meantime, Rudy is now advocating for
phone call
Volker: I have call into Fiona's replacement and will
call Bolton if needed.
Volker: But I can tell Bolton and you can tell Mick
that Rudy agrees on a call, if that helps
Sondland: I talked to Tim Morrison. (Fiona's
replacement). He is pushing but feel free as well.
544. Id.
545. Taylor Dep. Tr. at 30.
546. Kurt Volker Document Production, Bates KV000000 37
(Oct. 2, 2019).
547. Taylor Dep. Tr. at 74.
548. Kent-Taylor Hearing Tr. at 68.
549. Taylor Dep. Tr. at 177.
550. Sondland Dep. Tr. at 183.
551. Sondland Hearing Tr. at 17.
552. Id. at 18.
553. Id. at 19, 17.
554. Id. at 27.
555. Id. at 26.
556. Id. at 27.
557. Taylor Dep. Tr. at 26.
558. Hill-Holmes Hearing Tr. at 25.
559. Hill Dep. Tr. at 420-421.
Q: You've mentioned repeatedly concerns that you had
about, in particular, Mr. Giuliani and his efforts.
When you read the call transcript of July 25th, the
call record, which you must have done just a couple
weeks ago, did it crystalize in your head in any way a
better understanding of what was transpiring while you
were there?
A:In terms of providing, you know, more information
with hindsight, unfortunately, yes.
Q: And in what way?
A: The specific references, also juxtaposed with the
release of the text messages by Ambassador Volker--you
know, what I said before--really was kind of my worst
fears and nightmares, in terms of, you know, there
being some kind of effort not just to subvert the
national security process but to try to subvert what
really should be, you know, kind of, a diplomatic
effort to, you know, kind of, set up a Presidential
meeting.
Q: This may--
A: There seems to be an awful lot of people involved
in, you know, basically turning a White House meeting
into some kind of asset.
Q:What do you mean by ``asset''?
A: Well, something that was being, you know, dangled
out to the Ukrainian Government. They wanted the White
House meeting very much. And this was kind of laying
out that it wasn't just a question of scheduling or
having, you know, the national security issues worked
out, that there were all of these alternative
discussions going on behind.
560. Taylor Dep. Tr. at 174.
561. Id.
562. Kurt Volker Document Production, Bates KV00000042
(Oct. 2, 2019).
563. Sondland Hearing Tr. at 53-55.
564. Id. at 52-53.
565. Morrison Dep. Tr. at 30-31, 101, 247, 256.
566. Id. at 31.
567. Id. at 111.
568. Volker Transcribed Interview Tr. at 102-103; Kurt
Volker Document Production, Bates KV00000007 (Oct. 2, 2019). In
his testimony, Ambassador Volker did not explain to the
Committees what he had heard about the July 25 call put him in
a position to tell Mr. Giuliani that the ``right messages''
were, in fact, discussed.
Ambassador Volker testified twice about the readouts that
he received of the July 25 call. In his deposition, he told the
Committees that he received ``the same'' readout from both the
State Department and Mr. Yermak: that there was a message of
congratulations to President Zelensky, that President Zelensky
promised to fight corruption and that President Trump repeated
the invitation to visit the White House. Volker Transcribed
Interview Tr. at 102-103. Ambassador Volker described it as a
``superficial'' readout. Volker Transcribed Interview Tr. at
19.
In his public testimony, Ambassador Volker repeated that
claim: the readouts from Mr. Yermak and Ambassador Volker's
U.S. sources ``were largely the same, that it was a good call,
that it was a congratulatory phone call for the President
winning the parliamentary election.'' Volker-Morrison Hearing
Tr. at 74. Ambassador Volker did testify that he ``expected''
the call to cover the material in his July 25 text message--
that the Ukrainians would ``investigate/`get to the bottom of
what happened' in 2016''--but did not receive anything more
than a ``barebones'' description of what was said. Volker-
Morrison Hearing Tr. at 87-88, 75.
If Ambassador Volker is correctly describing the readouts
he received, it is not clear what he heard that gave him the
basis to tell Mr. Giuliani that ``exactly the right messages''
were discussed.
569. Williams Dep. Tr. at 37-38.
570. Hill-Holmes Hearing Tr. at 23.
571. Id. at 25.
572. Trump and Putin Share Joke About Election Meddling,
Sparking New Furor, New York Times (June 28, 2019) (online at
www.nytimes.com/2019/06/28/us/politics/trump-putin-
election.html) (``As he sat down on Friday with Mr. Putin on
the sidelines of an international summit in Japan, Mr. Trump
was asked by a reporter if he would tell Russia not to meddle
in American elections. `Yes, of course I will,' Mr. Trump said.
Turning to Mr. Putin, he said, with a half-grin on his face and
mock seriousness in his voice, `Don't meddle in the election,
President.''').
573. Morrison Dep. Tr. at 41.
574. Williams Dep. Tr. at 131.
575. See Vindman Dep. Tr. at 42, 109; Morrison Dep. Tr. at
41.
576. Vindman Dep. Tr. at 18; Morrison Dep. Tr. at 15.
577. Vindman Dep. Tr. at 42-43; Morrison-Volker Hearing Tr.
at 32.
578. Morrison Dep. Tr. at 39; Vindman Dep. Tr. at 45.
579. U.S. Embassy & Consulates in Italy, Secretary Michael
R. Pompeo and Italian Foreign Minister Luigi Di Maio at a Press
Availability (Oct. 2, 2019) (online at https://
it.usembassy.gov/secretary-michael-r-pompeo-and-italian-
foreign-minister-luigi-di-maio-at-a-press-availability/). Mr.
Morrison testified that Dr. Kupperman was not in the Situation
Room, but Mr. Morrison was informed after the fact that Dr.
Kupperman was listening. Morrison Dep. Tr. at 39-40. Ms.
Williams and Lt. Col. Vindman testified that they both believed
Dr. Kupperman was present, but neither had a clear
recollection. Williams Dep. Tr. at 64; Vindman Dep. Tr. at 45.
580. See Transcript, This Week with George Stephanopoulos,
ABC News (Sept. 22, 2019) (online at https://abcnews.go.com/
Politics/week-transcript-22-19-secretary-mike-pompeo-gen/
story?id=65778332) (Q: And I want to turn to this whistleblower
complaint, Mr. Secretary. The complaint involving the president
and a phone call with a foreign leader to the director of
national intelligence inspector general. That's where the
complaint was launched by the whistle-blower. `The Wall Street
Journal' is reporting that President Trump pressed the
president of Ukraine eight times to work with Rudy Giuliani to
investigate Joe Biden's son. What do you know about those
conversations? A: So, you just gave me a report about a I.C.
whistle-blower complaint, none of which I've seen. . . .'').
581. Pompeo Took Part in Ukraine Call, Official Says, Wall
Street Journal (Sept. 30, 2019) (online at www.wsj.com/
articles/pompeo-took-part-in-ukraine-call-official-says-
11569865002).
582. The White House, Memorandum of Telephone Conversation
(July 25, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/09/Unclassified09.2019.pdf).
583. Id.
584. Id. See European Union External Action Service, EU-
Ukraine Relations--Factsheet (Sept. 30, 2019) (online at
https://eeas.europa.eu/headquarters/headquarters-Homepage/4081/
eu-ukraine-relations-factsheet_Men).
585. The White House, Memorandum of Telephone Conversation
(July 25, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/09/Unclassified09.2019.pdf).
586. Id.; Kent-Taylor Hearing Tr. at 29.
587. The White House, Memorandum of Telephone Conversation
(July 25, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/09/Unclassified09.2019.pdf).
588. Vindman Dep. Tr. at 114.
589. The White House, Memorandum of Telephone Conversation
(July 25, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/09/Unclassified09.2019.pdf).
590. See Office of the Director of National Intelligence,
Assessing Russian Activities and Intentions in Recent U.S.
Elections (Jan. 6, 2017) (online at www.dni.gov/files/
documents/ICA_2017_01.pdf).
591. The White House, Memorandum of Telephone Conversation
(July 25, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/09/Unclassified09.2019.pdf).
592. Charges of Ukrainian Meddling? A Russian Operation,
U.S. Intelligence Says, New York Times (Nov. 22, 2019) (online
at www.nytimes.com/2019/11/22/us/politics/ukraine-russia-
interference.html).
593. The President of Russia, Joint News Conference with
Hungarian Prime Minister Viktor Orban (Feb. 2, 2017) (online at
http://en.kremlin.ru/events/president/news/53806).
594. Hill-Holmes Hearing Tr. at 39-40.
595. President Trump's Former National Security Advisor
`Deeply Disturbed' by Ukraine Scandal: `Whole World Is
Watching,' ABC News (Sept. 29, 2019) (online at https://
abcnews.go.com/Politics/president-trumps-national-security-
advisor-deeply-disturbed-ukraine/story?id=65925477).
596. Hill Dep. Tr. at 234-235.
597. The White House, Memorandum of Telephone Conversation
(July 25, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/09/Unclassified09.2019.pdf).
598. Id.
599. Id.
600. Id.
601. Id.
602. Id.
603. The White House, Remarks by President Trump before
Marine One (Oct. 3, 2019) (online at www.whitehouse.gov/
briefings-statements/remarks-president-trump-marine-one-
departure-67/).
604. Hill Dep. Tr. at 400; Kent-Taylor Hearing Tr. at 73;
Hill-Holmes Hearing Tr. at 63-64; Yovanovitch Hearing Tr. at
49-50; Morrison-Volker Hearing Tr. at 23.
605. Kent Dep. Tr. at 45.
606. Kent-Taylor Hearing Tr. at 116.
607. Yovanovitch Hearing Tr. at 50.
608. See Section I, Chapter 1.
609. Kent Dep. Tr. at 44-50.
610. Morrison-Volker Hearing Tr. at 23.
611. Id.
612. See Section I, Chapter 1.
613. The White House, Memorandum of Telephone Conversation
(July 25, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/09/Unclassified09.2019.pdf).
614. Yovanovitch Dep. Tr. at 192-193.
615. Id.
616. Ambassador Volker was the only witness to testify that
President Trump's reference to the ``prosecutor'' during the
July 25 call was to Mr. Shokin, not Mr. Lutsenko. See Volker
Transcribed Interview Tr. at 355. However, Mr. Holmes testified
that, on July 26--the day after the call--he spoke with
President Zelensky's Chief of Staff Andriy Bohdan who told
Holmes that ``President Trump had expressed interest during the
previous day's phone call in President Zelensky's personnel
decisions related to the Prosecutor General's office,'' which
Mr. Holmes understood to refer to Mr. Lutsenko once he saw the
July 25 call transcript. Holmes Dep. Tr. at 22, 49. In
addition, in a text message to Taylor and Sondland after his
July 19 breakfast with Giuliani, Volker emphasized that ``Most
impt [important] is for Zelensky to say'' on the July 25 call
``that he will help investigation--and address any specific
personnel issues--if there are any.'' Kurt Volker Document
Production, Bates KV00000037 (Oct. 2, 2019).
617. The White House, Memorandum of Telephone Conversation
(July 25, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/09/Unclassified09.2019.pdf).
618. Id.
619. Hill-Holmes Hearing Tr. at 55.
620. Holmes Dep. Tr. at 49-50.
621. Kent-Taylor Hearing Tr. at 25.
622. Morrison-Volker Hearing Tr. at 19.
623. Hill-Holmes Hearing Tr. at 18.
624. In-Town Pool Report #6--Ukraine Call, White House Pool
Report (July 25, 2019) (online at https://publicpool kinja.com/
subject-in-town-pool-report-6-ukraine-call-1836700221).
625. Vindman Dep. Tr. at 42-43.
626. Vindman-Williams Hearing Tr. at 31-33; Morrison-Volker
Hearing Tr. at 34.
627. Vindman Dep. Tr. at 46-47.
628. Taylor Dep. Tr. at 29.
629. Vindman Dep. Tr. at 94.
630. Id. at 46-47.
631. Vindman-Williams Hearing Tr. at 28.
632. Vindman Dep. Tr. at 147.
633. Vindman-Williams Hearing Tr. at 28-29.
634. Vindman Dep. Tr. at 96-97.
635. Id. at 97-98.
636. Morrison-Volker Hearing Tr. at 29.
637. Morrison Dep. Tr. at 23-24.
638. Id. at 41-42, 191-192.
639. Id. at 97.
640. Id.
641. Id. at 101.
642. Id. at 41.
643. Id. at 43.
644. Id. at 44.
645. Id. at 16.
646. Id. at 101.
647. Morrison-Volker Hearing Tr. at 38.
648. Vindman Dep. Tr. at 121.
649. Id. at 122.
650. Id. at 122-123.
651. Id. at 121.
652. Id. at 123-124.
653. Morrison Dep. Tr. at 121.
654. Id. at 55-56.
655. Id. at 55-56, 121-123.
656. Id. at 270.
657. Williams Dep. Tr. at 16, 63.
658. Id. at 149.
659. Vindman-Williams Hearing Tr. at 34.
660. Williams Dep. Tr. at 148.
661. Vindman-Williams Hearing Tr. at 29.
662. Williams Dep. Tr. at 54, 149.
663. Vindman Dep. Tr. at 54-55 (``There's one other
substantive item in the next paragraph from Zelensky, where it
says `He or she will look into the situation specifically to
the company'--it shouldn't be `the company.' It should be `to
Burisma that you mentioned.' Because I think, you know, frankly
these are not necessarily folks that are familiar with the
substance. So President Zelensky specifically mentioned the
company Burisma.'').
664. Vindman-Williams Hearing Tr. at 61.
665. Vindman Dep. Tr. at 89.
666. Williams Dep. Tr. at 68-69.
Q: Okay. When the transcript was made available to
the VP's office, do you remember when that occurred?
A: My colleagues--I can't remember the precise time,
but before the end of the day that day my colleagues
who help prepare the Vice President's briefing book
received a hard copy of the transcript from the White
House Situation Room to include in that book. I didn't
personally see it, but I understood that they had
received it because we wanted to make sure the Vice
President got it.
Q: On the 25th or 26th?
A: It was on the 25th.
667. Vindman Dep. Tr. at 139-141.
668. Kent Dep. Tr. at 163-165.
669. Holmes Dep. Tr. at 107.
670. Id. at 21-22.
671. Kent-Taylor Hearing Tr. at 38; Hill-Holmes Hearing Tr.
at 26.
672. Morrison-Volker Hearing Tr. at 74 (``Yes. So I was not
on the phone call. I had arrived in Ukraine, and I had had that
lunch with Mr. Yermak that we saw on the day of the phone call.
I had been pushing for the phone call because I thought it was
important to renew the personal connection between the two
leaders and to congratulate President Zelensky on the
parliamentary election. The readout I received from Mr. Yermak
and also from the U.S. side--although I'm not exactly sure who
it was on the U.S. side, but there was U.S. and a Ukrainian
readout--were largely the same, that it was a good call, that
it was a congratulatory phone call for the President winning
the parliamentary election. President Zelensky did reiterate
his commitment to reform and fighting corruption in Ukraine,
and President Trump did reiterate his invitation to President
Zelensky to come visit him in the White House. That's exactly
what I thought the phone call would be, so I was not surprised
at getting that as the readout.'').
673. Holmes Dep. Tr. at 22.
674. Id. at 22, 48-49.
675. Id. at 49.
676. Id. at 49.
677. Id. at 22.
678. Hill-Holmes Hearing Tr. at 27.
679. Id. at 48-49.
680. Croft Dep. Tr. at 118-119.
681. Sondland Hearing Tr. at 25; Kent-Taylor Hearing Tr. at
38.
682. Morrison-Volker Hearing Tr. at 89-90.
683. Holmes Dep. Tr. at 64.
684. Kent-Taylor Hearing Tr. at 38.
685. Hill-Holmes Hearing Tr. at 27.
686. Id.
687. Id. at 27-28.
688. Id.
689. Id.
690. Holmes Dep. Tr. at 108.
691. Hill-Holmes Hearing Tr. at 49.
692. Sondland Hearing Tr. at 25-26.
693. Hill-Holmes Hearing Tr. at 28.
694. Id.
695. Id. at 49 (``The restaurant has sort of glass doors
that open onto a terrace, and we were at the first tables on
the terrace, so immediately outside of the interior of the
restaurant. The doors were all wide open. There were--there was
tables, a table for four, while I recall it being two tables
for two pushed together. In any case, it was quite a wide
table, and the table was set. There was sort of a table runner
down the middle. I was directly across from Ambassador
Sondland. We were close enough that we could, you know, share
an appetizer between us, and then the two staffers were off to
our right at this next table.'').
696. Hill-Holmes Hearing Tr. at 28.
697. Id.
698. Holmes Dep. Tr. at 160.
699. Hill-Holmes Hearing Tr. at 28.
700. Id. at 50.
Q: Now, you said that you were able to hear President
Trump's voice through the receiver. How were you able
to hear if it was not on speaker phone?
A: It was several things. It was quite loud when the
President came on, quite distinctive. I believe
Ambassador Sondland also said that he often speaks very
loudly over the phone, and I certainly experienced
that. When the President came on, he sort of winced and
held the phone away from his ear like this, and he did
that for the first couple exchanges. I don't know if he
then turned the volume down, if he got used to it, if
the President moderated his volume. I don't know. But
that's how I was able to hear.
701. Id. at 28-29.
702. Trump Denies Discussing Ukraine Investigations with
Sondland in July Phone Call, Axios (Nov. 13, 2019) (online at:
www.axios.com/trump-denies-ukraine-investigation-sondland-
6063f555-2629-4f99-b2f9-fd38739c0548.html).
703. Sondland Hearing Tr. at 26.
704. Id. at 46.
705. Id. at 26.
706. Id.
707. Id. at 48.
708. Holmes Dep. Tr. at 25.
709. Id. at 25-26.
710. Sondland Hearing Tr. at 49-50. Ambassador Sondland
opined that, while he may have referred to an investigation
that Mr. Giuliani was pushing as an example of an investigation
that President Trump cared about, he believed that he would
have said ``Burisma, not Biden.'' He testified, however:
Q: But do you recall saying at least referring to an
investigation that Rudy Giuliani was pushing? Is that
something that you likely would have said?
A: I would have, yes.
Id. at 50.
711. Sondland Hearing Tr. at 50.
712. Holmes Dep. Tr. at 67.
713. Id. at 68-69.
714. Hill-Holmes Hearing Tr. at 30.
715. Id. at 107.
716. Id. at 34.
717. Holmes Dep. Tr. at 80.
718. Id. at 80-81.
719. Kurt Volker Document Production, Bates KV00000007
(Oct. 2, 2019).
720. Id.
721. Id.
722. Id. at Bates KV00000019.
723. Volker Transcribed Interview Tr. at 112.
724. Kurt Volker Document Production, Bates KV00000019
(Oct. 2, 2019).
725. Morrison-Volker Hearing Tr. at 42.
726. Id.
727. Id. at 20-21.
728. Kurt Volker Document Production, Bates KV00000019
(Oct. 2, 2019).
729. Id. at Bates KV00000007.
730. AT&T Document Production, Bates
ATTHPSCI_20190930_02786.
731. Kurt Volker Document Production, Bates KV00000007
(Oct. 2, 2019).
732. Sondland Dep. Tr. at 192-193.
733. Kurt Volker Document Production, Bates KV00000007
(Oct. 2, 2019).
734. AT&T Document Production, Bates
ATTHPSCI_20190930_02797.
735. Id.
736. Id.
737. Id. at Bates ATTHPSCI_20190930_03326.
738. Id.
739. Id.
740. Id.
741. Id.
742. Id.
743. Id. at Bates ATTHPSCI_20190930_02798.
744. Id.
745. Id.
746. Id.
747. Id.
748. AT&T Document Production, Bates
ATTHPSCI_20190930_02799.
749. Id. at Bates ATTHPSCI_20190930_02801.
750. Kurt Volker Document Production, Bates KV00000019
(Oct. 2, 2019).
751. Id.
752. Id.
753. Id.
754. AT&T Document Production, Bates
ATTHPSCI_20190930_02802-03, 02813, 03326, 03719.
755. Id. at Bates ATTHPSCI_20190930_03326.
756. Id. at Bates ATTHPSCI_20190930_02802.
757. Id. at Bates ATTHPSCI_20190930_02803.
758. Id. at Bates ATTHPSCI_20190930_03719.
759. Id.
760. Id. at Bates ATTHPSCI_20190930_02803.
761. Id.
762. Id.
763. Id.
764. Id.
765. Kurt Volker Document Production, Bates
KV00000004_KV00000005 (Oct. 2, 2019).
766. Id. at Bates KV00000004-KV00000005; AT&T Document
Production, Bates ATTHPSCI_20190930_02805-06.
767. Kurt Volker Document Production, Bates KV00000023
(Oct. 2, 2019).
768. Id.
769. Id.
770. Verizon Document Production.
771. Kurt Volker Document Production, Bates KV00000042
(Oct. 2, 2019).
772. Sondland Dep. Tr. at 290; Sondland Hearing Tr. at 100-
101.
773. Kurt Volker Document Production, Bates KV00000042
(Oct. 2, 2019).
774. Sondland Dep. Tr. at 291.
775. Id.
776. Kurt Volker Document Production, Bates KV00000019
(Oct. 2, 2019).
777. Id.
778. Id.
779. Id. at Bates KV00000042.
780. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong., at 15 (Nov. 20, 2019).
781. Kurt Volker Document Production, Bates KV00000042
(Oct. 2, 2019).
782. Sondland Dep. Tr. at 291-292.
783. Id.
784. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong., at 14 (Nov. 20, 2019).
785. Kurt Volker Document Production, Bates KV00000005
(Oct. 2, 2019).
786. AT&T Document Production, Bates
ATTHPSCI_20190930_02816.
787. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong., at 22 (Nov. 20, 2019).
788. Sondland Hearing Tr. at 102.
789. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong., at 22 (Nov. 20, 2019).
790. Sondland Hearing Tr. at 28.
791. Kurt Volker Document Production, Bates KV00000020
(Oct. 2, 2019).
792. Id. at Bates KV00000007.
793. AT&T Document Production, Bates
ATTHPSCI_20190930_02828.
794. Volker Transcribed Interview Tr. at 113.
795. Id. at 71-72.
796. Kurt Volker Document Production, Bates KV00000023
(Oct. 2, 2019).
797. Id.
798. Id.
799. Id.
800. WhatsApp Security (online at www.whatsapp.com/
security/) (accessed Nov. 29, 2019).
801. Kurt Volker Document Production, Bates KV00000043
(Oct. 2, 2019).
802. Id.
803. Id. at Bates KV00000023.
804. Id.
805. Volker Transcribed Interview Tr. at 43-44, 113-114.
806. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong., at 5 (Nov. 20, 2019).
807. Sondland Hearing Tr. at 18.
808. Volker Transcribed Interview Tr. at 191, 197-198.
809. Id. at 191-192.
810. Id. at 201.
811. Id. at 198.
812. Id. at 197.
813. Trump Hasn't Talked to Attorney General About Having
Ukraine Investigate Biden, DOJ Says, CNN (Sept. 25, 2019)
(online at www.cnn.com/politics/live-news/trump-impeachment-
inquiry-09-25-2019/h_619f3c67775916f27e22898fbed210f2).
814. Cleaning Up Ukraine in the Shadow of Trump, The
Financial Times (Nov. 28, 2019) (online at www.ft.com/content/
eb8e4004-1059-11ea-a7e6-62bf4f9e548a).
815. Id.
816. Taylor Dep. Opening Statement at 9.
817. Id.
818. Volker Transcribed Interview Tr. at 196-197.
819. Taylor Dep. Opening Statement at 9.
820. Kurt Volker Document Production, Bates KV00000043
(Oct. 2, 2019).
821. Volker Transcribed Interview Tr. at 196-197.
822. Kent Dep. Tr. at 261.
823. Id. at 262-263.
824. Id. at 264.
825. Id. at 264-265.
826. Kurt Volker Document Production, Bates KV00000020
(Oct. 2, 2019).
827. Id. at Bates KV00000043.
828. Id.
829. Id.
830. Volker Transcribed Interview Opening Statement at 8.
831. Volker Transcribed Interview Tr. at 44.
832. Morrison-Volker Hearing Tr. at 21.
833. Volker Transcribed Interview Tr. at 259-260.
834. Id. at 260.
835. Morrison-Volker Hearing Tr. at 128.
836. Kurt Volker Document Production, Bates KV00000043
(Oct. 2, 2019).
837. Volker Transcribed Interview Tr. at 199-200.
838. Hill-Holmes Hearing Tr. at 31-32, 68; Sondland Hearing
Tr. at 55-57.
839. Cooper Dep. Tr. at 71.
840. Id. at 62, 66.
841. Id. at 62.
842. Morrison-Volker Hearing Tr. at 90-91.
843. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, at 23,
Impeachment, 116th Cong. (Nov. 20, 2019).
844. Id.
845. Sondland Hearing Tr. at 104.
846. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, at 18,
Impeachment, 116th Cong. (Nov. 20, 2019).
847. Sondland Hearing Tr. at 44.
848. Id. at 75.
849. Id. at 76.
850. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, at 23,
Impeachment, 116th Cong. (Nov. 20, 2019).
851. Hill-Holmes Hearing Tr. at 30.
852. Id.
853. Sondland Hearing Tr. at 28.
854. Id. at 106.
855. Hill-Holmes Hearing Tr. at 31-32.
856. Id. at 31.
857. Kent-Taylor Hearing Tr. at 40.
858. Taylor Dep. Tr. at 230.
859. Kent-Taylor Hearing Tr. at 40.
860. Hill-Holmes Hearing Tr. at 8.
861. Kurt Volker Document Production, Bates KV00000020
(Oct. 2, 2019).
862. Volker Transcribed Interview Tr. at 80-81.
A: By the time it hit Politico publicly, I believe it
was the end of August. And I got a text message from,
it was either the Foreign Minister or--I think it was
the future Foreign Minister. And, you know, basically,
you're just--you're--I have to verbalize this. You're
just trying to explain that we are trying this. We have
a complicated system. We have a lot of players in this.
We are working this. Give us time to fix it.
Q: So anybody on the Ukrainian side of things ever
express like grave concern that this would not get
worked out?
A: Not that it wouldn't get worked out, no, they did
not. They expressed concern that, since this has now
come out publicly in this Politico article, it looks
like that they're being, you know, singled out and
penalized for some reason. That's the image that that
would create in Ukraine.
863. Taylor Dep. Tr. at 34.
864. Id. at 137-138.
865. Id.
866. Kent-Taylor Hearing Tr. at 174.
867. Id. at 40.
868. Id.
869. Hill-Holmes Hearing Tr. at 31-32.
870. Id.
871. Id. at 68.
872. Holmes Dep. Tr. at 58.
873. Kent-Taylor Hearing Tr. at 40.
874. Trump, in August Call with GOP Senator, Denied
Official's Claim on Ukraine Aid, Wall Street Journal (Oct. 4,
2019) (online at www.wsj.com/articles/trump-administration-
used-potential-meeting-to-pressure-ukraine-on-biden-texts-
indicate-11570205661).
875. Id.
876. Letter from Senator Ron Johnson to Ranking Member Jim
Jordan, House Committee on Oversight and Reform, and Ranking
Member Devin Nunes, House Permanent Select Committee on
Intelligence (Nov. 18, 2019) (online at
www.ronjohnson.senate.gov/public/_cache/files/e0b73c19-9370-
42e6-88b1-b2458eaeeecd/johnson-to-jordan-nunes.pdf).
877. Id.
878. The White House, Memorandum of Telephone Conversation
(July 25, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/09/Unclassified09.2019.pdf).
879. Office of the Director of National Intelligence,
Background to ``Assessing Russian Activities and Intentions in
Recent US Elections'': The Analytic Process and Cyber Incident
Attribution (Jan. 6, 2017) (online at www.dni.gov/files/
documents/ICA_2017_01.pdf).
880. Letter from Senator Ron Johnson to Ranking Member Jim
Jordan, Committee on Oversight and Reform, and Ranking Member
Devin Nunes, Permanent Select Committee on Intelligence (Nov.
18, 2019) (online at www.ronjohnson.senate.gov/public/_cache/
files/e0b73c19-9370-42e6-88b1-b2458eaeeecd/johnson-to-jordan-
nunes.pdf).
881. Sondland Hearing Tr. at 30.
882. Volker Transcribed Interview Tr. at 251-252; Kent-
Taylor Hearing Tr. at 41.
883. Williams Dep. Tr. at 74-77.
884. Id. at 76.
885. Id. at 78-79.
886. Sondland Hearing Tr. at 30.
887. Id. at 38. See also Sondland Hearing Tr. at 57:
A: I don't know exactly what I said to him. This was
a briefing attended by many people, and I was invited
at the very last minute. I wasn't scheduled to be
there. But I think I spoke up at some point late in the
meeting and said, it looks like everything is being
held up until these statements get made, and that's my,
you know, personal belief.
Q: And Vice President Pence just nodded his head?
A: Again, I don't recall any exchange or where he
asked me any questions. I think he--it was sort of a
duly noted response.
Q: Well, he didn't say, Gordon, what are you talking
about?
A: No, he did not.
Q: He didn't say, what investigations?
A: He did not.
888. Pence Disputes that Sondland Raised Concerns to Him
About Ukraine Aid-Investigations Link, Wall Street Journal
(Nov. 20, 2019) (online at www.wsj.com/livecoverage/gordon-
sondland-testifies-impeachment/card/1574268547).
889. Taylor Dep. Tr. at 190.
890. Id. at 35.
891. Id. at 190-191.
892. Williams Dep. Tr. at 81.
893. Id. at 82.
894. Id. at 82-83.
895. Id. at 83.
896. Id.
897. How a CIA Analyst, Alarmed by Trump's Shadow Foreign
Policy, Triggered an Impeachment Inquiry, Washington Post (Nov.
16, 2019) (online at www.washingtonpost.com/national-security/
how-a-cia-analyst-alarmed-by-trumps-shadow-foreign-policy-
triggered-an-impeachment-inquiry/2019/11/15/042684a8-03c3-11ea-
8292-c46ee8cb3dce_story.html).
898. Hill-Holmes Hearing Tr. at 31.
899. Sondland Hearing Tr. at 31.
900. Morrison Dep. Tr. at 134.
901. Id. at 155.
902. Id.
903. Id. at 137.
904. Id. at 182.
905. Id. at 184.
906. Id. at 228.
907. Id. at 154.
908. Kent-Taylor Hearing Tr. at 42.
909. Id.
910. Id. at 57.
911. Kurt Volker Document Production, Bates KV00000039
(Oct. 2, 2019).
912. Kent-Taylor Hearing Tr. at 42.
913. Taylor Dep. Tr. at 190.
914. Id.
915. Id.
916. Kent-Taylor Hearing Tr. at 60.
917. Sondland Hearing Tr. at 59.
918. Id. at 59-60.
919. Morrison Dep. Tr. at 190-191
920. Morrison-Volker Hearing Tr. at 52.
921. Id. at 53-54; Morrison Dep. Tr. at 238.
922. Kent-Taylor Hearing Tr. at 43-44.
923. Kurt Volker Document Production, Bates KV00000053
(Oct. 2, 2019).
924. Kent-Taylor Hearing Tr. at 44.
925. Id.
926. Id.
927. Sondland Hearing Tr. at 109-110.
928. Id.
929. Id. at 110-111.
930. Kent-Taylor Hearing Tr. at 45.
931. Id. at 45, 63.
932. Id. at 45.
933. Sondland Hearing Tr. at 110. Ambassador Volker also
testified that Ambassador Sondland used the same analogy to him
when discussing the release of the hold on security assistance.
Morrison-Volker Hearing Tr. at 96-97.
934. Kurt Volker Document Production, Bates KV00000053
(Oct. 2, 2019).
935. Taylor Dep. Tr. at 209.
936. Kurt Volker Document Production, Bates KV000000053
(Oct. 2, 2019).
937. Kent-Taylor Hearing Tr. at 54.
938. Id.
939. Id.
940. Id.
941. Kurt Volker Document Production, Bates KV00000053
(Oct. 2, 2019).
942. Sondland Dep. Tr. at 217.
943. Sondland Hearing Tr. at 26 (``Was there a quid pro
quo? As I testified previously with regard to the requested
White House call and the White House meeting, the answer is
yes.'').
944. Id. at 41.
945. Id. at 112
946. Id. at 61-62.
947. Taylor Dep. Tr. at 39.
948. Taylor Dep. Tr. at 39.
949. Maguire Hearing Tr. at 110; Whistleblower Compl.
Appendix 2. Public reporting indicates that ``[l]awyers from
the White House counsel's office told Mr. Trump in late August
about the complaint, explaining that they were trying to
determine whether they were legally required to give it to
Congress.'' Trump Knew of Whistle-Blower Complaint When He
Released Aid to Ukraine, New York Times (Nov. 26, 2019) (online
at www.nytimes.com/2019/11/26/us/politics/trump-whistle-blower-
complaint-ukraine.html).
950. Letter from Michael Atkinson, Inspector General of the
Intelligence Community, to Chairman Adam B. Schiff and Ranking
Member Devin Nunes, House Permanent Select Committee on
Intelligence (Sept. 9, 2019) (online at https://
intelligence.house.gov/uploadedfiles/20190909_-
_ic_ig_letter_to_hpsci_on_whistleblower.pdf).
951. Id.
952. Sondland Hearing Tr. at 118. See also Witness
Testimony and Records Raise Questions About Account of Trump's
`No Quid Pro Quo' Call, Washington Post (Nov. 27, 2019) (online
at www.washingtonpost.com/politics/witness-testimony-and-
records-raise-questions-about-account-of-trumps-no-quid-pro-
quo-call/2019/11/27/425545c2-0d49-11ea-8397-
a955cd542d00_story.html).
953. Sondland Hearing Tr. at 118.
954. Id. at 73.
955. Declaration of Ambassador Gordon Sondland, Department
of State, at 1 (Nov. 4, 2019). This addendum did not address
the July 26 telephone conversation that Sondland had with
President Trump, which he only recalled following the testimony
of David Holmes on November 15, 2019. Sondland Hearing Tr. at
46.
956. Declaration of Ambassador Gordon Sondland, Department
of State, at 3 (Nov. 4, 2019).
957. Kent-Taylor Hearing Tr. at 43-44; Morrison Dep. Tr. at
190-191.
958. Morrison Dep. Tr. at 190-191; Kent-Taylor Hearing Tr.
at 43-44.
959. Sondland Hearing Tr. at 109.
960. Id. at 45, 109.
961. Kurt Volker Document Production, Bates KV00000020
(Oct. 2, 2019).
962. Id.
963. Id. at Bates KV00000053.
964. Id.
965. The White House, Press Briefing by Acting Chief of
Staff Mick Mulvaney (Oct. 17, 2019) (online at
www.whitehouse.gov/briefings-statements/press-briefing-acting-
chief-staff-mick-mulvaney/).
966. Id.
967. Id. Ambassador Taylor's testimony contradicted Mr.
Mulvaney's statement about the ubiquity of such quid pro quos
in American foreign policy. Ambassador Taylor testified that in
his decades of military and diplomatic service, he had never
seen another example of foreign aid conditioned on the personal
or political interests of the President. Kent-Taylor Hearing
Tr. at 55. Rather, ``[w]e condition assistance on issues that
will improve our foreign policy, serve our foreign policy,
ensure that taxpayers' money is well-spent.'' Kent-Taylor
Hearing Tr. at 150.
968. There were early concerns raised in the House and
Senate about the frozen aid, even before the news became
public. On August 9, the Democratic leadership of the House and
Senate Appropriations Committees wrote to OMB and the White
House warning that the August 3 letter apportionment might
constitute an illegal impoundment of funds. They urged the
Trump Administration to adhere to the law and obligate the
withheld funding. Letter from Vice Chairman Patrick Leahy,
Senate Committee on Appropriations, and Chairwoman Nita M.
Lowey, House Committee on Appropriations, to Acting Chief of
Staff Mick Mulvaney, The White House, and Acting Director
Russell Vought, Office of Management and Budget (Aug. 9, 2019)
(online at https://appropriations.house.gov/sites/
democrats.appropriations.house.gov/files/documents/
SFOPS%20Apportionment%20Letter%20Lowey-
Leahy%20Signed%202019.8.9.pdf). On August 19, the Democratic
leadership of the House and Senate Budget Committees wrote to
OMB and the White House urging the Administration to comply
with appropriations law and the Impoundment Control Act. Letter
from Chairman John Yarmuth, House Committee on the Budget, and
Ranking Member Bernard Sanders, Senate Committee on the Budget,
to Acting Chief of Staff Mick Mulvaney, The White House (Aug.
19, 2019) (online at https://budget.house.gov/sites/
democrats.budget.house.gov/files/documents/
OMB%20Letter_081919.pdf).
969. Letter from Senators Jeanne Shaheen, Rob Portman,
Richard Durbin, Ron Johnson, and Richard Blumenthal to Acting
White House Chief of Staff Mick Mulvaney (Sept. 3, 2019)
(online at www.shaheen.senate.gov/imo/media/doc/
Ukraine%20Security%20Letter%209.3.2019.pdf).
970. Id.
971. Letter from Chairman Eliot L. Engel and Ranking Member
Michael T. McCaul, House Foreign Affairs Committee to Mick
Mulvaney, Director, and Russell Vought, Acting Director, Office
of Management and Budget, The White House (Sept. 5, 2019)
(online at https://foreignaffairs.house.gov/-cache/files/c/4/
c49328c2-09941b-4c41-8c00-8c1515f0972f/
D1968A9C42455BB3AFC38F97D966857B.ele-mccaul-letter-to-mulvaney-
vought-on-ukraine-assistance.pdf).
972. Trump Tries to Force Ukraine to Meddle in the 2020
Election, Washington Post (Sept. 5, 2019) (online at
www.washingtonpost.com/opinions/global-opinions/is-trump-
strong-arming-ukraines-new-president-for-political-gain/2019/
09/05/4eb239b0-cffa-11e9-8c1c-7c8ee785b855_story.html).
973. Taylor Dep. Tr. at 37-38.
974. Id. at 38.
975. See Letter from Senator Christopher Murphy to Chairman
Adam B. Schiff, House Permanent Select Committee on
Intelligence, and Acting Chairwoman Carolyn Maloney, House
Committee on Oversight and Reform (Nov. 19, 2019) (online at
www.murphy.senate.gov/download/111919-sen-murphy-letter-to-
house-impeachment-investigators-on-ukraine) (``Senator Johnson
and I assured Zelensky that Congress wanted to continue this
funding, and would press Trump to release it immediately.'');
Letter from Senator Ron Johnson to Ranking Member Jim Jordan,
Committee on Oversight and Reform, and Ranking Member Devin
Nunes, Permanent Select Committee on Intelligence (Nov. 18,
2019) (online at www.ronjohnson.senate.gov/public/_cache/files/
e0b73c19-9370-42e6-88b1-b2458eaeeecd/johnson-to-jordan-
nunes.pdf) (``I explained that I had tried to persuade the
president to authorize me to announce the hold was released but
that I was unsuccessful.'').
976. House Permanent Select Committee on Intelligence,
Three House Committees Launch Probe Into Trump and Giuliani
Pressure Campaign (Sept. 9, 2019) (online at https://
intelligence.house.gov/news/
documentsingle.aspx?DocumentID=685).
977. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Pat
Cipollone, Counsel to the President, The White House (Sept. 9,
2019) (online at https://intelligence.house.gov/uploadedfiles/
ele_schiff_cummings_letter_to_cipollone_on_ukraine.pdf).
978. Id.
979. Id.
980. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Michael
R. Pompeo, Secretary of State (Sept. 9, 2019) (online at
https://intelligence.house.gov/uploadedfiles/
ele_schiff_cummings_letter_to_sec_pompeo_on_ukraine.pdf).
981. Morrison Dep. Tr. at 245.
982. Id.
983. Vindman Dep. Tr. at 303.
984. Id. at 304.
985. Letter from Michael Atkinson, Inspector General of the
Intelligence Community, to Chairman Adam B. Schiff and Ranking
Member Devin Nunes, House Permanent Select Committee on
Intelligence (Sept. 9, 2019) (online at https://
intelligence.house.gov/uploadedfiles/20190909_-
_ic_ig_letter_to_hpsci_on_whistleblower. pdf).
986. Id.; see also 50 U.S.C. Sec. 3033(k)(5) (setting forth
procedures for reporting of complaints or information with
respect to an ``urgent concern'' to Congressional intelligence
committees).
987. Maguire Hearing Tr. at 14 (``As a result, we consulted
with the White House Counsel's Office, and we were advised that
much of the information in the complaint was, in fact, subject
to executive privilege, a privilege that I do not have the
authority to waive. Because of that, we were unable to
immediately share the details of the complaint with this
committee but continued to consult with the White House
counsels in an effort to do so.'').
988. Id. at 15-16 (``Because the allegation on its face did
not appear to fall in the statutory framework, my office
consulted with the United States Department of Justice Office
of Legal Counsel. . . . After reviewing the complaint and the
Inspector General's transmission letter, the Office of Legal
Counsel determined that the complaint's allegations do not meet
the statutory definition concerning legal urgent concern, and
found that I was not legally required to transmit the material
to our oversight committee under the Whistleblower Protection
Act.'').
989. Id. at 22-23. See also CIA's Top Lawyer Made `Criminal
Referral' on Complaint about Trump Ukraine Call, NBC News (Oct.
4, 2019) (online at www.nbcnews.com/politics/trump-impeachment-
inquiry/cia-s-top-lawyer-made-criminal-referral-whistleblower-
s-complaint-n1062481) (reporting that the CIA's General
Counsel, Courtney Simmons Elwood, informed NSC chief lawyer
John Eisenberg about an anonymous whistleblower complaint on
August 14, 2019).
990. Maguire Hearing Tr. at 14, 21-22. On September 26,
Acting DNI Maguire testified that he and the ODNI General
Counsel first consulted with the White House counsel's office
before discussing the whistleblower complaint with the
Department of Justice's Office of Legal Counsel:
The Chairman. I'm just trying to understand the
chronology. You first went to the Office of Legal
Counsel, and then you went to the White House Counsel?
Acting Director Maguire. No, no, no, sir. No, sir.
No. We went to the White House first to determine to
ask the question--
The Chairman. That's all I want to know is the
chronology. So you went to the White House first. So
you went to the subject of the complaint for advice
first about whether you should provide the complaint to
Congress?
Acting Director Maguire. There were issues within
this, a couple of things: One, it did appear that it
has executive privilege. If it does have executive
privilege, it is the White House that determines that.
I cannot determine that, as the Director of National
Intelligence.
Id. at 21-22.
991. Trump Knew of Whistle-Blower Complaint When He
Released Aid to Ukraine, New York Times (Nov. 26, 2019) (online
at www.nytimes.com/2019/11/26/us/politics/trump-whistle-blower-
complaint-ukraine.html).
992. Id. The Administration repeatedly referenced privilege
concerns in connection with the whistleblower complaint. See,
e.g., Letter from Jason Klitenic, General Counsel, Office of
the Director of National Intelligence, to Chairman Adam B.
Schiff, House Permanent Select Committee on Intelligence (Sept.
13, 2019) (noting that ``the complaint involves confidential
and potentially privileged communications by persons outside
the Intelligence Community'') (emphasis added); Letter from
Jason Klitenic, General Counsel, Office of the Director of
National Intelligence, to Chairman Adam B. Schiff, House
Permanent Select Committee on Intelligence (Sept. 17, 2019)
(characterizing subpoena to the Acting DNI for documents as
demanding ``sensitive and potentially privileged'' materials
and whistleblower complaint as involving ``potentially
privileged matters relating to the interests of other
stakeholders within the Executive Branch'') (emphasis added).
However, the White House never formally invoked executive
privilege as to the whistleblower complaint. See Maguire
Hearing Tr. at 20 (``Chairman Schiff: So they never asserted
executive privilege, is that the answer? Acting Director
Maguire: Mr. Chairman, if they did, we would not have released
the letters yesterday and all the information that has been
forthcoming.'').
993. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, to Joseph Maguire, Acting
Director of National Intelligence (Sept. 10, 2019) (online at
https://intelligence.house.gov/uploadedfiles/20190910_-
_chm_schiff_letter_to_acting_dni_maguire.pdf).
994. Id.
995. See Letter from Jason Klitenic, General Counsel,
Office of the Director of National Intelligence, to Chairman
Adam B. Schiff, House Permanent Select Committee on
Intelligence (Sept. 13, 2019).
996. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, to Joseph Maguire, Acting
Director of National Intelligence (Sept. 13, 2019) (online at
https://intelligence.house.gov/uploadedfiles/20190913_-
_chm_schiff_letter_to_acting_dni_re_whistleblower_-
_subpoena.pdf).
997. The White House, Memorandum of Telephone Conversation
(July 25, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/09/Unclassified09.2019.pdf).
998. Vindman Dep. Tr. at 305-06; Morrison Dep. Tr. at 242.
999. Morrison Dep. Tr. at 242.
1000. See, e.g., Id. at 244; Vindman Dep. Tr. at 306;
Williams Dep. Tr. at 147.
1001. Cooper Dep. Tr. at 68-69.
1002. Williams Dep. Tr. at 147. Ms. Williams did testify
that President Trump's pressure on President Zelensky to open
investigations into the Bidens on the July 25 call ``shed some
light on possible other motivations behind a security
assistance hold.'' Williams Dep. Tr. at 149.
1003. Sandy Dep. Tr. at 42, 139-140. According to a press
report, after Congress began investigating President Trump's
scheme, the White House Counsel's Office reportedly opened an
internal investigation relating to the July 25 call. As part of
that internal investigation, White House lawyers gathered and
reviewed ``hundreds of documents'' that ``reveal extensive
efforts to generate an after-the-fact justification'' for the
hold on military assistance for Ukraine ordered by President
Trump. These documents reportedly include ``early August email
exchanges between acting chief of staff Mick Mulvaney and White
House budget officials seeking to provide an explanation for
withholding the funds after the president had already ordered a
hold in mid-July on the nearly $400 million in security
assistance.'' White House Review Turns Up Emails Showing
Extensive Effort to Justify Trump's Decision to Block Ukraine
Military Aid, Washington Post (Nov. 24, 2019) (online at
www.washingtonpost.com/politics/white-house-review-turns-up-
emails-showing-extensive-effort-to-justify-trumps-decision-to-
block-ukraine-military-aid/2019/11/24/2121cf98-0d57-11ea-bd9d-
c628fd48b3a0_story.html). The White House has withheld these
documents from the Committee, so the Committee cannot verify
the accuracy of the reporting as of the publication of this
report.
1004. Sandy Dep. Tr. at 49.
1005. Id. at 42, 44.
1006. Id. at 180.
1007. Vindman Dep. Tr. at 306.
1008. Cooper Dep. Tr. at 83.
1009. Id. at 47-48, 58, 112-114; Sandy Dep. Tr. at 34-35,
85-86, 95, 128, 129-131, 133; Morrison Dep. Tr. at 163; Kent
Dep. Tr. at 308-309; Reeker Dep. Tr. at 133. News reports
indicate that a confidential White House review of President
Trump's hold on military assistance to Ukraine has identified
hundreds of documents revealing ``extensive efforts to generate
an after-the-fact justification for the decision and a debate
over whether the delay was legal.'' White House Review Turns Up
Emails Showing Extensive Effort to Justify Trump's Decision to
Block Ukraine Military Aid, Washington Post (Nov. 24, 2019)
(online at www.washingtonpost.com/politics/white-house-review-
turns-up-emails-showing-extensive-effort-to-justify-trumps-
decision-to-block-ukraine-military-aid/2019/11/24/2121cf98-
0d57-11ea-bd9d-c628fd48b3a0_story.html). According to ``two
people briefed on an internal White House review,'' in August,
Acting Chief of Staff Mulvaney ``asked . . . whether there was
a legal justification for withholding hundreds of millions of
dollars in military aid to Ukraine.'' Mulvaney Asked About
Legal Justification for Withholding Ukraine Aid, New York Times
(Nov. 24, 2019) (online at www.nytimes.com/2019/11/24/us/
politics/mulvaney-ukraine-aid.html). Reports indicate that,
``[e]mails show [OMB Director] Vought and OMB staffers arguing
that withholding aid was legal, while officials at the National
Security Council and State Department protested. OMB lawyers
said that it was legal to withhold the aid, as long as they
deemed it a `temporary' hold.'' White House Review Turns Up
Emails Showing Extensive Effort to Justify Trump's Decision to
Block Ukraine Military Aid, Washington Post (Nov. 24, 2019)
(online at www.washingtonpost.com/politics/white-house-review-
turns-up-emails-showing-extensive-effort-to-justify-trumps-
decision-to-block-ukraine-military-aid/2019/11/24/2121cf98-
0d57-11ea-bd9d-c628fd48b3a0_story.html). The White House and
State Department's obstruction of Congress has prevented the
Committee from obtaining any documents on this matter and,
therefore, the Committee cannot verify the accuracy of this
reporting as of the publication of this report.
1010. Cooper Dep. Tr. at 80.
1011. Sandy Dep. Tr. at 146-147.
1012. See Department of Defense, DOD Budget Materials
(FY2011-FY2018) (online at https://comptroller.defense.gov/
Budget-Materials/). In 1974, President Nixon impounded 15-20
percent of a number of specific programs, which prompted the
passage of the Impoundment Control Act of 1974. Congressional
Research Service, The Congressional Budget Act of 1974 (P.L.
93-344) Legislative History and Analysis (Feb. 26, 1975).
1013. Department of Defense and Labor, Health and Human
Services, and Education Appropriations Act, 2019 and Continuing
Appropriations Act, 2019, Pub. L. No. 115-245, Sec. 9013
(2018); Sandy Dep. Tr. at 147.
1014. Continuing Appropriations Act 2020, and Health
Extenders Act of 2019, Pub. L. No. 116-59, Sec. 124 (2019).
1015. Cooper Dep. Tr. at 98.
1016. $35 Million in Pentagon Aid Hasn't Reached Ukraine
Despite White House Assurances, L.A. Times (Nov. 19, 2019)
(online at www.latimes.com/politics/story/2019-11-19/documents-
show-nearly-40-million-in-ukraine-aid-delayed-despite-white-
house-assurances).
1017. Zelensky Planned to Announce Trump's `Quo' on My
Show. Here's What Happened, Washington Post (Nov. 14, 2019)
(online at www.washingtonpost.com/opinions/zelensky-was-
planning-to-announce-trumps-quid-pro-quo-on-my-show-heres-what-
happened/2019/11/14/47938f32-072a-11ea-8292-
c46ee8cb3dce_story.html).
1018. Id.
1019. Taylor Dep. Tr. at 40.
1020. Kent-Taylor Hearing Tr. at 106.
1021. Id.
1022. Hill-Holmes Hearing Tr. at 33.
1023. Id.
1024. Taylor Dep. Tr. at 41.
1025. Id. at 217-18.
1026. Id.
1027. Holmes Dep. Tr. at 30.
1028. Zelensky Planned to Announce Trump's `Quo' on My
Show. Here's What Happened, Washington Post (Nov. 14, 2019)
(online at www.washingtonpost.com/opinions/zelensky-was-
planning-to-announce-trumps-quid-pro-quo-on-my-show-heres-what-
happened/2019/11/14/47938f32-072a-11ea-8292-
c46ee8cb3dce_story.html).
1029. Hill-Holmes Hearing Tr. at 33; see also Zelensky
Planned to Announce Trump's `Quo' on My Show. Here's What
Happened, Washington Post (Nov. 14, 2019) (online at
www.washingtonpost.com/opinions/zelensky-was-planning-to-
announce-trumps-quid-pro-quo-on-my-show-heres-what-happened/
2019/11/14/47938f32-072a-11ea-8292-c46ee8cb3dce_story.html).
1030. Kent. Dep. Tr. at 333.
1031. Id. at 329-31.
1032. Id. at 330.
1033. Zelensky Planned to Announce Trump's `Quo' on My
Show. Here's What Happened, Washington Post (Nov. 14, 2019)
(online at www.washingtonpost.com/opinions/zelensky-was-
planning-to-announce-trumps-quid-pro-quo-on-my-show-heres-what-
happened/2019/11/14/47938f32-072a-11ea-8292-
c46ee8cb3dce_story.html).
1034. Hill-Holmes Hearing Tr. at 46-47.
1035. Williams Dep. Tr. at 156.
1036. Id.
1037. Pence Says He's Working to Release Transcripts of His
Calls with Ukraine Leader, Politico (Oct. 9, 2019) (online at
www.politico.com/news/2019/10/09/pence-ukraine-zelensky-biden-
043684).
1038. Pence: I Don't Object To Releasing My Call
Transcripts With Zelensky, Fox Business (Nov. 7, 2019) (online
at www.realclearpolitics.com/video/2019/11/07/
pence_i_dont_object_to_
releasing_my_call_transcripts_with_zelensky.html).
1039. Rudy Giuliani's Remarkable Ukraine Interview,
Annotated, Washington Post (Sept. 20, 2019) (online at
www.washingtonpost.com/politics/2019/09/20/rudy-giulianis-
remarkable-ukraine-interview-annotated/).
1040. The White House, Remarks by President Trump and
President Duda of Poland Before Bilateral Meeting (Sept. 23,
2019) (online at www.whitehouse.gov/briefings-statements/
remarks-president-trump-president-duda-poland-bilateral-
meeting/).
1041. The White House, Remarks by President Trump Upon
Arriving at the U.N. General Assembly (Sept. 24, 2019) (online
at www.whitehouse.gov/briefings-statements/remarks-president-
trump-upon-arriving-u-n-general-assembly-new-york-ny/).
1042. The White House, Remarks by President Trump and
President Zelensky of Ukraine Before Bilateral Meeting (Sept
25, 2019) (online at www.whitehouse.gov/briefings-statements/
remarks-president-trump-president-zelensky-ukraine-bilateral-
meeting-new-york-ny/).
1043. The White House, Remarks by President Trump at the
Swearing-in Ceremony of Secretary of Labor Eugene Scalia (Sept
30, 2019) (online at www.whitehouse.gov/briefings-statements/
remarks-president-trump-swearing-ceremony-secretary-labor-
eugene-scalia/).
1044. The White House, Remarks by President Trump and
President Niinisto of the Republic of Finland Before Bilateral
Meeting (Oct. 2, 2019) (www.whitehouse.gov/briefings-
statements/remarks-president-trump-president-niinisto-republic-
finland-bilateral-meeting. Remarks by President Trump Before
Marine One Departure).
1045. The White House, Remarks by President Trump Before
Marine One Departure (Oct. 3, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-marine-one-departure-67/).
1046. The White House, Remarks by President Trump Before
Marine One Departure (Oct. 4, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-marine-one-departure-68).
1047. Id.
1048. The White House, Remarks by President Trump Before
Marine One Departure (Oct. 3, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-marine-one-departure-67/). These recent statements by
President inviting foreign assistance for his personal
political interests are consistent with his statements to
George Stephanopoulos of ABC News on June 12, when President
Trump indicated a desire to receive dirt on a political
opponent provided by a foreign country. ABC News' Oval Office
interview with President Trump, ABC News (June 13, 2019)
(online at https://abcnews.go.com/Politics/abc-news-oval-
office-interview-president-donald-trump/story?id=63688943).
1049. Morrison-Volker Hearing Tr. at 46-47, 91-92.
1050. Vindman Dep. Tr. at 158-19; Holmes Dep. Tr. at 100;
Kent-Taylor Hearing Tr. at 43.
1051. Kent-Taylor Hearing Tr. at 24.
1052. Hill-Holmes Hearing Tr. at 46.
1053. Kent-Taylor Hearing Tr. at 165.
1054. Id.
1055. Id. at 24.
1056. Id. at 55-56.
1057. Id. at 164.
1058. Kent Dep. Tr. at 329; Morrison-Volker Hearing Tr. at
138-139.
1059. Morrison-Volker Hearing Tr. at 139.
1060. Id.
Section II. The President's Obstruction of the House of
Representatives' Impeachment Inquiry
1. Constitutional Authority for Congressional Oversight and Impeachment
Article I of the Constitution vests in the House of
Representatives the ``sole Power of Impeachment.'' Congress is
authorized to conduct oversight and investigations in support
of its Article I powers. The Supreme Court--and previous
Presidents--have acknowledged these authorities.
Overview
The House's Constitutional and legal authority to conduct
an impeachment inquiry is clear, as is the duty of the
President to cooperate with the House's exercise of this
authority. The Constitution vests in the House of
Representatives the ``sole Power of Impeachment'' as well as
robust oversight powers. As the Founders intended, the courts
have agreed, and prior Presidents have acknowledged, the
House's sweeping powers to investigate are at their peak during
an impeachment inquiry of a President. Congress has also
enacted statutes to support its power to investigate and
oversee the Executive Branch.
Unlike President Donald J. Trump, past Presidents who were
the subject of impeachment inquiries acknowledged Congress'
authority to investigate and--to varying degrees--complied with
information requests and subpoenas. Even so, the House has
previously determined that partial noncooperation can serve as
a ground for an article of impeachment against a President as
it would upend the separation of powers to allow the President
to dictate the scope of an impeachment inquiry. When President
Richard Nixon withheld tape recordings and produced heavily
edited and inaccurate records, the House Judiciary Committee
approved an article of impeachment for obstruction.
Constitutional Power of Congress to Investigate--and to Impeach
Article I of the U.S. Constitution gives the House of
Representatives the ``sole Power of Impeachment.''\1\ The
Framers intended the impeachment power to be an essential check
on a President who might engage in corruption or abuse power.
For example, during the Constitutional Convention, George Mason
stated:
No point is of more importance than that the right of
impeachment should be continued. Shall any man be above
Justice? Above all shall that man be above it, who can
commit the most extensive injustice? . . . Shall the
man who has practised corruption & by that means
procured his appointment in the first instance, be
suffered to escape punishment, by repeating his
guilt?\2\
Congress is empowered to conduct oversight and
investigations to carry out its authorities under Article I.\3\
In light of the core nature of the impeachment power to the
nation's Constitutional system of checks and balances,
Congress' investigative authority is at its zenith during an
impeachment inquiry.\4\
As the House Judiciary Committee explained during the
impeachment of President Nixon:
Whatever the limits of legislative power in other
contexts--and whatever need may otherwise exist for
preserving the confidentiality of Presidential
conversations--in the context of an impeachment
proceeding the balance was struck in favor of the power
of inquiry when the impeachment provision was written
into the Constitution.\5\
This conclusion echoed an early observation on the floor of
the House of Representatives that the ``House possessed the
power of impeachment solely, and that this authority certainly
implied the right to inspect every paper and transaction in any
department, otherwise the power of impeachment could never be
exercised with any effect.''\6\
The House's ``sole Power of Impeachment'' is the mechanism
provided by the Constitution to hold sitting Presidents
accountable for serious misconduct. The Department of Justice
has highlighted the importance of the impeachment power in
justifying the Department's view that a sitting President
cannot be indicted or face criminal prosecution while in
office.\7\ The Department's position that the President is
immune from prosecution has not been endorsed by Congress or
the courts, but as long as the Department continues to refuse
to prosecute a sitting President, Congress has a heightened
responsibility to exercise its impeachment power, if necessary,
to ensure that no President is ``above the law.''\8\
The Supreme Court has recognized that Congress has broad
oversight authority under the Constitution to inquire about a
wide array of topics, even outside the context of impeachment:
The power of inquiry has been employed by Congress
throughout our history, over the whole range of the
national interests concerning which Congress might
legislate or decide upon due investigation not to
legislate; it has similarly been utilized in
determining what to appropriate from the national
purse, or whether to appropriate. The scope of the
power of inquiry, in short, is as penetrating and
farreaching as the potential power to enact and
appropriate under the Constitution.\9\
The Supreme Court has made clear that Congress' authority
to investigate includes the authority to compel the production
of information by issuing subpoenas,\10\ a power the House has
delegated to its committees pursuant to its Constitutional
authority to ``determine the Rules of its Proceedings.''\11\
The Supreme Court has affirmed that compliance with
Congressional subpoenas is mandatory:
It is unquestionably the duty of all citizens to
cooperate with the Congress in its efforts to obtain
the facts needed for intelligent legislative action. It
is their unremitting obligation to respond to
subpoenas, to respect the dignity of the Congress and
its committees and to testify fully with respect to
matters within the province of proper
investigation.\12\
Federal courts have held that the ``legal duty'' to respond
to Congressional subpoenas extends to the President's ``senior-
level aides''' and that the failure to comply violates the
separation of powers principles in the Constitution\13\ As one
court recently explained:
[W]hen a committee of Congress seeks testimony and
records by issuing a valid subpoena in the context of a
duly authorized investigation, it has the
Constitution's blessing, and ultimately, it is acting
not in its own interest, but for the benefit of the
People of the United States. If there is fraud or abuse
or waste or corruption in the federal government, it is
the constitutional duty of Congress to find the facts
and, as necessary, take corrective action. Conducting
investigations is the means that Congress uses to carry
out that constitutional obligation. Thus, blatant
defiance of Congress' centuries-old power to compel the
performance of witnesses is not an abstract injury, nor
is it a mere banal insult to our democracy. It is an
affront to the mechanism for curbing abuses of power
that the Framers carefully crafted for our protection,
and, thereby, recalcitrant witnesses actually undermine
the broader interests of the People of the United
States.\14\
Laws Passed by Congress
Congress has enacted statutes to support its power to
investigate and oversee the Executive Branch. These laws impose
criminal and other penalties on those who fail to comply with
inquiries from Congress or block others from doing so, and they
reflect the broader Constitutional requirement to cooperate
with Congressional investigations. For example:
Obstructing Congress: Obstructing a Congressional
investigation is a crime punishable by up to five years in
prison. An individual is guilty of obstruction if he or she
``corruptly, or by threats or force, or by any threatening
letter or communication influences, obstructs, or impedes or
endeavors to influence, obstruct, or impede'' the ``due and
proper exercise of the power of inquiry under which any inquiry
or investigation is being had by either House, or any committee
of either House.''\15\
Concealing Material Facts: Concealing information
from Congress is also punishable by up to five years in prison.
This prohibition applies to anyone who ``falsifies, conceals,
or covers up'' a ``material fact'' in connection with ``any
investigation or review, conducted pursuant to the authority of
any committee, subcommittee, commission or office of the
Congress, consistent with applicable rules of the House or
Senate.''\16\
Intimidating and Harassing Witnesses: Intimidating
witnesses in a Congressional investigation is a crime
punishable by up to twenty years in prison. This statute
applies to anyone who ``knowingly uses intimidation, threatens,
or corruptly persuades another person, or attempts to do so, or
engages in misleading conduct toward another person,'' with the
intent to ``influence, delay, or prevent the testimony of any
person in an official proceeding.''\17\ An individual who
``intentionally harasses another person and thereby hinders,
delays, prevents, or dissuades'' a person from ``attending or
testifying in an official proceeding'' is also guilty of a
crime punishable by fines and up to three years in prison.\18\
Retaliating Against Employees Who Provide
Information to Congress: Employees who speak to Congress have
the right not to have adverse personnel actions taken against
them. Retaliatory actions taken against Executive Branch
employees who cooperate with Congress may constitute violations
of this law.\19\ Any Executive Branch official who ``prohibits
or prevents'' or ``attempts or threatens to prohibit or
prevent'' any officer or employee of the federal government
from speaking with Congress could have his or her salary
withheld.\20\
Precedent of Previous Impeachments and Other Investigations
Unlike President Trump, past Presidents who were the
subject of impeachment inquiries--including Presidents Andrew
Johnson, Richard Nixon, and Bill Clinton--acknowledged
Congress' authority to investigate and, to varying degrees,
complied with information requests and subpoenas.
For example, President Johnson complied with the House's
requests for information. According to a report subsequently
adopted by the House Judiciary Committee, ``There is no
evidence that Johnson ever asserted any privilege to prevent
disclosure of presidential conversations to the Committee, or
failed to comply with any of the Committee's requests.''\21\
Similarly, President Clinton provided written responses to
81 interrogatories from the House Judiciary Committee during
the House's impeachment inquiry.\22\
Even President Nixon agreed to let his staff testify
voluntarily in the Senate Watergate investigation, stating:
``All members of the White House Staff will appear voluntarily
when requested by the committee. They will testify under oath,
and they will answer fully all proper questions.''\23\ As a
result, numerous senior White House officials testified,
including White House Counsel John Dean III, White House Chief
of Staff H.R. Haldeman, Deputy Assistant to the President
Alexander Butterfield, and Chief Advisor to the President for
Domestic Affairs John D. Ehrlichman.\24\ President Nixon also
produced numerous documents and records in response to the
House's subpoenas as part of its impeachment inquiry, including
more than 30 transcripts of White House recordings and notes
from meetings with the President.\25\
However, President Nixon's production of documents was
incomplete. For example, he did not produce tape recordings,
and transcripts he produced were heavily edited or inaccurate.
President Nixon claimed that his noncompliance with House
subpoenas was necessary to protect the confidentiality of
Presidential conversations, but the House Judiciary Committee
rejected these arguments and approved an article of impeachment
for obstruction of the House's impeachment inquiry.\26\
In a letter to President Nixon, Judiciary Committee
Chairman Peter Rodino explained that it would upend the
separation of powers to allow the President to dictate the
scope of an impeachment inquiry:
Under the Constitution it is not within the power of
the President to conduct an inquiry into his own
impeachment, to determine which evidence, and what
version or portion of that evidence, is relevant and
necessary to such an inquiry. These are matters which,
under the Constitution, the House has the sole power to
determine.\27\
Consistent with that long-settled understanding, other
Presidents have recognized that they must comply with
information requests issued in a House impeachment inquiry. In
1846, for example, President James Polk stated in a message to
the House:
It may be alleged that the power of impeachment
belongs to the House of Representatives, and that with
a view to the exercise of this power, that House has
the right to investigate the conduct of all public
officers under the government. This is cheerfully
admitted. In such a case, the safety of the Republic
would be the supreme law; and the power of the House in
the pursuit of this object would penetrate into the
most secret recesses of the executive departments. It
could command the attendance of any and every agent of
the government, and compel them to produce all papers,
public or private, official or unofficial, and to
testify on oath to all facts within their
knowledge.\28\
Past Presidents have also produced documents and permitted
senior officials to testify in connection with other
Congressional investigations, including inquiries into
Presidential actions.
For example, in the Iran-Contra inquiry, President Ronald
Reagan's former National Security Advisor, Oliver North, and
the former Assistant to the President for National Security
Affairs, John Poindexter, testified before Congress.\29\
President Reagan also produced ``relevant excerpts of his
personal diaries to Congress.''\30\
During the Clinton Administration, Congress obtained
testimony from top advisors to President Clinton, including
Chief of Staff Mack McLarty, Chief of Staff Erskine Bowles,
White House Counsel Bernard Nussbaum, and White House Counsel
Jack Quinn.\31\
Similarly, in the Benghazi investigation, led by Chairman
Trey Gowdy, President Barack Obama made many of his top aides
available for transcribed interviews, including National
Security Advisor Susan Rice and Deputy National Security
Advisor for Strategic Communications Benjamin Rhodes.\32\ The
Obama Administration also produced more than 75,000 pages of
documents in that investigation, including 1,450 pages of White
House emails containing communications of senior officials on
the National Security Council.\33\
2. The President's Categorical Refusal To Comply
President Trump categorically directed the White House,
federal departments and agencies, and federal officials not to
cooperate with the House's inquiry and not to comply with duly
authorized subpoenas for documents or testimony.
Overview
Donald Trump is the first and only President in American
history to openly and indiscriminately defy all aspects of the
Constitutional impeachment process, ordering all federal
agencies and officials categorically not to comply with
voluntary requests or compulsory demands for documents or
testimony.
On September 26, President Trump argued that Congress
should not be ``allowed'' to impeach him under the Constitution
and that there ``should be a way of stopping it--maybe legally,
through the courts.'' A common theme of his defiance has been
his claims that Congress is acting in an unprecedented way and
using unprecedented rules. However, the House has been
following the same investigative rules that Republicans
championed when they were in control.
On October 8, White House Counsel Pat Cipollone--acting on
behalf of President Trump--sent a letter to House Speaker Nancy
Pelosi and the three investigating Committees confirming that
President Trump directed his entire Administration not to
cooperate with the House's impeachment inquiry. Mr. Cipollone
wrote: ``President Trump cannot permit his Administration to
participate in this partisan inquiry under these
circumstances.''
Mr. Cipollone's letter elicited immediate criticism from
legal experts across the political spectrum. He advanced
remarkably politicized arguments and legal theories unsupported
by the Constitution, judicial precedent, and more than 200
years of history. If allowed to stand, the President's
defiance, as justified by Mr. Cipollone, would represent an
existential threat to the nation's Constitutional system of
checks and balances, separation of powers, and rule of law.
The House's Impeachment Inquiry of President Trump
In January, the House of Representatives voted to adopt its
rules for the 116th Congress. These rules authorized House
Committees to conduct investigations, hold hearings, issue
subpoenas for documents and testimony, and depose
witnesses.\34\ Significantly, these authorities are similar to
those adopted when Republicans controlled the House during
previous Congresses.\35\
In April, Special Counsel Robert S. Mueller III, who was
appointed by then-Deputy Attorney General Rod J. Rosenstein to
investigate Russian interference in the 2016 U.S. Presidential
election and potential obstruction of justice by President
Trump, issued a two-volume report.\36\ In connection with that
report, the Committee on the Judiciary began an inquiry into
``whether to approve articles of impeachment with respect to
the President.''\37\ The Judiciary Committee detailed its
authority and intent to conduct this investigation in a series
of reports, memoranda, and legal filings.\38\
On August 22, Rep. Jerrold Nadler, the Chairman of the
Committee on the Judiciary, sent a letter requesting that the
Permanent Select Committee on Intelligence, the Committee on
Oversight and Reform, the Committee on Foreign Affairs, and the
Committee on Financial Services provide ``information,
including documents and testimony, depositions, and/or
interview transcripts'' relevant to the ``ongoing impeachment
investigation relating to President Trump.''\39\
In September, the Intelligence Committee, the Oversight
Committee, and the Foreign Affairs Committee sent letters
requesting documents and interviews from the White House and
the Department of State regarding the actions of President
Trump, the President's personal agent, Rudy Giuliani, and
others to pressure Ukraine to launch investigations into former
Vice President Joe Biden and a debunked conspiracy theory
alleging Ukrainian interference in the 2016 election.\40\
On September 22, President Trump admitted to discussing
former Vice President Biden and his son with the President of
Ukraine during a telephone call on July 25.\41\
On September 24, Speaker Pelosi stated publicly that the
House Committees were ``moving forward'' to ``proceed with
their investigations under that umbrella of impeachment
inquiry.'' She explained that, for the past several months, the
House had been ``investigating in our Committees and litigating
in the courts, so the House can gather `all the relevant facts
and consider whether to exercise its full Article I powers,
including a constitutional power of the utmost gravity--
approval of articles of impeachment.'''\42\
On September 25, the White House made public a Memorandum
of Telephone Conversation of President Trump's call with
President Volodymyr Zelensky on July 25. As discussed in detail
in Section I, this call record documented how President Trump
directly and explicitly asked President Zelensky to launch
investigations of former Vice President Biden and the 2016
election.\43\
Following the Speaker's announcement and the release of the
call record, the Intelligence Committee, the Oversight
Committee, and the Foreign Affairs Committee continued their
investigation, requesting documents and information, issuing
subpoenas, and conducting interviews and depositions. The
Committees made clear that this information would be
``collected as part of the House's impeachment inquiry and
shared among the Committees, as well as with the Committee on
the Judiciary as appropriate.''\44\
On October 31, the House voted to approve House Resolution
660, directing the Committees ``to continue their ongoing
investigations as part of the existing House of Representatives
inquiry into whether sufficient grounds exist for the House of
Representatives to exercise its Constitutional power to impeach
Donald John Trump, President of the United States of America.''
The resolution set forth the process for holding public
hearings, releasing deposition transcripts, presenting a report
to the Judiciary Committee, holding proceedings within the
Judiciary Committee, and submitting to the House of
Representatives ``such resolutions, articles of impeachment, or
other recommendations as it deems proper.''\45\
President Trump's Unprecedented Order Not to Comply
President Trump's categorical and indiscriminate order and
efforts to block witness testimony and conceal documentary
evidence from the Committees investigating his conduct as part
of the House's impeachment inquiry stand in contrast to his
predecessors and challenge the basic tenets of the
Constitutional system of checks and balances.
Even before the House of Representatives launched its
investigation regarding Ukraine, President Trump made numerous
statements rejecting the fundamental authority of Congress to
investigate his actions as well as those of his Administration.
For example, on April 24, he stated, in response to
Congressional investigations: ``We're fighting all the
subpoenas.''\46\ Similarly, during a speech on July 23, he
stated: ``I have an Article II, where I have to the right to do
whatever I want as president.''\47\
When the three investigating Committees began reviewing the
President's actions as part of the House's impeachment inquiry,
President Trump repeatedly challenged the investigation's
legitimacy in word and deed. President Trump's rhetorical
attacks appeared intended not just to dispute public reports of
his misconduct, but to persuade the public that the House lacks
authority to investigate the President and the inquiry is
therefore invalid and fraudulent. For example, the President
described the impeachment inquiry as:
``a COUP''\48\
``illegal, invalid, and unconstitutional''\49\
``an unconstitutional power grab''\50\
``Ukraine Witch Hunt''\51\
``a continuation of the Greatest and most
Destructive Witch Hunt of all time''\52\
``a total Witch Hunt Scam by the Democrats''\53\
``bad for the country''\54\
``all a hoax''\55\
``the single greatest witch hunt in American
history''\56\
``Democrat Scam''\57\
``just another Democrat Hoax''\58\
``a fraud against the American people''\59\
``A Witch Hunt Scam''\60\
``a con being perpetrated on the United States
public and even the world''\61\
``ridiculous''\62\
``a continuation of the greatest Scam and Witch
Hunt in the history of our Country''\63\
``Ukraine Hoax''\64\
``No Due Process Scam''\65\
``the phony Impeachment Scam''\66\
``the phony Impeachment Hoax''\67\
On September 26, President Trump argued that Congress
should not be ``allowed'' to impeach him under the
Constitution: ``What these guys are doing--Democrats--are doing
to this country is a disgrace and it shouldn't be allowed.
There should be a way of stopping it--maybe legally, through
the courts.''\68\
A common theme of President Trump's defiance has been his
claims that Congress is acting in an unprecedented way and
using unprecedented rules.--However, the House has been
following the same investigative rules that Republicans
championed when they were in control and conducted aggressive
oversight of previous Administrations.\69\
White House Counsel's Letters Implementing the President's Order
On October 8, White House Counsel Pat Cipollone sent a
letter to Speaker Pelosi and the three Committees explaining
that President Trump had directed his entire Administration not
to cooperate with the House's impeachment inquiry. He wrote:
Consistent with the duties of the President of the
United States, and in particular his obligation to
preserve the rights of future occupants of his office,
President Trump cannot permit his Administration to
participate in this partisan inquiry under these
circumstances.\70\
On October 10, President Trump confirmed that Mr. Cipollone
was indeed conveying his orders, stating:
As our brilliant White House Counsel wrote to the
Democrats yesterday, he said their highly partisan and
unconstitutional effort threatens grave and lasting
damage to our democratic institutions, to our system of
free elections, and to the American people. That's what
it is. To the American people. It's so terrible.
Democrats are on a crusade to destroy our democracy.
That's what's happening. We will never let it happen.
We will defeat them.\71\
Mr. Cipollone's letter elicited immediate criticism from
legal experts from across the political spectrum.\72\
Mr. Cipollone wrote a second letter to the Committees on
October 18, declaring that the White House would refuse to
comply with the subpoena issued to it for documents.\73\
On November 1--after the House had already issued several
subpoenas to the White House and other Executive Branch
officials for testimony--the Trump Administration issued a new
``Letter Opinion'' from Assistant Attorney General Steven A.
Engel to Mr. Cipollone. The Office of Legal Counsel opinion
sought to extend the reach of the President's earlier direction
to defy Congressional subpoenas and to justify noncompliance by
officials who could not plausibly be considered among the
President's closest advisors.
Mr. Engel's opinion asserted that the House's impeachment
inquiry seeks information that is ``potentially protected by
executive privilege'' and claimed the Committees' deposition
subpoenas are ``invalid'' and ``not subject to civil or
criminal enforcement'' because the House's long-standing
deposition rules do not allow the participation of attorneys
from the White House or other government agencies.\74\ These
claims are without basis and unsupported by precedent.
The Letter Opinion cited statements from previous
Presidents and Attorneys General that directly undercut the
Administration's position. For example, President James K.
Polk, stated that in an impeachment inquiry the House had power
to ``penetrate into the most secret recesses of the Executive
Departments.''\75\ In addition, Attorney General Robert H.
Jackson, who later served on the Supreme Court, stated that
``pertinent information would be supplied in impeachment
proceedings, usually instituted at the suggestion of the
Department and for the good of the administration of
justice.''\76\
In his letters conveying the President's direction, Mr.
Cipollone advanced remarkably politicized arguments and legal
theories unsupported by the Constitution, judicial precedent,
and more than 200 years of history. These letters effectuated
the President's order and campaign to obstruct and thwart the
House's exercise of its sole power of impeachment under the
Constitution. They are rebutted as follows:
The Impeachment Inquiry is Constitutional:
According to Mr. Cipollone, ``the President did nothing
wrong,'' and ``there is no basis for an impeachment
inquiry.''\77\ President Trump has repeatedly described his
call with President Zelensky as ``perfect.''\78\ Speaking for
President Trump, Mr. Cipollone also asserted that the
impeachment inquiry is ``partisan and unconstitutional,'' ``a
naked political strategy that began the day he was inaugurated,
and perhaps even before,'' and that it ``plainly seeks to
reverse the election of 2016 and to influence the election of
2020.''\79\
However, as this report details in Section I, Congress
found abundant evidence of a scheme directed by the President
to solicit foreign election interference by pressing the newly-
elected President of Ukraine to announce publicly politically-
motivated investigations to benefit President Trump's own
reelection campaign. Fundamentally, the Constitutional validity
of an impeachment inquiry cannot depend on a President's view
that he did nothing wrong or on the political composition of
the House. Such an extreme reimagining of the Constitution
would render the Article I impeachment power meaningless and
provide the President with power the Constitution does not
grant him to thwart, manipulate, and stonewall an impeachment
inquiry conducted by the House, including by concealing
information of his own misconduct.\80\ Taken to its logical
conclusion, the President's position would eliminate the
impeachment power in every year during which a political party
other than the President's is in power. Under this approach,
the impeachments of President Clinton, President Nixon, and
President Andrew Johnson would not have been permitted.\81\
The purpose of an impeachment inquiry is for the House to
collect evidence to determine for itself whether the President
may have committed an impeachable offense warranting articles
of impeachment. Because the Constitution vests the House alone
with ``the sole Power of Impeachment,'' it is not for the
President to decide whether the House is exercising that power
properly or prudently. The President is not free to arrogate
the House's power to himself--or to order across-the-board
defiance of House subpoenas--based solely on his unilateral
characterization of legislative motives or because he opposes
the House's decision to investigate his actions.
The Impeachment Inquiry is Properly Authorized:
According to Mr. Cipollone, the ``House has not expressly
adopted any resolution authorizing an impeachment
investigation'' nor has it ``delegated such authority to any of
your Committees by rule.''\82\ However, nothing in either the
Constitution or the House Rules requires the full House to vote
to authorize an impeachment inquiry.\83\ The impeachment
inquiries into Presidents Andrew Johnson, Nixon, and Clinton
all began prior to the House's consideration and approval of a
resolution authorizing the investigations.\84\ The same is true
of many judicial impeachments;\85\ indeed, numerous judges have
been impeached without any prior vote of the full House
authorizing a formal inquiry.\86\ Even though Mr. Cipollone's
argument is inherently invalid, the House has taken two floor
votes that render it obsolete the first on January 9 to adopt
rules authorizing committees to conduct investigations, and the
second on October 31 to set forth procedures for open hearings
in the Intelligence Committee and for additional proceedings in
the Judiciary Committee.\87\ Even following passage of House
Resolution 660, whereby the House confirmed the preexisting and
ongoing impeachment inquiry, the President and the White House
Counsel, acting on the President's behalf, have persisted in
their obstructive conduct.
President Has No Valid Due Process Claims:
According to Mr. Cipollone, ``the Committees have not
established any procedures affording the President even the
most basic protections demanded by due process under the
Constitution and by fundamental fairness,'' and the Committees
``have denied the President the right to cross-examine
witnesses, to call witnesses, to receive transcripts of
testimony, to have access to evidence,'' and ``to have counsel
present.''\88\ Yet, there is no requirement that the House
provide these procedures during an impeachment inquiry. The
Constitution vests the House with ``the sole Power of
Impeachment,'' and provides no constraints on how the House
chooses to conduct its impeachment process.\89\ Nevertheless,
Mr. Cipollone's complaints are unfounded as the House has
implemented procedural protections for the President in its
exercise of its Constitutional power. House Resolution 660
authorizes procedures to ``allow for the participation of the
President and his counsel.''\90\ The Committee Report
accompanying House Resolution 660 explains that these
protections for the President are part of the Judiciary
Committee hearing process and are ``based on those provided
during the Nixon and Clinton inquiries.'' These procedures
include ``that the president and his counsel are invited to
attend all hearings; the ability for the president's counsel to
cross-examine witnesses and object to the admissibility of
testimony; and the ability of the president's counsel to make
presentations of evidence before the Judiciary Committee,
including the ability to call witnesses.''\91\
Fact-Finding Was Appropriately Transparent:
According to Mr. Cipollone, the Committees conducted their
proceedings ``in secret.''\92\ This argument fundamentally
misconstrues and misapprehends the fact-gathering process
required at this initial stage of the House's impeachment
inquiry. Unlike in the cases of Presidents Nixon and Clinton,
the House conducted a significant portion of the factual
investigation itself because no independent prosecutor was
appointed to investigate President Trump's conduct regarding
Ukraine. Attorney General William P. Barr refused to authorize
a criminal investigation into the serious allegations of
misconduct, and even this decision was limited to possible
violations of federal campaign finance laws.\93\ The
investigative Committees proceeded consistent with the House's
rules of procedure and in keeping with investigative best
practices, including the need to reduce the risk that witnesses
may try to coordinate or align testimony. As the House
explained in its report accompanying House Resolution 660:
The initial stages of an impeachment inquiry in the
House are akin to those preceding a prosecutorial
charging decision. Under this process, the House is
responsible for collecting the evidence and, rather
than weighing the question of returning an indictment,
the Members of the House have the obligation to decide
whether to approve articles of impeachment.\94\
The Committees have released transcripts of all interviews
and depositions conducted during the investigation. As these
transcripts make clear, all Members of all three Committees--
including 47 Republican Members of Congress--had the
opportunity to ask questions, and these transcripts are now
available to the President and his counsel. These same
procedures were supported by Acting White House Chief of Staff
Mick Mulvaney when he served as a Member of the Oversight
Committee and by Secretary of State Mike Pompeo when he served
as a Member of the Benghazi Select Committee. In fact, some of
the same Members and staff currently conducting depositions as
part of the present impeachment inquiry participated directly
in depositions during the Clinton, Bush, and Obama
Administrations.\95\ The Intelligence Committee also held
public hearings with 12 of these witnesses.
Agency Attorneys Can Be (And Should Be) Excluded
from Depositions: According to Mr. Cipollone, ``it is
unconstitutional to exclude agency counsel from participating
in congressional depositions.''\96\ Mr. Cipollone cites no case
law to support his position--because there is none. Instead, he
relies on a single opinion from the Trump Administration's
Office of Legal Counsel and ignores the ample legal authority
and historical precedent that clearly support the Committees'
actions. For example, the Constitution expressly delegates to
Congress the authority to ``determine the Rules of its
Proceedings,''\97\ which includes the power to determine the
procedures used for gathering information from witnesses
whether via interview, staff deposition, or in a public
hearing.\98\ The basis for the rule excluding agency counsel is
straightforward: it prevents agency officials who are directly
implicated in the abuses Congress is investigating from trying
to prevent their own employees from coming forward to tell the
truth to Congress. The rule protects the rights of witnesses by
allowing them to be accompanied in depositions by personal
counsel. Agency attorneys have been excluded from Congressional
depositions of Executive Branch officials for decades, under
both Republicans and Democrats, including Chairmen Dan Burton,
Henry Waxman, Darrell Issa, Jason Chaffetz, Trey Gowdy, Kevin
Brady, and Jeb Hensarling, among others.\99\
Congress Can Exercise Its Broad Oversight
Authority: According to Mr. Cipollone, ``you simply cannot
expect to rely on oversight authority to gather information for
an unauthorized impeachment inquiry that conflicts with all
historical precedent and rides roughshod over due process and
the separation of powers.''\100\ But, of course, the present
impeachment inquiry does neither. Moreover, the Supreme Court
has made clear that Congress' ``power of inquiry'' is ``as
penetrating and farreaching as the potential power to enact and
appropriate under the Constitution.''\101\ The subject matter
of the impeachment inquiry implicates the House's impeachment-
specific as well as legislative and oversight authorities and
interests. The activity under investigation, for instance,
relates to a broad array of issues in which Congress has
legislated and may legislate in the future, including
government ethics and transparency, election integrity,
appropriations, foreign affairs, abuse of power, bribery,
extortion, and obstruction of justice. In fact, Members of
Congress have already introduced legislation on issues related
to the impeachment inquiry.\102\ The House does not forfeit its
Constitutional authority to investigate and legislate when it
initiates an impeachment inquiry.\103\ Congress passed sweeping
legislative reforms following the scandal over the Watergate
break-in and President Nixon's resignation.\104\
``Confidentiality Interests'' Do Not Eliminate
Congress' Authority: According to Mr. Cipollone, the
Administration would also not comply with the Committees'
demands for documents and testimony because of unspecified
Executive Branch ``confidentiality interests.''\105\ There is
no basis in the law of executive privilege for declaring a
categorical refusal to respond to any House subpoena. In an
impeachment inquiry, the House's need for information and its
Constitutional authority are at their greatest, and the
Executive's interest in confidentiality must yield. Only the
President can assert executive privilege, yet he has not done
so in the House's impeachment inquiry. Prior to asserting
executive privilege, the Executive Branch is obligated to seek
to accommodate the legitimate informational needs of Congress,
which, as discussed below, it has not done.\106\ In any event,
much of the information sought by the Committees would not be
covered by executive privilege under any theory,\107\ and the
privilege--where validly asserted on a particularized basis and
not outweighed by the legitimate needs of the impeachment
inquiry--would protect any legitimate Executive Branch interest
in confidentiality.\108\
President's Top Aides Are Not ``Absolutely
Immune'': According to Mr. Cipollone, the President's top aides
are ``absolutely immune'' from being compelled to testify
before Congress.\109\ This extreme position has been explicitly
and repeatedly rejected by Congress--which has received
testimony from senior aides to many previous Presidents--and by
federal courts. In 2008, a federal court rejected an assertion
by President George W. Bush that White House Counsel Harriet
Miers was immune from being compelled to testify, noting that
the President had failed to identify even a single judicial
opinion to justify his claim.\110\ On November 25, 2019,
another federal judge rejected President Trump's claim of
absolute immunity for former White House Counsel Don McGahn,
concluding: ``Stated simply, the primary takeaway from the past
250 years of recorded American history is that Presidents are
not kings,'' and that ``Executive branch officials are not
absolutely immune from compulsory congressional process--no
matter how many times the Executive branch has asserted as much
over the years--even if the President expressly directs such
officials' non-compliance.''\111\ Mr. Cipollone's position,
adopted by President Trump, has thus been repudiated by
Congress and the courts, and is not salvaged by Executive
Branch legal opinions insisting upon a wholly fictional ground
for non-compliance. In ordering categorical defiance of House
subpoenas, President Trump has confirmed the unlimited breadth
of his position and his unprecedented view that no branch of
government--even the House--is empowered to investigate whether
he may have committed constitutional offenses.
In addition to advancing specious legal arguments,
President Trump has made no effort to accommodate the House's
interests in conducting the impeachment inquiry. For example,
the Committees first requested documents from the White House
on September 9, but the White House disregarded the
request.\112\ The Committees made a second request on September
24, but the White House again ignored the request.\113\
Finally, on October 4, the Committees transmitted a subpoena
for the documents.\114\ However, on October 18, the White House
Counsel sent a letter stating that ``the White House cannot
comply with the October 4 subpoena.''\115\
Since then, there has been no evidence of a willingness by
the President to produce any of the documents covered by the
subpoena to the White House. The State Department made passing
references to potentially engaging in an ``accommodations'''
process in response to its September 27 subpoena.\116\ However,
there has been no effort to do so, and departments and agencies
have not produced any documents in response to subpoenas issued
as part of the House impeachment inquiry. The President also
made no apparent effort to accommodate the House's need for
witness testimony and instead continued to flatly refuse to
allow Executive Branch officials to testify.
3. The President's Refusal To Produce Any and All Subpoenaed Documents
Pursuant to the President's orders, the White House,
federal departments and agencies, and key witnesses refused to
produce any documents in response to duly authorized subpoenas
issued pursuant to the House's impeachment inquiry.
Overview
Following President Trump's categorical order, not a single
document has been produced by the White House, the Office of
the Vice President, the Office of Management and Budget, the
Department of State, the Department of Defense, or the
Department of Energy in response to 71 specific, individualized
requests or demands for records in their possession, custody,
or control. The subpoenas to federal departments and agencies
remain in full force and effect. These agencies and offices
also blocked many current and former officials from producing
records directly to the Committees.
Certain witnesses defied the President's sweeping,
categorical, and baseless order and identified the substance of
key documents. Other witnesses identified numerous additional
documents that the President and various agencies are
withholding that are directly relevant to the impeachment
inquiry.
The President's personal attorney, Mr. Giuliani, although a
private citizen, also sought to rely on the President's order,
as communicated in Mr. Cipollone's letter on October 8, to
justify his decision to disobey a lawful subpoena for
documents.
The White House
On September 9, the Committees sent a letter to White House
Counsel Pat Cipollone seeking six categories of documents in
response to reports indicating that, ``for nearly two years,
the President and his personal attorney, Rudy Giuliani, appear
to have acted outside legitimate law enforcement and diplomatic
channels to coerce the Ukrainian government into pursuing two
politically-motivated investigations under the guise of anti-
corruption activity.''\117\ The Committees asked the White
House to voluntarily produce responsive documents by September
16.\118\ The White House did not provide any response by that
date.
On September 24, the Committees sent a follow-up letter
requesting that the White House produce the documents by
September 26.\119\ Again, the White House did not provide any
documents or respond by that date.
Having received no response from the White House, then-
Chairman Elijah E. Cummings sent a memorandum to Members of the
Committee on Oversight and Reform, which has jurisdiction over
the Executive Office of the President, explaining that he was
preparing to issue a subpoena in light of the White House's
non-compliance and non-responsiveness. He wrote:
Over the past several weeks, the Committees tried
several times to obtain voluntary compliance with our
requests for documents, but the White House has refused
to engage with--or even respond to--the
Committees.\120\
On October 4, the Committees sent a letter to Acting White
House Chief of Staff Mick Mulvaney transmitting a subpoena
issued by Chairman Cummings compelling the White House to
produce documents by October 18.\121\
As discussed above, on October 8, the White House Counsel
sent a letter to Speaker Pelosi and the Committees stating that
``President Trump cannot permit his Administration to
participate in this partisan inquiry under these
circumstances.''\122\ The White House Counsel also sent a
letter on October 18, confirming that ``the White House cannot
comply with the October 4 subpoena to Acting Chief of Staff
Mulvaney.''\123\
To date, the White House has not produced a single document
in response to the subpoena.\124\ Instead, the White House has
released to the public only two documents--call records from
the President's phone calls with President Zelensky on April 21
and July 25.\125\
Witnesses who testified before the Committees have
identified multiple additional documents that the President is
withholding that are directly relevant to the impeachment
inquiry, including but not limited to:
briefing materials for President Trump's call with
President Zelensky on July 25 prepared by Lt. Col. Alexander S.
Vindman, Director for Ukraine at the National Security
Council;\126\
notes relating to the July 25 call taken by Lt.
Col. Vindman and Tim Morrison, the former Senior Director for
Europe and Russia on the National Security Council;\127\
an August 15 ``Presidential decision memo''
prepared by Lt. Col. Vindman and approved by Mr. Morrison
conveying ``the consensus views from the entire deputies small
group'' that ``the security assistance be released'';\128\
National Security Council staff summaries of
conclusions from meetings at the principal, deputy, or sub-
deputy level relating to Ukraine, including military
assistance;\129\
call records between President Trump and
Ambassador Gordon Sondland, United States Ambassador to the
European Union;\130\
National Security Council Legal Advisor John
Eisenberg's notes and correspondence relating to discussions
with Lt. Col. Vindman regarding the July 10 meetings in which
Ambassador Sondland requested investigations in exchange for a
White House meeting;\131\
the memorandum of conversation from President
Trump's meeting in New York with President Zelensky on
September 25;\132\ and
as explained below, emails and other messages
between Ambassador Sondland and senior White House officials,
including Acting Chief of Staff Mick Mulvaney, Senior Advisor
to the Chief of Staff Rob Blair, and then-National Security
Advisor John Bolton, among other high-level Trump
Administration officials.\133\
The Committees also have good-faith reason to believe that
the White House is in possession of and continues to withhold
significantly more documents and records responsive to the
subpoena and of direct relevance to the impeachment inquiry.
The Committees have closely tracked public reports that the
White House is in possession of other correspondence and
records of direct relevance to the impeachment inquiry. On
November 24, for instance, a news report revealed that the
White House had conducted a confidential, internal records
review of the hold on military assistance in response to the
Committees' inquiry. The review reportedly ``turned up hundreds
of documents that reveal extensive efforts to generate an
after-the-fact justification for the decision and a debate over
whether the delay was legal.''\134\
Office of the Vice President
On October 4, the Committees sent a letter to Vice
President Mike Pence seeking 13 categories of documents in
response to reports that he and his staff were directly
involved in the matters under investigation. The Committees
wrote:
Recently, public reports have raised questions about
any role you may have played in conveying or
reinforcing the President's stark message to the
Ukrainian President. The reports include specific
references to a member of your staff who may have
participated directly in the July 25, 2019, call,
documents you may have obtained or reviewed, including
the record of the call, and your September 1, 2019,
meeting with the Ukrainian President in Warsaw, during
which you reportedly discussed the Administration's
hold on U.S. security assistance to Ukraine.\135\
The Committees asked the Vice President to produce
responsive documents by October 15.\136\ On that date, Matthew
E. Morgan, Counsel to the Vice President, responded to the
Committees by refusing to cooperate and reciting many of the
same baseless arguments as the White House Counsel. He wrote:
[T]he purported ``impeachment inquiry'' has been
designed and implemented in a manner that calls into
question your commitment to fundamental fairness and
due process rights. . . . Never before in history has
the Speaker of the House attempted to launch an
``impeachment inquiry'' against a President without a
majority of the House of Representatives voting to
authorize a constitutionally acceptable process.\137\
To date, the Vice President has not produced a single
document sought by the Committees and has not indicated any
intent to do so going forward.
Witnesses who testified before the Committees have
identified multiple additional documents that the Vice
President is withholding that are directly relevant to the
impeachment inquiry, including but not limited to:
notes taken by Jennifer Williams, Special Advisor
to the Vice President for Europe and Russia, during the call
between President Trump and President Zelensky on July 25;\138\
notes taken by Lt. Gen. Keith Kellogg, National
Security Advisor to the Vice President, during the call between
President Trump and President Zelensky on July 25;\139\
materials regarding the July 25 call that were
placed in the Vice President's briefing book that same
day;\140\
the memorandum of conversation from Vice President
Pence's call with President Zelensky on September 18;\141\ and
briefing materials prepared for Vice President
Pence's meeting with President Zelensky September 1 in Warsaw,
Poland.\142\
The Committees also have good-faith reason to believe that
the Office of the Vice President is in possession of and
continues to withhold significantly more documents and records
responsive to their request and of direct relevance to the
impeachment inquiry.
Office of Management and Budget
On October 7, the Committees sent a letter to Russell
Vought, Acting Director of the Office of Management and Budget
(OMB), conveying a subpoena issued by the Intelligence
Committee for nine categories of documents in response to
public reports that the President directed OMB to freeze
hundreds of millions of dollars in military assistance
appropriated by Congress to help Ukraine counter Russian
aggression. The Committees wrote:
According to multiple press reports, at some point in
July 2019, President Trump ordered Acting Chief of
Staff and Office of Management and Budget (OMB)
Director Mick Mulvaney to freeze the military aid to
Ukraine, and Mr. Mulvaney reportedly conveyed the
President's order ``through the budget office to the
Pentagon and the State Department, which were told only
that the administration was looking at whether the
spending was necessary.''\143\
The subpoena compelled Acting Director Vought to produce
responsive documents by October 15.\144\ On that day, OMB
Associate Director for Legislative Affairs Jason Yaworske
responded by refusing to produce any documents and reciting
many of the same baseless arguments as the White House Counsel:
[T]he President has advised that ``[g]iven that your
inquiry lacks any legitimate constitutional foundation,
any pretense of fairness, or even the most elementary
due process protections, the Executive Branch cannot be
expected to participate in it.'' . . . President Trump
cannot permit his Administration to participate in this
partisan inquiry under these circumstances.\145\
To date, Acting Director Vought has not produced a single
document sought by the Committees and has not indicated any
intent to do so going forward.
Witnesses who testified before the Committees have
identified multiple additional documents that Acting Director
Vought is withholding that are directly relevant to the
impeachment inquiry, including but not limited to:
a June 19 email from OMB Associate Director of
National Security Programs Michael Duffey to Department of
Defense (DOD) Deputy Comptroller Elaine McCusker regarding the
fact that ``the President had seen a media report and he had
questions about the assistance'' and expressing ``interest in
getting more information from the Department of Defense,''
specifically a ``description of the program'';\146\
a July 12 email from White House Assistant to the
President and Senior Advisor to the Chief of Staff Robert Blair
to Associate Director Duffey explaining that the ``President is
directing a hold on military support for Ukraine'' and not
mentioning any other country or security assistance
package;\147\ and
an August 7 memorandum drafted in preparation for
Acting Director Vought's attendance at a Principals Committee
meeting on Ukrainian security assistance, which included a
recommendation to lift the military assistance hold.\148\
The Committees also have good-faith reason to believe that
the Office of Management and Budget is in possession of and
continues to withhold significantly more documents and records
responsive to the subpoena and of direct relevance to the
impeachment inquiry.
Department of State
On September 9, the Committees sent a letter to Secretary
of State Mike Pompeo requesting six categories of documents in
response to reports that ``President Trump and his personal
attorney appear to have increased pressure on the Ukrainian
government and its justice system in service of President
Trump's reelection campaign'' and ``the State Department may be
abetting this scheme.''\149\ The Committees requested that
Secretary Pompeo produce responsive documents by September 16.
The Secretary did not provide any documents or response by that
date.
On September 23, the Committees sent a follow-up letter
asking Secretary Pompeo to ``inform the Committees by close of
business on Thursday, September 26, 2019, whether you intend to
fully comply with these requests or whether subpoenas will be
necessary.''\150\ The Secretary did not provide any documents
or respond by that date.
On September 27, the Committees sent a letter to Secretary
Pompeo conveying a subpoena for documents issued by Rep. Eliot
Engel, the Chairman of the Committee on Foreign Affairs,
compelling the production of documents by October 4.\151\
Since Secretary Pompeo had failed to respond, the
Committees also sent separate letters to six individual State
Department employees seeking documents in their possession and
requesting that they participate in depositions with the
Committees.\152\
On October 1, Secretary Pompeo responded to the Committees
for the first time. He objected to the Committees seeking
documents directly from State Department employees after he
failed to produce them, claiming inaccurately that such a
request was ``an act of intimidation and an invitation to
violate federal records laws.''\153\ He also claimed that the
Committees' inquiry was ``an attempt to intimidate, bully, and
treat improperly the distinguished professionals of the
Department of State.''\154\
To the contrary, Deputy Assistant Secretary George Kent,
one of the State Department professionals from whom the
Committees sought documents and testimony, testified that he
``had not felt bullied, threatened, and intimidated.''\155\
Rather, Mr. Kent said that the language in Secretary Pompeo's
letter, which had been drafted by a State Department attorney
without consulting Mr. Kent, ``was inaccurate.''\156\ Mr. Kent
explained that, when he raised this concern, the State
Department attorney ``spent the next 5 minutes glaring at me''
and then ``got very angry.'' According to Mr. Kent, the
official ``started pointing at me with a clenched jaw and
saying, What you did in there, if Congress knew what you were
doing, they could say that you were trying to sort of control,
or change the process of collecting documents.''\157\
With respect to his own compliance with the subpoena for
documents, Secretary Pompeo wrote that he ``intends to respond
to that subpoena by the noticed return date of October 4,
2019.''\158\
Later on October 1, the Committees sent a letter to Deputy
Secretary of State John J. Sullivan in light of new evidence
that Secretary Pompeo participated on President Trump's call
with President Zelensky on July 25. The Committees wrote:
We are writing to you because Secretary Pompeo now
appears to have an obvious conflict of interest. He
reportedly participated personally in the July 25, 2019
call, in which President Donald Trump pressed President
Volodymyr Zelensky of Ukraine to investigate the son of
former Vice President Joseph Biden immediately after
the Ukrainian President raised his desire for United
States military assistance to counter Russian
aggression.
If true, Secretary Pompeo is now a fact witness in
the impeachment inquiry. He should not be making any
decisions regarding witness testimony or document
production in order to protect himself or the
President. Any effort by the Secretary or the
Department to intimidate or prevent witnesses from
testifying or withhold documents from the Committees
shall constitute evidence of obstruction of the
impeachment inquiry.\159\
The following day, at a press conference in Italy,
Secretary Pompeo publicly acknowledged that he had been on the
July 25 call between Presidents Trump and Zelensky.\160\
On October 7, Committee staff met with State Department
officials who acknowledged that they had taken no steps to
collect documents in response to the September 9 letter, but
instead had waited for the September 27 subpoena before
beginning to search for responsive records. During that
conversation, the Committees made a good-faith attempt to
engage the Department in the constitutionally-mandated
accommodations process. The Committees requested, on a priority
basis, ``any and all documents that it received directly from
Ambassador Sondland,'' as well as ``documents--especially those
documents identified by the witnesses as responsive--related to
Ambassador Yovanovitch and DAS [Deputy Assistant Secretary]
Kent.'' The depositions of these witnesses--Ambassador
Sondland, Ambassador Yovanovitch, and Mr. Kent--were scheduled
for the days shortly after that October 7 meeting. The
Department's representatives stated that they would take the
request back to senior State Department officials, but never
provided any further response.\161\
To date, Secretary Pompeo has not produced a single
document sought by the Committees and has not indicated any
intent to do so going forward. In addition, the Department has
ordered its employees not to produce documents in their
personal possession. For example, on October 14, the Department
sent a letter to Mr. Kent's personal attorney warning that
``your client is not authorized to disclose to Congress any
records relating to official duties.''\162\
Moreover, the Department appears to have actively
discouraged its employees from identifying documents responsive
to the Committees' subpoena. Mr. Kent testified in his
deposition that he informed a Department attorney about
additional responsive records that the Department had not
collected, including an email from Assistant Secretary of State
for Consular Affairs David Risch, who ``had spoken to Rudy
Giuliani several times in January about trying to get a visa
for the corrupt former prosecutor general of Ukraine, Viktor
Shokin.''\163\ The Department attorney ``objected to [Mr. Kent]
raising of the additional information'' and ``made clear that
he did not think it was appropriate for [Mr. Kent] to make the
suggestion.''\164\ Mr. Kent responded that what he was ``trying
to do was make sure that the Department was being fully
responsive.''\165\
Certain witnesses defied the President's directive and
produced the substance of key documents. For example,
Ambassador Sondland attached ten exhibits to his written
hearing statement.\166\ These exhibits contained replicas of
emails and WhatsApp messages between Ambassador Sondland and
high-level Trump Administration officials, including Secretary
Pompeo, Secretary Perry, Acting Chief of Staff Mick Mulvaney,
and former National Security Advisor John Bolton.\167\ The
exhibits also contained a replica of a WhatsApp message between
Ambassador Sondland and Mr. Yermak.\168\
Earlier in the investigation, Ambassador Kurt Volker had
produced key text messages with Ambassador Taylor, Ambassador
Sondland, President Zelensky's senior aide, Andriy Yermak, Mr.
Giuliani, and others very soon after the Committees requested
them and prior to Mr. Cipollone's letter on October 8 conveying
the President's directive not to comply.\169\
The Department also prevented Ambassador Sondland--a
current State Department employee--from accessing records to
prepare for his testimony. As described above, federal law
imposes fines and up to five years in prison for anyone who
corruptly or by threats ``impedes or endeavors to influence,
obstruct, or impede'' the ``due and proper exercise of the
power of inquiry under which any inquiry or investigation is
being had by either House, or any committee of either
House.''\170\ Ambassador Sondland explained that the
Department's actions directly impeded his testimony:
I have not had access to all of my phone records,
State Department emails, and other State Department
documents. And I was told I could not work with my EU
Staff to pull together the relevant files. Having
access to the State Department materials would have
been very helpful to me in trying to reconstruct with
whom I spoke and met, when, and what was said. . . .
My lawyers and I have made multiple requests to the
State Department and the White House for these
materials. Yet, these materials were not provided to
me. They have also refused to share these materials
with this Committee. These documents are not classified
and, in fairness, should have been made available.\171\
He testified, ``I have been hampered to provide completely
accurate testimony without the benefit of those
documents.''\172\ Ambassador Sondland also stated:
Despite repeated requests to the White House and the
State Department, I have not been granted access to all
of the phone records, and I would like to review those
phone records, along with any notes and other documents
that may exist, to determine if I can provide more
complete testimony to assist Congress.\173\
On November 22, the Department produced 99 pages of emails,
letters, notes, timelines, and news articles to a non-partisan,
nonprofit ethics watchdog organization pursuant to a court
order in a lawsuit filed under the Freedom of Information Act
(FOIA).\174\ This handful of documents was limited to a narrow
window of time and specific people, but it clearly indicates
that the Department is withholding documents that are
responsive to the Committees' requests.
For example, the Department's FOIA production contains an
email from the Office Manager to the Secretary of State to
``S_All'' sent on March 26 which states that ``S is speaking
with Rudy Giuliani.''\175\ It also contains a March 27 email in
which Madeleine Westerhout, the Personal Secretary to President
Trump, facilitates another phone call between Rudy Giuliani and
Secretary Pompeo.\176\ These documents are directly responsive
to the September 27 subpoena for ``all documents and
communications, from January 20, 2017 to the present, relating
or referring to: Communications between any current or former
State Department officials or employees and Rudolph W.
Giuliani, including any text messages using personal or work-
related devices.''\177\
Witnesses who testified before the Committees have
identified multiple additional documents that Secretary Pompeo
is withholding that are directly relevant to the impeachment
inquiry, including but not limited to:
a cable on August 29 from Ambassador Bill Taylor,
at the recommendation of then-National Security Advisor John
Bolton, sent directly to Secretary Pompeo ``describing the
folly I saw in withholding military aid to Ukraine at a time
when hostilities were still active in the east and when Russia
was watching closely to gauge the level of American support for
the Ukrainian Government'' and telling Secretary Pompeo ``that
I could not and would not defend such a policy'';\178\
WhatsApp messages and emails that Ambassador
Sondland replicated and provided as exhibits to the
Intelligence Committee showing key communications between
Ambassador Sondland and high-level Trump Administration
officials, including Secretary Pompeo, Secretary Perry, Acting
Chief of Staff Mick Mulvaney, and Ambassador Bolton, as well as
President Zelensky's senior aide, Andriy Yermak;\179\
notes and memoranda to file from Mr. Kent,
Ambassador Taylor, and others, including Ambassador Taylor's
``little notebook'' in which he would ``take notes on
conversations, in particular when I'm not in the office,'' such
as meetings with Ukrainians or when out and receiving a phone
call,'' as well as his ``small, little spiral notebook'' of
calls that took place in the office;\180\
emails among Philip Reeker, Acting Assistant
Secretary of State, Bureau of European and Eurasian Affairs;
David Hale, Under Secretary of State for Political Affairs; Mr.
Kent; and others regarding the unsuccessful effort to issue a
public statement in support of Ambassador Yovanovitch,
including the ``large number of emails related to the press
guidance and the allegations about the Ambassador'' from the
``late March timeframe.''\181\
The Committees also have good-faith reason to believe that
the Department of State is in possession of and continues to
withhold significantly more documents and records responsive to
the subpoena and of direct relevance to the impeachment
inquiry.
Department of Defense
On October 7, the Committees sent a letter to Secretary of
Defense Mark Esper conveying a subpoena issued by the
Intelligence Committee for 14 categories of documents in
response to reports that the President directed a freeze of
hundreds of millions of dollars in military aid appropriated by
Congress to help Ukraine counter Russian aggression. The
Committees wrote:
Officials at the Departments of State and Defense
reportedly were ``puzzled and alarmed'' after learning
about the White House's directive. Defense Department
officials reportedly ``tried to make a case to the
White House that the Ukraine aid was effective and
should not be looked at in the same manner as other
aid,'' but ``those arguments were ignored.''\182\
The subpoena required Secretary Esper to produce responsive
documents by October 15. On October 13, Secretary Esper stated
in a public interview that the Department would comply with the
Intelligence Committee's subpoena:
Q: Very quickly, are you going to comply with the
subpoena that the House provided you and provide
documents to them regarding to the halt to military aid
to Ukraine?
A: Yeah we will do everything we can to cooperate
with the Congress. Just in the last week or two, my
general counsel sent out a note as we typically do in
these situations to ensure documents are retained.
Q: Is that a yes?
A: That's a yes.
Q: You will comply with the subpoena?
A: We will do everything we can to comply.\183\
On October 15, however, Assistant Secretary of Defense for
Legislative Affairs Robert R. Hood responded by refusing to
produce any documents and reciting many of the same legally
unsupportable arguments as the White House Counsel:
In light of these concerns, and in view of the
President's position as expressed in the White House
Counsel's October 8 letter, and without waiving any
other objections to the subpoena that the Department
may have, the Department is unable to comply with your
request for documents at this time.\184\
To date, Secretary Esper has not produced a single document
sought by the Committees and has not indicated any intent to do
so going forward, notwithstanding his public promise to ``do
everything we can to comply.''\185\
Witnesses who testified before the Committees have
identified multiple additional documents that Secretary Esper
is withholding that are directly relevant to the impeachment
inquiry, including but not limited to:
DOD staff readouts from National Security Council
meetings at the principal, deputy, or sub-deputy level relating
to Ukraine, including military assistance;\186\
an email from Secretary Esper's Chief of Staff, to
Laura K. Cooper, Deputy Assistant Secretary of Defense for
Russia, Ukraine, and Eurasia, in late July ``asking for follow-
up on a meeting with the President,'' including information on
whether ``U.S. industry [is] providing any of this equipment,''
``international contributions'' to Ukraine, and ``who gave this
funding'';\187\
fact sheets and other information provided by Ms.
Cooper in response to the email request;\188\
an email sent to Ms. Cooper's staff on July 25 at
2:31 p.m.--the same day as President's Trump's call with
Ukrainian President Zelensky--stating that the Ukrainian
Embassy was inquiring about the status of military aid,
suggesting that Ukrainian officials were concerned about the
status of the military aid much earlier than ever previously
acknowledged by the Executive Branch;\189\
an email sent to Ms. Cooper's staff on July 25 at
4:25 p.m. stating that the Ukrainian Embassy and The Hill
newspaper had become aware of the situation with the military
assistance funding;\190\ and
an email received by Ms. Cooper's staff on July 3
at 4:23 p.m. from the Department of State explaining that the
Department of State ``had heard the CN [Congressional
Notification] is currently being blocked by OMB.''\191\
The Committees also have good-faith reason to believe that
the Department of Defense is in possession of and continues to
withhold significantly more documents and records responsive to
the subpoena and of direct relevance to the impeachment
inquiry.
Department of Energy
On October 10, the Committees sent a letter to Secretary of
Energy Rick Perry conveying a subpoena issued by the
Intelligence Committee for ten categories of documents in
response to reports about his involvement with matters under
investigation. The Committees wrote:
Recently, public reports have raised questions about
any role you may have played in conveying or
reinforcing the President's stark message to the
Ukrainian President. These reports have also raised
significant questions about your efforts to press
Ukrainian officials to change the management structure
at a Ukrainian state-owned energy company to benefit
individuals involved with Rudy Giuliani's push to get
Ukrainian officials to interfere in our 2020
election.\192\
The subpoena required Secretary Perry to produce responsive
documents by October 18. On that day, Melissa F. Burnison, the
Assistant Secretary of Energy for Congressional and
Intergovernmental Affairs, responded by refusing to produce any
documents and reciting many of the same flawed arguments as the
White House Counsel:
Pursuant to these concerns, the Department restates
the President's position: ``Given that your inquiry
lacks any legitimate constitutional foundation, any
pretense of fairness, or even the most elementary due
process protections, the Executive Branch cannot be
expected to participate in it.''\193\
To date, Secretary Perry has not produced a single document
sought by the Committees and has not indicated any intent to do
so going forward.
Witnesses who testified before the Committees have
identified multiple documents that Secretary Perry is
withholding that are directly relevant to the impeachment
inquiry, including but not limited to:
a document passed directly from Secretary Perry to
President Zelensky in a May 2019 meeting with a list of
``people he trusts'' that President Zelensky could seek advice
from on issues of relating to ``key Ukrainian energy-sector
contacts,'' according to David Holmes, the Political Counselor
at the U.S. Embassy in Kyiv;\194\
a June 5 email from Philip Reeker, Acting
Assistant Secretary of State, Bureau of European and Eurasian
Affairs, to Secretary Perry and others, regarding ``Zelenskyy's
visit to Brussels, and the critical--perhaps historic--role of
the dinner and engagement Gordon [Ambassador Sondland]
coordinated'';\195\ and
a July 19 email from Secretary Perry in which he
states ``Mick [Acting Chief of Staff Mick Mulvaney] just
confirmed the call being set up for tomorrow by NSC'' in
reference to a call between President Trump and President
Zelensky.\196\
The Committees also have good-faith reason to believe that
the Department of Energy is in possession of and continues to
withhold significantly more documents and records responsive to
the subpoena and of direct relevance to the impeachment
inquiry.
Rudy Giuliani and His Associates
On September 30, the Committees sent a letter conveying a
subpoena issued by the Intelligence Committee to the
President's personal attorney, Rudy Giuliani, compelling the
production of 23 categories of documents relating to his
actions in Ukraine.\197\
On October 15, Mr. Giuliani's counsel responded to the
Committees by stating that Mr. Giuliani ``will not participate
because this appears to be an unconstitutional, baseless, and
illegitimate `impeachment inquiry.'''\198\ He also stated:
``Mr. Giuliani adopts all the positions set forth in Mr.
Cipollone's October 8, 2019 letter on behalf of President
Donald J. Trump.''\199\
To date, Mr. Giuliani has not produced a single document
sought by the Committees and has not indicated any intent to do
so going forward.
On September 30, the Committees sent letters to two of Mr.
Giuliani's business associates--Igor Fruman and Levi Parnas--
requesting testimony and eleven categories of documents from
each.\200\ The Committees sought documents from Mr. Fruman and
Mr. Parnas related to their efforts to influence U.S.
elections.
According to press reports, Mr. Parnas and Mr. Fruman
reportedly were ``assisting with Giuliani's push to get
Ukrainian officials to investigate former vice president Joe
Biden and his son as well as Giuliani's claim that Democrats
conspired with Ukrainians in the 2016 campaign.'' Press reports
also indicate that Mr. Parnas and Mr. Fruman were involved with
efforts to press Ukrainian officials to change the management
structure at a Ukrainian state-owned energy company, Naftogaz,
to benefit individuals involved with Mr. Giuliani's push to get
Ukrainian officials to interfere in the 2020 election.\201\
On October 3, counsel to Mr. Fruman and Mr. Parnas
responded to Committee staff, explaining his clients'
relationship with Mr. Giuliani and President Trump:
Be advised that Messrs. Parnas and Fruman assisted
Mr. Giuliani in connection with his representation of
President Trump. Mr. Parnas and Mr. Fruman have also
been represented by Mr. Giuliani in connection with
their personal and business affairs. They also assisted
Joseph DiGenova and Victoria Toensing in their law
practice.\202\
With respect to preparing Mr. Fruman's and Mr. Parnas'
response, their counsel wrote: ``The amount of time required is
difficult to determine. [sic] but we are happy to keep you
advised of our progress and engage in a rolling production of
non-privileged documents.''
On October 8, their counsel wrote again to Committee staff,
stating:
This is an update. We continue to meet with Mr.
Parnas and Mr. Fruman to gather the facts and documents
related to the many subjects and persons detailed in
your September 30 letter and to evaluate all of that
information in light of the privileges we raised in our
last letter.\203\
On October 9, their counsel wrote to Committee staff,
stating, ``Please be advised that Messrs. Parnas and Fruman
agree with and adopt the position of White House Counsel
pertaining to Democrat inquiry.''\204\
On October 10, the Committees transmitted subpoenas
compelling Mr. Fruman and Mr. Parnas to produce eleven
categories of documents.\205\ That same day, their counsel
responded:
As I did in my recent letter of October 8, 2019,
please be advised we were in the formative stages of
recovering and reviewing records on October 9 when
Messrs. Parnas and Fruman were arrested by the FBI and
locked up in Virginia pursuant to Four Count Indictment
by a Federal Grand Jury in the Southern District of New
York unsealed on October 10, 2019.
Further, their records and other belongings,
including materials sought by your subpoenas, were
seized pursuant warrants [sic] by the FBI in several
locations on the 9th and 10th of October.\206\
To date, Mr. Fruman has not produced a single document in
response to his subpoena and has not indicated any intent to do
so going forward.
With respect to Mr. Parnas, he obtained new counsel during
the course of the impeachment inquiry. His new attorney has
asserted that Mr. Parnas will cooperate with the House's
inquiry, stating: ``We will honor and not avoid the committee's
requests to the extent they are legally proper, while
scrupulously protecting Mr. Parnas' privileges including that
of the Fifth Amendment.''\207\
In contrast to Mr. Giuliani and Mr. Fruman, Mr. Parnas has
begun rolling production of certain records in his possession,
custody, or control in response to the subpoena, which the
Committees are evaluating. The Committees expect Mr. Parnas'
full compliance with the subpoena.
4. The President's Refusal To Allow Top Aides To Testify
At President Trump's direction, twelve current or former
Administration officials refused to testify as part of the
House's impeachment inquiry, ten of whom did so in defiance of
duly authorized subpoenas. The President's orders were
coordinated and executed by the White House Counsel and others,
and they prevented testimony from officials from the White
House, National Security Council, Office of Management and
Budget, Department of State, and Department of Energy.
Overview
No other President in history has issued an order
categorically directing the entire Executive Branch not to
testify before Congress, including in the context of an
impeachment inquiry. President Trump issued just such an order.
As reflected in White House Counsel Pat Cipollone's October
8 letter, President Trump directed all government witnesses to
violate their legal obligations by defying House subpoenas--
regardless of their office or position.\208\ President Trump
even extended his order to former officials no longer employed
by the federal government. This Administration-wide effort to
prevent all witnesses from providing testimony was coordinated
and comprehensive.
These witnesses were warned that their refusal to testify
``shall constitute evidence that may be used against you in a
contempt proceeding'' and ``may be used as an adverse inference
against you and the President.''
Despite the President's unprecedented commands, the House
gathered a wealth of evidence of his conduct from courageous
individuals who were willing to follow the law, comply with
duly authorized subpoenas, and tell the truth. Nevertheless,
the President's efforts to obstruct witness testimony deprived
Congress and the public of additional evidence.
In following President Trump's orders to defy duly
authorized Congressional subpoenas, several Administration
officials who, to date, remain under subpoena may have placed
themselves at risk of being held in criminal contempt of
Congress.\209\ These witnesses were warned explicitly that
their refusal to obey lawful orders to testify ``shall
constitute evidence that may be used against you in a contempt
proceeding'' and could also result in adverse inferences being
drawn against both them and the President.\210\
Mick Mulvaney, Acting White House Chief of Staff
On November 5, the Committees sent a letter to Acting White
House Chief of Staff Mick Mulvaney seeking his appearance at a
deposition on November 8.\211\ The Committees received no
response to this letter.
On November 7, the Intelligence Committee issued a subpoena
compelling Mr. Mulvaney's appearance at a deposition on
November 8.\212\ On November 8, Mr. Mulvaney's personal
attorney sent an email to Committee staff stating that ``Mr.
Mulvaney will not be attending the deposition today, and he is
considering the full range of his legal options.''\213\
Mr. Mulvaney's personal attorney provided a letter that was
sent on November 8 from Mr. Cipollone, stating that ``the
President directs Mr. Mulvaney not to appear at the Committee's
scheduled deposition on November 8, 2019.''\214\ Mr. Mulvaney's
personal attorney also provided a letter sent on November 7
from Steven A. Engel, Assistant Attorney General at the Office
of Legal Counsel of the Department of Justice, to Mr.
Cipollone, stating, ``Mr. Mulvaney is absolutely immune from
compelled congressional testimony in his capacity as a senior
advisor to the President.''\215\
Mr. Mulvaney did not appear at the deposition on November
8, in defiance of the Committees' subpoena. The Committees met,
and Chairman Schiff acknowledged Mr. Mulvaney's absence,
stating:
Neither Congress nor the courts recognize a blanket
absolute immunity as a basis to defy a congressional
subpoena. Mr. Mulvaney and the White House, therefore,
have no legitimate legal basis to evade a duly
authorized subpoena. The President's direction to Mr.
Mulvaney to defy our subpoena can, therefore, only be
construed as an effort to delay testimony and obstruct
the inquiry, consistent with the White House Counsel's
letter dated October 8, 2019.\216\
Chairman Schiff also explained Mr. Mulvaney's knowledge of
and role in facilitating the President's conduct:
Mr. Mulvaney's role in facilitating the White House's
obstruction of the impeachment inquiry does not occur
in a vacuum. Over the past several weeks, we have
gathered extensive evidence of the President's abuse of
power related to pressuring Ukraine to pursue
investigations that would benefit the President
personally and politically and jeopardize national
security in doing so. Some of that evidence has
revealed that Mr. Mulvaney was a percipient witness to
misconduct by the President and may have had a role in
certain actions under investigation. The evidence shows
that Mr. Mulvaney may have coordinated with U.S.
Ambassador to the European Union Gordon Sondland, Rudy
Giuliani, and others to carry out President Trump's
scheme to condition a White House meeting with
President Zelensky on the Ukrainians' pursuit of
investigations of the Bidens, Burisma holdings, and
purported Ukrainian interference in the 2016 U.S.
Presidential election. In addition, evidence suggests
that Mr. Mulvaney may have played a central role in
President Trump's attempt to coerce Ukraine into
launching his desired political investigations by
withholding nearly $400 million in vital security
assistance from Ukraine that had been appropriated by
Congress. At a White House press briefing on October
17, 2019, Mr. Mulvaney admitted publicly that President
Trump ordered the hold on Ukraine security assistance
to further the President's own personal political
interests rather than the national interest. . . .
Based on the record evidence gathered to date, we can
only infer that Mr. Mulvaney's refusal to testify is
intended to prevent the Committees from learning
additional evidence of President Trump's misconduct and
that Mr. Mulvaney's testimony would corroborate and
confirm other witnesses' accounts of such misconduct.
If the White House had evidence to contest those facts,
they would allow Mr. Mulvaney to be deposed. Instead,
the President and the White House are hiding and trying
to conceal the truth from the American people. Given
the extensive evidence the Committees have already
uncovered, the only result of this stonewalling is to
buttress the case for obstruction of this inquiry.\217\
To date, Mr. Mulvaney has not changed his position about
compliance with the subpoena.\218\
Robert B. Blair, Assistant to the President and Senior Advisor to the
Chief of Staff
On October 24, the Committees sent a letter to Robert B.
Blair, an Assistant to the President and the Senior Advisor to
Acting Chief of Staff Mulvaney, seeking Mr. Blair's appearance
at a deposition on November 1.\219\ On November 2, Mr. Blair's
personal attorney sent a letter to the Committees stating:
Mr. Blair has been directed by the White House not to
appear and testify at the Committees' proposed
deposition, based on the Department of Justice's advice
that the Committees may not validly require an
executive branch witness to appear at such a deposition
without the assistance of agency counsel. In light of
the clear direction he has been given by the Executive
Branch, Mr. Blair must respectfully decline to testify,
as you propose, on Monday, November 4, 2019.\220\
On November 3, the Committees sent a letter to Mr. Blair's
personal attorney transmitting a subpoena compelling Mr. Blair
to appear at a deposition on November 4.\221\
On November 4, Mr. Blair did not appear for the scheduled
deposition, in defiance of the Committees' subpoena. The
Committees met and Chairman Schiff acknowledged Mr. Blair's
absence, stating:
Although the committees requested a copy of the
correspondence from the White House and Department of
Justice, Mr. Blair's Counsel did not provide it to the
Committees. This new and shifting rationale from the
White House, like the others it has used to attempt to
block witnesses from appearing to provide testimony
about the President's misconduct, has no basis in law
or the Constitution and is a serious affront to decades
of precedent in which Republicans and Democrats have
used exactly the same procedures to depose executive
branch officials without agency counsel present,
including some of the most senior aides to multiple
previous Presidents.\222\
Unlike President Trump's directive to Acting Chief of Staff
Mulvaney, neither Mr. Blair nor the White House have asserted
that Mr. Blair is ``absolutely immune'' from providing
testimony to Congress. To date, Mr. Blair has not changed his
position or contacted the Committees about compliance with the
subpoena.
Ambassador John Bolton, Former National Security Advisor
On October 30, the Committees sent a letter to the personal
attorney of Ambassador John Bolton, the former National
Security Advisor to President Trump, seeking his appearance at
a deposition on November 7.\223\ Later that day, Ambassador
Bolton's personal attorney sent an email to Committee staff
stating, ``As you no doubt have anticipated, Ambassador Bolton
is not willing to appear voluntarily.''\224\
On November 7, Ambassador Bolton did not appear for the
scheduled deposition. On November 8, Ambassador Bolton's
personal attorney sent a letter to Douglas Letter, the General
Counsel of the House of Representatives, suggesting that, if
Ambassador Bolton were subpoenaed, he would file a lawsuit and
would comply with the subpoena only if ordered to do so by the
court. He referenced a lawsuit filed by another former
official, Dr. Charles Kupperman, represented by the same
attorney, and stated:
As I emphasized in my previous responses to letters
from the House Chairs, Dr. Kupperman stands ready, as
does Ambassador Bolton, to testify if the Judiciary
resolves the conflict in favor of the Legislative
Branch's position respecting such testimony.\225\
To date, Ambassador Bolton has not changed his
position or come forward to testify.\226\
John A. Eisenberg, Deputy Counsel to the President for National
Security Affairs and Legal Advisor, National Security Council
On October 30, the Committees sent a letter to John A.
Eisenberg, the Deputy Counsel to the President for National
Security Affairs and the Legal Advisor at the National Security
Council, seeking his appearance at a deposition on November
4.\227\ The Committees received no response to this
letter.\228\
On November 1, the Committees sent a letter to Mr.
Eisenberg transmitting a subpoena compelling his appearance at
a deposition on November 4.\229\ On November 4, Mr. Eisenberg's
personal attorney sent a letter to the Committees, stating:
Even if Mr. Eisenberg had been afforded a reasonable
amount of time to prepare, the President has instructed
Mr. Eisenberg not to appear at the deposition. Enclosed
with this letter is the President's instruction as
relayed by Pat A. Cipollone, Counsel to the President,
in a letter dated November 3, 2019. We also enclose a
letter, also dated November 3, 2019, from Steven A.
Engel, Assistant Attorney General for the Office of
Legal Counsel at the Department of Justice, to Mr.
Cipollone advising that Mr. Eisenberg is ``absolutely
immune from compelled congressional testimony in his
capacity as a senior advisor to the President.'' Under
these circumstances, Mr. Eisenberg has no other option
that is consistent with his legal and ethical
obligations except to follow the direction of his
client and employer, the President of the United
States. Accordingly, Mr. Eisenberg will not be
appearing for a deposition at this time.\230\
Enclosed was a letter sent on November 3 from Mr. Cipollone
to Mr. Eisenberg's personal attorney stating that ``the
President directs Mr. Eisenberg not to appear at the
Committee's deposition on Monday, November 4, 2019.''\231\ Also
enclosed was a letter sent on November 3 from the Office of
Legal Counsel of the Department of Justice to Mr. Cipollone
stating:
You have asked whether the Committee may compel Mr.
Eisenberg to testify. We conclude that he is absolutely
immune from compelled congressional testimony in his
capacity as a senior advisor to the President.\232\
Mr. Eisenberg did not appear for the scheduled deposition,
in defiance of the Committees' subpoena. The Committees met and
Chairman Schiff acknowledged Mr. Eisenberg's absence, stating:
Despite his legal obligations to comply, Mr.
Eisenberg is not present here today and has therefore
defied a duly authorized congressional subpoena. This
morning, in an email received at 9:00 a.m., when the
deposition was supposed to commence, Mr. Eisenberg's
personal attorney sent a letter to the committee
stating that President Trump had, quote, ``instructed
Mr. Eisenberg not to appear at the deposition,''
unquote. The attorney attached correspondence from
White House counsel Pat Cipollone and a letter from the
Office of Legal Counsel at Department of Justice. The
OLC letter informs the White House that Mr. Eisenberg
is purportedly, quote, ``absolutely immune from
compelled congressional testimony in his capacity as a
senior advisor to the President,'' unquote. . . .
Moreover, neither Congress nor the courts recognize a
blanket, quote, ``absolute immunity,'' unquote, as a
basis to defy a congressional subpoena. Mr. Eisenberg
and the White House, therefore, have no basis for
evading a lawful subpoena. As such, the President's
direction to Mr. Eisenberg to defy a lawful compulsory
process can only be construed as an effort to delay
testimony and obstruct the inquiry, consistent with the
White House counsel's letter dated October 8, 2019. As
Mr. Eisenberg was informed, the Committees may consider
his noncompliance with the subpoena as evidence in a
future contempt proceeding. His failure or refusal to
appear, moreover, shall constitute evidence of
obstruction of the House's impeachment inquiry and may
be used as an adverse inference against the President.
The subpoena remains in full force. The committees
reserve all of their rights, including the right to
raise this matter at a future Intelligence Committee
proceeding, at the discretion of the chair of the
committee.
Mr. Eisenberg's nonappearance today adds to a growing
body of evidence of the White House seeking to obstruct
the White House's impeachment inquiry. To the extent
the White House believes that an issue could be raised
at the deposition that may implicate a valid claim of
privilege, the White House may seek to assert that
privilege with the Committee in advance of the
deposition. To date, as has been the case in every
other deposition as part of the inquiry, the White
House has not done so. Mr. Eisenberg's failure to
appear today also flies in the face of historical
precedent. Even absent impeachment proceedings,
congressional committees have deposed senior White
House officials, including White House counsels and
senior White House lawyers.\233\
Michael Ellis, Senior Associate Counsel to the President and Deputy
Legal Advisor, National Security Council
On October 30, the Committees sent a letter to Michael
Ellis, a Senior Associate Counsel to the President and the
Deputy Legal Advisor at the National Security Council, seeking
his appearance at a deposition on November 4.\234\ On November
2, Mr. Ellis' personal attorney sent an email to Committee
staff stating:
[W]e are in receipt of an opinion from the Office of
Legal Counsel providing guidance on the validity of a
subpoena under the current terms and conditions and
based on that guidance we are not in a position to
appear for a deposition at this time.\235\
This email followed the November 1 Office of Legal Counsel
opinion, discussed above, which sought to extend the reach of
the President's earlier direction to defy Congressional
subpoenas and provided justification for noncompliance by
officials who could not plausibly be considered among the
President's closest advisors.
On November 3, Mr. Ellis' personal attorney sent another
email to Committee staff stating:
[O]ur guidance is that the failure to permit agency
counsel to attend a deposition of Mr. Ellis would not
allow sufficient protection of relevant privileges and
therefore render any subpoena constitutionally invalid.
As an Executive branch employee Mr. Ellis is required
to follow this guidance.\236\
On November 3, the Committees sent a letter to Mr. Ellis'
personal attorney transmitting a subpoena compelling his
appearance at a deposition on November 4, stating:
Mr. Ellis' failure or refusal to comply with the
subpoena, including at the direction or behest of the
President or the White House, shall constitute further
evidence of obstruction of the House's impeachment
inquiry and may be used as an adverse inference against
Mr. Ellis and the President.\237\
On November 4, Mr. Ellis did not appear for the scheduled
deposition, in defiance of the Committees' subpoena. The
Committees met and Chairman Schiff acknowledged Mr. Ellis'
absence, stating:
Other than the White House's objections to
longstanding congressional practice, the committees are
aware of no other valid constitutional privilege
asserted by the White House to direct Mr. Ellis to defy
this subpoena.\238\
To date, Mr. Ellis has not changed his position or
contacted the Committees about compliance with the subpoena.
Preston Wells Griffith, Senior Director for International Energy and
Environment, National Security Council
On October 24, the Committees sent a letter to Preston
Wells Griffith, the Senior Director for International Energy
and Environment at the National Security Council, seeking his
appearance at a deposition on November 5.\239\ On November 4,
Mr. Griffith's personal attorney sent a letter to the
Committees stating:
As discussed with Committee counsel, Mr. Griffith
respectfully declines to appear for a deposition before
the joint Committees conducting the impeachment
inquiry, based upon the direction of White House
Counsel that he not appear due to agency counsel not
being permitted.\240\
Later that day, the Committees sent a letter to Mr.
Griffith's personal attorney transmitting a subpoena compelling
his appearance at a deposition on November 5, stating:
Mr. Griffith's failure or refusal to comply with the
subpoena, including at the direction or behest of the
President or the White House, shall constitute further
evidence of obstruction of the House's impeachment
inquiry and may be used as an adverse inference against
Mr. Griffith and the President.\241\
On November 5, Mr. Griffith did not appear for the
scheduled deposition, in defiance of the Committees' subpoena.
The Committees met and Chairman Schiff acknowledged Mr.
Griffith's absence, stating:
Although the committees requested a copy of any
written direction from the White House, Mr. Griffith's
counsel has not provided any such documentation to the
committees. The White House's newly invented rationale
for obstructing the impeachment inquiry appears based
on a legal opinion that was issued by the Department of
Justice Office of Legal Counsel just last Friday,
November 1. It is noteworthy and telling that OLC
issued this opinion after multiple current and former
White House, State Department, and Department of
Defense officials testified before the committees, both
voluntarily and pursuant to subpoena, all without
agency counsel present. The White House's invocation of
this self-serving OLC opinion should therefore be seen
for what it is: a desperate attempt to staunch the flow
of incriminating testimony from the executive branch
officials about the President's abuse of power.\242\
To date, Mr. Griffith has not changed his position or
contacted the Committees about compliance with the subpoena.
Dr. Charles M. Kupperman, Former Deputy Assistant to the President for
National Security Affairs, National Security Council
On October 16, the Committees sent a letter to Dr. Charles
M. Kupperman, a former Deputy Assistant to the President for
National Security Affairs, seeking his appearance at a
deposition on October 23.\243\
On October 25, the Intelligence Committee issued a subpoena
compelling Dr. Kupperman to appear at a deposition on October
28.\244\
Later that day, Dr. Kupperman's personal attorney sent an
email to Committee staff attaching a 17-page complaint in
federal court seeking a declaratory judgment as to whether he
should comply with the subpoena.\245\ His counsel wrote:
Pending the courts' determination as to which Branch
should prevail, Dr. Kupperman will not effectively
adjudicate the conflict by appearing and testifying
before the Committees.\246\
Enclosed as part of the complaint was a letter sent on
October 25 from Mr. Cipollone to Dr. Kupperman's personal
attorney stating that ``the President directs Mr. Kupperman not
to appear at the Committee's scheduled hearing on Monday,
October 28, 2019.''\247\ Also enclosed was a letter sent on
October 25 from the Office of Legal Counsel of the Department
of Justice, to Mr. Cipollone stating that Dr. Kupperman ``is
absolutely immune from compelled congressional testimony in his
capacity as a former senior advisor to the President.''\248\
On October 26, the Committees sent a letter to Dr.
Kupperman's personal attorneys, stating:
In light of the direction from the White House, which
lacks any valid legal basis, the Committees shall
consider your client's defiance of a congressional
subpoena as additional evidence of the President's
obstruction of the House's impeachment inquiry.\249\
Later that day, Dr. Kupperman's personal attorney sent a
letter to Committee staff, stating: ``The proper course for Dr.
Kupperman, we respectfully submit, is to lay the conflicting
positions before the Court and abide by the Court's judgment as
to which is correct.''\250\ On October 27, Dr. Kupperman's
personal attorney sent a letter to Committee staff, writing:
``If your clients'' position on the merits of this issue is
correct, it will prevail in court, and Dr. Kupperman, I assure
you again, will comply with the Court's judgment.''\251\
On November 5, the Committees sent a letter to Dr.
Kupperman's personal attorneys withdrawing the subpoena,
stating:
The question whether the Executive Branch's
``absolute immunity'' theory has any basis in law is
currently before the court in Committee on the
Judiciary v. McGahn, No. 19-cv-2379 (D.D.C. filed Aug.
7, 2019). In addition to not suffering from the
jurisdictional flaws in Dr. Kupperman's suit, McGahn is
procedurally much further along.\252\
On November 8, Dr. Kupperman's personal attorney sent a
letter to Douglas Letter, the General Counsel of the House of
Representatives, stating that Dr. Kupperman stands ready to
testify ``if the Judiciary resolves the conflict in favor of
the Legislative Branch's position respecting such
testimony.''\253\
On November 25, the district court in McGahn held that
``with respect to senior-level presidential aides, absolute
immunity from compelled congressional process simply does not
exist.'' The court explained there is ``no basis in the law''
for a claim of absolute immunity regardless of the position of
the aides in question or whether they ``are privy to national
security matters, or work solely on domestic issues.''\254\ To
date and notwithstanding the ruling in McGahn as it relates to
Presidential aides who ``are privy to national security
matters,'' Dr. Kupperman continues to refuse to testify, and
his case remains pending in federal court.\255\
Russell T. Vought, Acting Director, Office of Management and Budget
On October 11, the Committees sent a letter to Russell T.
Vought, the Acting Director of OMB, seeking his appearance at a
deposition on October 25.\256\ On October 21, an attorney at
OMB sent an email to Committee staff stating:
Per the White House Counsel's October 8, 2019 letter,
the President has directed that ``[c]onsistent with the
duties of the President of the United States, and in
particular his obligation to preserve the rights of
future occupants of his office, [he] cannot permit his
Administration to participate in this partisan inquiry
under these circumstances.'' Therefore, Acting Director
Vought will not be participating in Friday's
deposition.\257\
That same day, Mr. Vought publicly stated:
I saw some Fake News over the weekend to correct. As
the WH letter made clear two weeks ago, OMB officials--
myself and Mike Duffey--will not be complying with
deposition requests this week. #shamprocess.\258\
On October 25, the Committees sent a letter transmitting a
subpoena compelling Mr. Vought's appearance at a deposition on
November 6.\259\
On November 4, Jason A. Yaworske, the Associate Director
for Legislative Affairs at OMB, sent a letter to Chairman
Schiff stating:
The Office of Management and Budget (OMB) reasserts
its position that, as directed by the White House
Counsel's October 8, 2019, letter, OMB will not
participate in this partisan and unfair impeachment
inquiry. . . . Therefore, Mr. Vought, Mr. Duffey, and
Mr. McCormack will not appear at their respective
depositions without being permitted to bring agency
counsel.\260\
On November 5, Mr. Vought did not appear for the scheduled
deposition, in defiance of the Committees' subpoena. The
Committees met and Chairman Schiff acknowledged Mr. Vought's
absence, stating:
On Monday of this week, OMB reasserted its position
that, quote, ``as directed by the White House Counsel's
October 8, 2019, letter, OMB will not participate in
this partisan and unfair impeachment inquiry,''
unquote. OMB argues that the impeachment inquiry lacks
basic due process protections and relies on OLC opinion
that the committee cannot lawfully bar agency counsel
from depositions. This new and shifting rationale from
the White House, like the others it has used to attempt
to block witnesses from appearing to provide testimony
about the President's misconduct, has no basis in law
or the Constitution and is a serious affront to decades
of precedent in which Republicans and Democrats have
used exactly the same procedures to depose executive
branch officials without agency counsel present,
including some of the most senior aides to multiple
previous Presidents.\261\
To date, Mr. Vought has not changed his position or
contacted the Committees about compliance with the subpoena.
Michael Duffey, Associate Director for National Security Programs,
Office of Management and Budget
On October 11, the Committees sent a letter to Michael
Duffey, the Associate Director for National Security Programs
at OMB, seeking his appearance at a deposition on October
23.\262\
On October 21, an attorney at OMB sent an email to
Committee staff stating:
Per the White House Counsel's October 8, 2019 letter,
the President has directed that ``[c]onsistent with the
duties of the President of the United States, and in
particular his obligation to preserve the rights of
future occupants of his office, [he] cannot permit his
Administration to participate in this partisan inquiry
under these circumstances.'' Therefore, Mike Duffey
will not be participating in Wednesday's
deposition.\263\
On October 25, the Committees sent a letter transmitting a
subpoena compelling Mr. Duffey to appear at a deposition on
November 5, stating:
Your failure or refusal to appear at the deposition,
including at the direction or behest of the President
or the White House, shall constitute evidence of
obstruction of the House's impeachment inquiry and may
be used as an adverse inference against the
President.\264\
On November 4, Jason A. Yaworske, the Associate Director
for Legislative Affairs at OMB, sent a letter to Chairman
Schiff stating that, ``as directed by the White House Counsel's
October 8, 2019, letter,'' Mr. Duffey will not appear at his
deposition.\265\
On November 5, Mr. Duffey did not appear for the scheduled
deposition, in defiance of the Committees' subpoena. The
Committees met and Chairman Schiff acknowledged Mr. Duffey's
absence, stating:
This effort by the President to attempt to block Mr.
Duffey from appearing can only be interpreted as a
further effort by the President and the White House to
obstruct the impeachment inquiry and Congress's lawful
and constitutional functions.\266\
To date, Mr. Duffey has not changed his position or
contacted the Committees about compliance with the subpoena.
Brian McCormack, Associate Director for Natural Resources, Energy, and
Science, Office of Management and Budget
On October 24, the Committees sent a letter to Brian
McCormack, the Associate Director for Natural Resources,
Energy, and Science at OMB, seeking his appearance at a
deposition on November 4.\267\
On November 1, the Committees sent a letter transmitting a
subpoena compelling Mr. McCormack's appearance at a deposition
on November 4.\268\
On November 4, Jason A. Yaworske, the Associate Director
for Legislative Affairs at OMB, sent a letter to Chairman
Schiff stating that, ``as directed by the White House Counsel's
October 8, 2019, letter,'' Mr. McCormack will not appear at his
deposition.\269\
On November 4, Mr. McCormack did not appear for the
scheduled deposition, in defiance of the Committees' subpoena.
The Committees met and Chairman Schiff acknowledged Mr.
McCormack's absence, stating:
At approximately 11:30 a.m. today, committee staff
received via email a letter from the Associate Director
for Legislative Affairs at OMB. The letter states that,
quote, ``As directed by the White House counsel's
October 8, 2019, letter,'' unquote, OMB will not
participate in the House's impeachment inquiry. The
letter further states that, based on the advice of the
Office of Legal Counsel that, quote, ``the committee
cannot lawfully bar agency counsel from these
depositions,'' unquote, Mr. McCormack will not appear
at his deposition today without agency counsel present.
As Mr. McCormack was informed, the committees may
consider his noncompliance with a subpoena as evidence
in a future contempt proceeding. His failure or refusal
to appear, moreover, shall constitute evidence of
obstruction of the House's impeachment inquiry and may
be used as an adverse inference against the
President.\270\
To date, Mr. McCormack has not changed his position or
contacted the Committees about compliance with the subpoena.
T. Ulrich Brechbuhl, Counselor, Department of State
On September 13, the Committees sent a letter to Secretary
of State Mike Pompeo seeking transcribed interviews with
Counselor T. Ulrich Brechbuhl and other officials.\271\ The
Committees received no direct, substantive response to this
letter.
On September 27, the Committees sent a letter informing
Secretary Pompeo that Mr. Brechbuhl's deposition was being
scheduled on October 8, stating:
On September 13, the Committees wrote to request that
you make State Department employees available for
transcribed interviews. We asked you to provide, by
September 20, dates by which the employees would be
made available for transcribed interviews. You failed
to comply with the Committees' request.\272\
That same day, the Committees sent a letter directly to Mr.
Brechbuhl seeking his appearance at a deposition on October
8.\273\
On October 1, Secretary Pompeo sent a letter to the
Committees stating, ``Based on the profound procedural and
legal deficiencies noted above, the Committee's requested dates
for depositions are not feasible.''\274\
Later that day, the Committees sent a letter to Deputy
Secretary of State John J. Sullivan stating that the State
Department ``must immediately halt all efforts to interfere
with the testimony of State Department witnesses before
Congress.''\275\
On October 2, Mr. Brechbuhl's personal attorney sent an
email to Committee staff stating:
My law firm is in the process of being formally
retained to assist Mr. Brechbuhl in connection with
this matter. It will take us some time to complete
those logistics, review the request and associated
request for documents, and to meet with our client to
insure he is appropriately prepared for any deposition.
It will not be possible to accomplish those tasks
before October 8, 2019. Thus, as I am sure that you can
understand, Mr. Brechbuhl will not be able to appear on
that date as he requires a sufficient opportunity to
consult with counsel. Moreover, given the concerns
expressed in Secretary Pompeo's letter of October 1,
2019, to Chairman Engel, any participation in a
deposition would need to be coordinated with our
stakeholders.\276\
On October 8, Committee staff sent an email to Mr.
Brechbuhl's personal attorney stating: ``The Committees have
agreed to reschedule Mr. Brechbuhl's deposition to Thursday,
October 17. Please confirm that Mr. Brechbuhl intends to appear
voluntarily.''\277\ On October 9, Committee staff sent an email
to Mr. Brechbuhl's personal attorney asking him to ``confirm by
COB today whether Mr. Brechbuhl intends to appear
voluntarily.''\278\ Later that day, Mr. Brechbuhl's personal
attorney sent an email to Committee staff stating, ``I am still
seeking clarification from the State Department regarding this
deposition.''\279\
On October 25, the Committees sent a letter to Mr.
Brechbuhl's personal attorney transmitting a subpoena
compelling Mr. Brechbuhl's appearance at a deposition on
November 6.\280\
On November 5, Mr. Brechbuhl's personal attorney sent a
letter to the Committees stating:
Mr. Brechbuhl respects the important Constitutional
powers vested in the United States Congress. And,
indeed, he would welcome the opportunity to address
through testimony an existing inaccuracy in the public
record the false claim that Mr. Brechbuhl in any way
personally participated in the telephone call between
President Trump and President Zelensky that occurred on
July 25, 2019. However, Mr. Brechbuhl has received a
letter of instruction from the State Department,
directing that he not appear. The State Department
letter of instruction asserts significant Executive
Branch interests as the basis for direction not to
appear and also asserts that the subpoena Mr. Brechbuhl
received is invalid. The letter is supported by
analysis from the United States Department of Justice.
We are also aware that litigation has recently been
initiated in the United States District Court for the
District of Columbia that may bear on resolving the
significant issues now arising between the Committees
and the President. Given these circumstances, Mr.
Brechbuhl is not able to appear on November 6,
2019.\281\
On November 6, Mr. Brechbuhl did not appear for the
scheduled deposition, in defiance of the Committees' subpoena.
The Committees met and Chairman Schiff acknowledged Mr.
Brechbuhl's absence, stating:
The committees requested a copy of the State
Department's letter and the Department of Justice
analysis, but Mr. Brechbuhl's attorney has not
responded. While the letter from Mr. Brechbuhl's
attorney provides only vague references to unidentified
executive branch interests and a DOJ analysis as the
basis for the State Department's blocking of Mr.
Brechbuhl's testimony, the Department's latest
obstruction of this inquiry appears to be predicated on
the opinion issued by the Department of Justice Office
of Legal Counsel just last Friday, November 1, well
after the subpoena was issued to Mr. Brechbuhl. It is
noteworthy and telling that the OLC issued this opinion
only after multiple State Department officials
testified in this inquiry, both voluntarily and
pursuant to subpoena, all without agency counsel
present. Indeed, this morning, the third-highest-
ranking official at the State Department, Under
Secretary David Hale, appeared and has begun testifying
in accordance with his legal obligations pursuant to a
subpoena.\282\
The Committees sent Mr. Brechbuhl's personal attorney two
separate inquiries asking him to provide a copy of the ``letter
of instruction'' that Mr. Brechbuhl claimed to have received
from the State Department directing him to defy a congressional
subpoena.\283\ Mr. Brechbuhl's personal attorney furnished the
Committees with a copy of the letter on December 2. The State
Department's letter to Mr. Brechbuhl is dated November 4,
2019.\284\
To date, Mr. Brechbuhl has not changed his position or
contacted the Committees about compliance with the subpoena.
Secretary Rick Perry, Department of Energy
On November 1, the Committees sent a letter to Secretary of
Energy Rick Perry seeking his appearance at a deposition on
November 6, stating:
Your failure or refusal to appear at the deposition,
including at the direction or behest of the President
or the White House, shall constitute evidence of
obstruction of the House's impeachment inquiry and may
be used as an adverse inference against the
President.\285\
On November 5, an attorney at the Department of Energy sent
a letter to the Committees stating:
Please be advised that the Secretary will not appear
on Wednesday, November 6, 2019, at 2:00 pm for a
deposition to be conducted jointly by the Permanent
Select Committee on Intelligence, the Committee on
Foreign Affairs, and the Committee on Oversight and
Reform.\286\
To date, Secretary Perry has not changed his position or
come forward to testify.
5. The President's Unsuccessful Attempts To Block Key Witnesses
Despite President Trump's explicit orders that no Executive
Branch employees should cooperate with the House's impeachment
inquiry and efforts by federal agencies to limit the testimony
of those who did, multiple key officials complied with duly
authorized subpoenas and provided critical testimony at
depositions and public hearings. These officials adhered to the
rule of law and obeyed lawful subpoenas.
Overview
Despite President Trump's orders that no Executive Branch
employees should cooperate with the House's impeachment
inquiry, multiple key officials complied with duly authorized
subpoenas and provided critical testimony at depositions and
public hearings. These officials not only served their nation
honorably, but they fulfilled their oath to support and defend
the Constitution of the United States.
In addition to the President's broad orders seeking to
prohibit all Executive Branch employees from testifying, many
of these witnesses were personally directed by senior political
appointees not to cooperate with the House's impeachment
inquiry. These directives frequently cited or enclosed copies
of Mr. Cipollone's October 8 letter conveying the President's
order not to comply.
For example, the State Department, relying on President
Trump's order, attempted to block Ambassador Marie Yovanovitch
from testifying, but she fulfilled her legal obligations by
appearing at a deposition on October 11 and a hearing on
November 15. More than a dozen current and former officials
followed her courageous example by testifying at depositions
and public hearings over the course of the last two months. The
testimony from these witnesses produced overwhelming and clear
evidence of President Trump's misconduct, which is described in
detail in Section I of this report.
Ambassador Marie Yovanovitch, Former U.S. Ambassador to Ukraine,
Department of State
On September 13, the Committees sent a letter to Secretary
of State Mike Pompeo seeking a transcribed interview with
Ambassador Marie Yovanovitch and other State Department
officials.\287\ The Committees received no direct, substantive
response to this letter.
On September 27, the Committees sent a letter informing
Secretary Pompeo that Ambassador Yovanovitch's deposition was
being scheduled on October 2, stating:
On September 13, the Committees wrote to request that
you make State Department employees available for
transcribed interviews. We asked you to provide, by
September 20, dates by which the employees would be
made available for transcribed interviews. You failed
to comply with the Committees' request.\288\
Also on September 27, the Committees sent a letter directly
to Ambassador Yovanovitch seeking her appearance at a
deposition on October 2.\289\
On October 1, Secretary Pompeo sent a letter to the
Committees stating:
Therefore, the five officials subject to your letter
may not attend any interview or deposition without
counsel from the Executive Branch present to ensure
that the Executive Branch's constitutional authority to
control the disclosure of confidential information,
including deliberative matters and diplomatic
communications, is not impaired.\290\
After further discussions with Ambassador Yovanovitch's
counsel, her deposition was rescheduled for October 11. On
October 10, Brian Bulatao, the Under Secretary of State for
Management, sent a letter to Ambassador Yovanovitch's personal
attorney directing Ambassador Yovanovitch not to appear for her
deposition and enclosing Mr. Cipollone's October 8 letter
stating that President Trump and his Administration would not
participate in the House's impeachment inquiry. Mr. Bulatao's
letter stated:
Accordingly, in accordance with applicable law, I
write on behalf of the Department of State, pursuant to
the President's instruction reflected in Mr.
Cipollone's letter, to instruct your client (as a
current employee of the Department of State),
consistent with Mr. Cipollone's letter, not to appear
before the Committees under the present
circumstances.\291\
That same day, October 10, when asked whether he intended
to block Ambassador Yovanovitch from testifying the next day,
President Trump stated: ``You know, I don't think people should
be allowed. You have to run a country, I don't think you should
be allowed to do that.''\292\
On the morning of Ambassador Yovanovitch's deposition on
October 11, the Committees sent a letter to her personal
attorney transmitting a subpoena compelling her appearance,
stating:
In light of recent attempts by the Administration to
direct your client not to appear voluntarily for the
deposition, the enclosed subpoena now compels your
client's mandatory appearance at today's deposition on
October 11, 2019.\293\
Later on October 11, Ambassador Yovanovitch's personal
attorney sent a letter to Mr. Bulatao, stating:
In my capacity as counsel for Ambassador Marie
Yovanovitch, I have received your letter of October 10,
2019, directing the Ambassador not to appear
voluntarily for her scheduled deposition testimony on
October 11, 2019 before the Committee on Foreign
Affairs, the Permanent Select Committee on
Intelligence, and the Committee on Oversight and Reform
in connection with the House of Representatives's
impeachment inquiry. Just this morning, the Ambassador
received a subpoena issued by the House Permanent
Select Committee on Intelligence, requiring her to
appear for the deposition as scheduled. Although the
Ambassador has faithfully and consistently honored her
professional duties as a State Department employee--
including at all times following her abrupt termination
as U.S. Ambassador to Ukraine--she is unable to obey
your most recent directive. As the recipient of a duly
issued congressional subpoena, Ambassador Yovanovitch
is, in my judgment, legally obligated to attend the
depositions as scheduled.\294\
Ambassador Yovanovitch participated in the deposition on
October 11, in compliance with the Committees' subpoena.\295\
During her deposition, Ambassador Yovanovitch's personal
attorney confirmed that ``she received a direction by the Under
Secretary to decline to appear voluntarily.''\296\
On November 15, the Committees transmitted a subpoena to
Ambassador Yovanovitch compelling her to testify at a public
hearing of the Intelligence Committee that same day.\297\
Ambassador Yovanovitch complied with the Committees' subpoena
and testified at the public hearing. During the hearing,
Chairman Schiff acknowledged Ambassador Yovanovitch's
compliance, stating:
Ambassador, I want to thank you for your decades of
service. I want to thank you, as Mr. Maloney said, for
being the first one through the gap. What you did in
coming forward and answering a lawful subpoena was to
give courage to others that also witnessed wrongdoing,
that they, too, could show the same courage that you
have, that they could stand up, speak out, answer
questions, they could endure whatever threats, insults
may come their way. And so in your long and
distinguished career you have done another great public
service in answering the call of our subpoena and
testifying before us today.\298\
Ambassador Gordon Sondland, U.S. Ambassador to the European Union,
Department of State
On September 27, 2019, the Committees sent a letter
informing Secretary Pompeo that Ambassador Gordon Sondland's
deposition was being scheduled on October 10.\299\ That same
day, the Committees sent a letter directly to Ambassador
Sondland seeking his appearance at the deposition.\300\ On
October 1, Secretary Pompeo sent a letter to the Committees
stating that Ambassador Sondland ``may not attend'' the
deposition.\301\
After further discussions with Ambassador Sondland's
personal attorney, his deposition was rescheduled for October
8. On October 7, Mr. Bulatao sent a letter to Ambassador
Sondland's personal attorney, stating:
Based on consultations with the White House, the
State Department hereby instructs your client,
Ambassador Gordon Sondland, not to appear tomorrow for
his voluntary deposition based on the Executive Branch
confidentiality interests remaining to be addressed,
including, in particular, the Committee's refusal to
permit agency counsel to appear.\302\
On October 8, Ambassador Sondland's personal attorney sent
an email to the Committees stating:
I am incredibly disappointed to report that,
overnight, the State Department advised that it will
direct Ambassador Sondland not to appear before the
Committee this morning. While we have not yet gotten
written confirmation of that direction, we wanted to
advise you of this development at the earliest
opportunity. As the sitting US Ambassador to the EU and
employee of the State Department, Ambassador Sondland
is required to follow this direction. I hope that
whatever concerns the Department has can be resolved
promptly and that Ambassador Sondland's testimony can
be scheduled at the earliest opportunity. I am very
sorry for the inexcusably late notice, but we are
sharing this with you as soon as it was confirmed to
us. Ambassador Sondland is personally disappointed that
he will not be able to answer the Committee's questions
this morning.\303\
On October 8, the Committees sent a letter to Ambassador
Sondland transmitting a subpoena compelling his appearance at a
deposition on October 16, stating:
The Committees have not received any communication
directly from the White House or the State Department
about this matter. In light of Secretary Pompeo's
direct intervention to block your appearance before our
Committees, we are left with no choice but to compel
your appearance at a deposition pursuant to the
enclosed subpoena.\304\
On October 14, the Committees sent a letter to Ambassador
Sondland stating:
We hereby write to memorialize our agreement with
your counsel, Mr. Robert Luskin, Esq., to adjourn the
date and time of your document production and
deposition to October 17, 2019, at 9:30 a.m. at the
Capitol, HVC-304.\305\
Ambassador Sondland participated in the deposition on
October 17, in compliance with the Committees' subpoena.\306\
During the deposition, Ambassador Sondland's personal attorney
stated:
But we also wish to emphasize that it's his belief,
and ours, that the Committee should have access to all
relevant documents, and he regrets that they have not
been provided in advance of his testimony. Having those
documents would lead to a more fulsome and accurate
inquiry into the matters at hand. Indeed, Ambassador
Sondland has not had access to all of the State
Department records that would help him refresh his
recollection in anticipation of this testimony.\307\
During the deposition, Ambassador Sondland stated:
I was truly disappointed that the State Department
prevented me at the last minute from testifying earlier
on October 8, 2019. But your issuance of a subpoena has
supported my appearance here today, and I'm pleased to
provide the following testimony.\308\
On November 4, Ambassador Sondland's personal attorney
transmitted to the Committees a sworn declaration from
Ambassador Sondland, which supplemented his deposition
testimony and noted that despite ``repeated requests to the
White House and the State Department,'' he still had not been
granted access to records he sought to review to determine if
he could ``provide more complete testimony to assist
Congress.''\309\
On November 20, the Committees transmitted a subpoena to
Ambassador Sondland compelling him to testify at a public
hearing of the Intelligence Committee that same day.\310\
Ambassador Sondland complied with the Committees' subpoena and
testified at the public hearing. During the hearing, Ambassador
Sondland described the direction he received from the White
House:
Q: Ambassador Sondland, in your deposition, you
lamented, quote: I was truly disappointed that the
State Department prevented me at the last minute from
testifying earlier on October 8, 2019, but your
issuance of a subpoena has supported my appearance here
today, and I am pleased to provide the following
testimony. So it is clear that the White House, the
State Department did not want you to testify at that
deposition. Is that correct?
A: That is correct.
Q: And since then, you have on numerous occasions
during your opening statement today indicated that you
have not been able to access documents in the State
Department. Is that correct?
A: Correct.
Q: So you have been hampered in your ability to
provide testimony to this committee. Is that correct?
A: I have been hampered to provide completely
accurate testimony without the benefit of those
documents.\311\
George P. Kent, Deputy Assistant Secretary of State, Bureau of European
and Eurasian Affairs, Department of State
On September 13, 2019, the Committees sent a letter to
Secretary of State Pompeo seeking a transcribed interview with
Deputy Assistant Secretary of State George Kent and other State
Department officials.\312\ The Committees received no direct,
substantive response to this letter.
On September 27, the Committees sent a letter informing
Secretary Pompeo that Mr. Kent's deposition was being scheduled
on October 7.\313\ That same day, the Committees sent a letter
directly to Mr. Kent seeking his appearance at the deposition
on that date.\314\ Later that day, Mr. Kent sent an email to
Committee staff acknowledging receipt of the Committees'
request and copying an official from the Office of Legislative
Affairs at the Department of State.\315\ On October 1,
Secretary Pompeo sent a letter to the Committees stating that
Mr. Kent ``may not attend'' the deposition.\316\
After consulting with Mr. Kent's personal attorney, the
Committees rescheduled his deposition for October 15.\317\ On
October 10, Under Secretary Bulatao sent a letter to Mr. Kent's
personal attorney enclosing the White House Counsel's letter of
October 8, and stating:
I write on behalf of the Department of State,
pursuant to the President's instruction reflected in
Mr. Cipollone's letter, to instruct your client (as a
current employee of the Department of State),
consistent with Mr. Cipollone's letter, not to appear
before the Committees under the present
circumstances.\318\
On October 15, the Committees sent a letter to Mr. Kent's
personal attorney transmitting a subpoena compelling him to
appear at a deposition on that date.\319\
Mr. Kent participated in the deposition on October 15, in
compliance with the Committees' subpoena.\320\ During the
deposition, he stated:
As you all know, I am appearing here in response to
your congressional subpoena. If I did not appear I
would have been exposed to being held in contempt. At
the same time, I have been instructed by my employer,
the U.S. Department of State, not to appear. I do not
know the Department of State's views on disregarding
that order.\321\
On November 13, the Committees transmitted a subpoena to
Mr. Kent compelling him to testify at a public hearing before
the Intelligence Committee on that day.\322\ Mr. Kent complied
with the Committees' subpoena and testified at the public
hearing. During the hearing, Mr. Kent described the direction
he received from the White House, stating that he ``received,
initially, a letter directing me not to appear. And once the
committees issued a subpoena, I was under legal obligation to
appear, and I am here today under subpoena.''\323\
Ambassador William B. Taylor, Jr., Charge d'Affaires for U.S. Embassy
in Kyiv, Department of State
On October 4, 2019, the Committees sent a letter to Deputy
Secretary of State John Sullivan seeking a deposition with
Ambassador William B. Taylor, Jr. on October 15.\324\ That same
day, the Committees sent a letter directly to Ambassador Taylor
seeking his appearance at the deposition.\325\
On October 14, after consulting with Ambassador Taylor's
counsel, the Committees sent a letter to Ambassador Taylor
stating: ``We hereby write to adjourn the date and time of your
deposition to Tuesday, October 22, 2019, at 9:30 a.m. at the
Capitol, HVC-304.''\326\
On October 22, the Committees transmitted a subpoena to
Ambassador Taylor's personal attorneys compelling Ambassador
Taylor to appear at a deposition on that date, stating:
In light of recent attempts by the Administration to
direct witnesses not to appear voluntarily for
depositions, the enclosed subpoena compels your
client's mandatory appearance at today's
deposition.\327\
Ambassador Taylor participated in the deposition on October
22, in compliance with the Committees' subpoena. During the
deposition, Ambassador Taylor's personal attorney stated, in
regard to communications with the Department of State:
They sent us the directive that said he should not
appear under I think the quote is under the present
circumstances. We told the majority that we could not
appear; he'd been instructed not to. We saw the
pattern.\328\
On November 13, the Committees transmitted a subpoena to
Ambassador Taylor compelling him to testify at a public hearing
of the Intelligence Committee that same day.\329\ Ambassador
Taylor complied with the Committees' subpoena and testified at
the public hearing. During the hearing, Ambassador Taylor
described the direction he received from the State Department:
Q: Ambassador, were you also asked not to be part of
the deposition?
A: Mr. Quigley, I was told by the State Department:
Don't appear under these circumstances. That was in the
letter to me. And when I got the subpoena, exactly as
Mr. Kent said, that was different circumstances and
obeyed a legal subpoena. So, yes, sir, I'm here for
that reason.\330\
Catherine Croft and Christopher Anderson, Department of State
On October 24, 2019, the Committees sent letters to the
personal attorney representing two State Department officials,
Catherine Croft and Christopher Anderson, seeking their
attendance at depositions on October 30 and November 1,
respectively.\331\
On October 25, their attorney sent a letter to the
Committees acknowledging receipt of the Committees' requests
and stating that ``we are in the process of contacting the
Office of the Legal Advisor of the Department of State in an
effort to learn the disposition of that Office with regard to
the Committee's request.''\332\
On October 28, Under Secretary Bulatao sent letters to the
personal attorney for Ms. Croft and Mr. Anderson. Both letters
enclosed the White House Counsel's October 8 letter and stated:
Pursuant to Mr. Cipollone's letter and in light of
these defects, we are writing to inform you and Ms.
Croft of the Administration-wide direction that
Executive Branch personnel ``cannot participate in [the
impeachment] inquiry under these circumstances.''\333\
On October 30, the Committees transmitted subpoenas to the
personal attorney for Ms. Croft and Mr. Anderson compelling
their appearance at depositions on October 30, stating:
In light of recent attempts by the Administration to
direct witnesses not to appear voluntarily for
depositions, the enclosed subpoenas compel your
clients' mandatory appearance.\334\
Ms. Croft and Mr. Anderson participated in their
depositions on October 30, in compliance with the Committees'
subpoenas.\335\ During Ms. Croft's deposition, her personal
attorney stated:
On October 28th, 2019, Ms. Croft received a letter
through her lawyers from Under Secretary of State Brian
Bulatao, in which we were instructed that Ms. Croft
cannot participate in the impeachment inquiry being
conducted by the House of Representatives and these
committees. Under Secretary Bulatao's letter stated
that these instructions were issued pursuant to a
directive from the Office of White House Counsel.
Nonetheless, Ms. Croft has been served with a valid
subpoena, and so she is obliged to be here today.\336\
During Mr. Anderson's deposition, his personal attorney
stated:
On October 28th, 2019, Mr. Anderson received a
letter, through his lawyers, from Under Secretary of
State Brian Bulatao in which we were instructed that
Mr. Anderson cannot participate in the impeachment
inquiry being conducted by the House of Representatives
and these committees. Under Secretary Bulatao's letter
stated that these instructions were issued pursuant to
a directive from the Office of White House Counsel.
Nonetheless, Mr. Anderson has been served with a valid
subpoena, and so he is obliged to be here today.\337\
Laura K. Cooper, Deputy Assistant Secretary of Defense for Russia,
Ukraine, and Eurasia, Department of Defense
On October 11, the Committees sent a letter to Deputy
Assistant Secretary of Defense Laura K. Cooper seeking her
attendance at a deposition on October 18.\338\
After consulting with Ms. Cooper's personal attorney, the
Committees rescheduled her deposition for October 23.
On October 22, Deputy Secretary of Defense David L.
Norquist sent a letter to Ms. Cooper's personal attorney,
stating:
This letter informs you and Ms. Cooper of the
Administration-wide direction that Executive Branch
personnel ``cannot participate in [the impeachment]
inquiry under these circumstances'' [Tab C]. In the
event that the Committees issue a subpoena to compel
Ms. Cooper's appearance, you should be aware that the
Supreme Court has held, in United States v. Rumely, 345
U.S. 41 (1953), that a person cannot be sanctioned for
refusing to comply with a congressional subpoena
unauthorized by House Rule or Resolution.\339\
On October 23, the Committees sent an email transmitting a
subpoena compelling Ms. Cooper to appear at a deposition on
that date, stating:
In light of recent attempts by the Administration to
direct witnesses not to appear voluntarily for
depositions, the enclosed subpoena compels your
client's mandatory appearance at today's
deposition.\340\
Ms. Cooper participated in the deposition on October 23, in
compliance with the Committees' subpoena.\341\
During her deposition, Ms. Cooper stated with regard to the
Department of Defense, ``They instructed me yesterday not to
participate.''\342\
On November 20, the Committees transmitted a subpoena to
Ms. Cooper compelling her to testify at a public hearing before
the Intelligence Committee on that day.\343\ Ms. Cooper
complied with the Committees' subpoena and testified at the
public hearing.\344\
Mark Sandy, Deputy Associate Director of National Security Programs,
Office of Management and Budget
On November 5, the Committees sent a letter to Mark Sandy,
the Deputy Associate Director of National Security Programs at
OMB, seeking his appearance at a deposition on November 8.\345\
On November 6, Mr. Sandy responded to confirm receipt of the
Committees' letter.\346\
On November 7, an attorney at OMB sent an email to
Committee staff stating:
In light of the Committee's rules that prohibit
agency counsel from being present in a deposition of an
executive branch witness and consistent with the
November 1, 2019 OLC letter opinion addressing this
issue, OMB has directed Mr. Sandy not to appear at
tomorrow's deposition.\347\
After consulting with Mr. Sandy's personal attorney, the
Committees rescheduled his deposition for November 16.
On November 16, the Committees sent an email transmitting a
subpoena compelling Mr. Sandy to appear at a deposition on that
date, stating:
In light of recent attempts by the Administration to
direct witnesses not to appear voluntarily for
depositions, the enclosed subpoena compels your
client's mandatory appearance.\348\
Mr. Sandy participated in the deposition on November 16, in
compliance with the Committees' subpoena.\349\ During his
deposition, Mr. Sandy also testified that the Administration
sent his personal attorney an official communication with
further direction, stating: ``It did direct me to have my
personal counsel ask for a postponement until agency counsel
could accompany me.''\350\
Dr. Fiona Hill, Former Deputy Assistant to the President and Senior
Director for Europe and Russia, National Security Council
On October 9, 2019, the Committees sent a letter seeking
Dr. Hill's testimony at a deposition on October 14.\351\ On
October 13, Dr. Hill's personal attorney informed the White
House that she intended to appear at the scheduled
deposition.\352\ On October 14, the White House sent a letter
to Dr. Hill's personal attorney stating that ``Dr. Hill is not
authorized to reveal or release any classified information or
any information subject to executive privilege.''\353\ Also on
October 14, the Committees sent Dr. Hill a subpoena seeking her
testimony the same day.\354\ Dr. Hill complied and participated
in the deposition.\355\
On November 18, Dr. Hill's personal attorney sent a letter
to the White House stating that Dr. Hill had been invited to
provide testimony at a public hearing on November 21, and
stating: ``We continue to disagree with regard to the
parameters of executive privilege as you articulated it on
October 14 and our prior telephone calls.''\356\ On November
20, the White House sent a letter to Dr. Hill's personal
attorney stating that Dr. Hill ``continues to be bound by
important obligations to refrain from disclosing classified
information or information subject to executive privilege in
her upcoming testimony before the House Permanent Select
Committee on Intelligence.''\357\ On November 21, the
Committees sent Dr. Hill a subpoena seeking her testimony the
same day.\358\ Dr. Hill also complied with this subpoena and
testified at the public hearing.\359\
Lieutenant Colonel Alexander S. Vindman, Director for Ukraine, National
Security Council
On October 16, 2019, the Committees sent a letter seeking
Lt. Col. Alexander Vindman's testimony at a deposition on
October 24.\360\ After discussions with Lt. Col. Vindman's
personal attorneys, the deposition was rescheduled to October
29. On October 29, the Committees sent Lt. Col. Vindman a
subpoena seeking his testimony the same day.\361\ Lt. Col.
Vindman complied.\362\ In addition, on November 19, the
Committees conveyed a subpoena seeking Lt. Col. Vindman's
testimony at a public hearing that same day.\363\ Lt. Col.
Vindman also complied with this subpoena and testified at the
public hearing.\364\
Timothy Morrison, Former Deputy Assistant to the President and Senior
Director for Europe and Russia, National Security Council
On October 16, 2019, the Committees sent a letter to
Timothy Morrison seeking his testimony at a deposition on
October 25.\365\ After discussions with Mr. Morrison's personal
attorney, the deposition was rescheduled to October 31. On
October 31, the Committees sent Mr. Morrison a subpoena seeking
his testimony the same day.\366\ Mr. Morrison complied.\367\ In
addition, on November 19, the Committees conveyed a subpoena
seeking Mr. Morrison's testimony at a public hearing that same
day.\368\ Mr. Morrison also complied with this subpoena and
testified at the public hearing.\369\
David Hale, Under Secretary for Political Affairs, Department of State
On November 1, 2019, the Committees sent a letter seeking
Under Secretary David Hale's testimony at a deposition on
November 6.\370\ On November 5, Mr. Hale's counsel wrote to the
Committees, stating that Mr. Hale would be willing to testify
pursuant to a subpoena.\371\
On November 6, the Committees sent Mr. Hale a subpoena
seeking his testimony the same day.\372\ Mr. Hale
complied.\373\ In addition, on November 20, the Committees
conveyed a subpoena seeking Mr. Hale's testimony at a public
hearing that same day.\374\ Mr. Hale also complied with this
subpoena and testified at the public hearing.\375\
David Holmes, Counselor for Political Affairs at the U.S. Embassy in
Kyiv, Ukraine, Department of State
On November 12, 2019, the Committees sent a letter to
Political Counselor David Holmes' personal attorney seeking his
testimony at a deposition on November 15.\376\ On November 15,
the Committees conveyed a subpoena to Mr. Holmes' personal
attorney seeking his testimony the same day.\377\ Mr. Holmes
complied.\378\ In addition, on November 21, the Committees
conveyed a subpoena seeking Mr. Holmes' testimony at a public
hearing that same day.\379\ Mr. Holmes also complied with this
subpoena and testified at the public hearing.\380\
Ambassador P. Michael McKinley, Former Senior Advisor to the Secretary
of State, Department of State
On October 12, 2019, Committee staff emailed Ambassador P.
Michael McKinley requesting his voluntary participation in a
transcribed interview on October 16.\381\ On October 14, the
Committees sent a letter formalizing this request.\382\ On
October 16, Ambassador McKinley participated in the scheduled
transcribed interview.\383\
Ambassador Philip T. Reeker, Acting Assistant Secretary, Bureau of
European and Eurasian Affairs, Department of State
On October 16, 2019, the Committees sent a letter seeking
Ambassador Philip T. Reeker's testimony at a deposition on
October 23.\384\ On October 25, the Committees sent Ambassador
Reeker a subpoena seeking his testimony on October 26.\385\
Ambassador Reeker complied and testified at the scheduled
deposition.\386\
Ambassador Kurt Volker, Former U.S. Special Representative for Ukraine
Negotiations, Department of State
On September 13, 2019, the Committees wrote a letter to
Secretary Pompeo requesting the testimony of four witnesses,
including Ambassador Kurt Volker.\387\ On September 27, the
Committees sent a follow up letter to Secretary Pompeo, noting
that Ambassador Volker's deposition had been scheduled for
October 3.\388\ On that same day, the Committees sent a letter
directly to Ambassador Volker, seeking his testimony at the
deposition scheduled for October 3.\389\
On October 1, Secretary Pompeo responded to the Committees,
refusing to make Ambassador Volker available on the requested
date.\390\ On October 2, the Department of State wrote a letter
to Ambassador Volker's counsel instructing Ambassador Volker
not to reveal classified or privileged information and
prohibiting Ambassador Volker from producing any government
documents.\391\
On October 2, Ambassador Volker produced copies of text
messages in response to the Committees' request.\392\ On
October 3, Ambassador Volker voluntarily participated in a
transcribed interview.\393\ In addition, on November 19,
Ambassador Volker testified voluntarily at a public
hearing.\394\
Jennifer Williams, Special Advisor for Europe and Russia, Office of the
Vice President
On November 4, 2019, the Committees sent a letter to
Jennifer Williams seeking her testimony at a deposition on
November 7.\395\ On November 7, the Committees sent Ms.
Williams a subpoena seeking her testimony the same day.\396\
Ms. Williams complied.\397\ On November 11, Ms. Williams sent a
letter to Chairman Schiff to make one amendment to her
deposition testimony.\398\ In addition, on November 19, the
Committees conveyed a subpoena seeking Ms. William's testimony
at a public hearing on November 19.\399\ Ms. Williams also
complied with this subpoena and testified at the public
hearing.\400\
6. The President's Intimidation of Witnesses
President Trump publicly attacked and intimidated witnesses
who came forward to comply with duly authorized subpoenas and
testify about his conduct. The President also threatened and
attacked an Intelligence Community whistleblower.
Overview
President Trump engaged in a brazen effort to publicly
attack and intimidate witnesses who came forward to comply with
duly authorized subpoenas and testify about his conduct,
raising grave concerns about potential violations of the
federal obstruction statute and other criminal laws intended to
protect witnesses appearing before Congressional proceedings.
President Trump issued threats, openly discussed possible
retaliation, made insinuations about witnesses' character and
patriotism, and subjected them to mockery and derision. The
President's attacks were broadcast to millions of Americans
including witnesses' families, friends, and coworkers--and his
actions drew criticism from across the political spectrum,
including from his own Republican supporters.
It is a federal crime to intimidate or seek to intimidate
any witness appearing before Congress. This statute applies to
all citizens, including federal officials. Violations of this
law can carry a criminal sentence of up to 20 years in prison.
This campaign of intimidation risks discouraging witnesses
from coming forward voluntarily, complying with mandatory
subpoenas for documents and testimony, and disclosing evidence
that may support consideration of articles of impeachment.
Ambassador Marie Yovanovitch, Former U.S. Ambassador to Ukraine,
Department of State
As discussed above, President Trump removed Marie
Yovanovitch as the U.S. Ambassador to Ukraine in May 2019
following a concerted effort by Rudy Giuliani, his associates
Lev Parnas and Igor Fruman, and others to spread false
conspiracy theories about her. The smearing of the Ambassador
was part of the larger campaign undertaken by Mr. Giuliani at
President Trump's direction and in his capacity as President
Trump's representative. During her deposition on October 11,
Ambassador Yovanovitch explained that she felt threatened and
``very concerned'' after she read President Trump's statements
about her during his July 25 call with President Zelensky,
including President Trump's claim that ``she's going to go
through some things.''\401\
On November 15, Ambassador Yovanovitch testified at a
public hearing that she was shocked'' and ``devastated'' by the
President's statements about her:
I was shocked and devastated that I would feature in
a phone call between two heads of state in such a
manner, where President Trump said that I was bad news
to another world leader and that I would be ``going
through some things.'' So I was--it was--it was a
terrible moment. A person who saw me actually reading
the transcript said that the color drained from my
face. I think I even had a physical reaction. I think,
you know, even now, words kind of fail me.\402\
Ambassador Yovanovitch was also asked about her reaction to
the President's comment that she would ``go through some
things.'' She acknowledged feeling threatened, stating: ``It
didn't sound good. It sounded like a threat.''\403\
As Ambassador Yovanovitch was in the process of testifying
before the Committee, President Trump tweeted an attack against
her. He wrote:
Everywhere Marie Yovanovitch went turned bad. She
started off in Somalia, how did that go? Then fast
forward to Ukraine, where the new Ukrainian President
spoke unfavorably about her in my second phone call
with him. It is a U.S. President's absolute right to
appoint ambassadors.\404\
During the hearing, Chairman Schiff asked Ambassador
Yovanovitch for her reaction to the President's attacks:
Q: Ambassador, you've shown the courage to come
forward today and testify, notwithstanding the fact you
were urged by the White House or State Department not
to; notwithstanding the fact that, as you testified
earlier, the President implicitly threatened you in
that call record. And now, the President in real-time
is attacking you. What effect do you think that has on
other witnesses' willingness to come forward and expose
wrongdoing?
A: Well, it's very intimidating.
Q: It's designed to intimidate, is it not?
A: I--I--I mean, I can't speak to what the President
is trying to do, but I think the effect is to be
intimidating.
Q: Well, I want to let you know, Ambassador, that
some of us here take witness intimidation very, very
seriously.\405\
In response to the President's attacks, Rep. Liz Cheney,
Chair of the House Republican Caucus, stated that the President
``was wrong'' and that Ambassador Yovanovitch ``clearly is
somebody who's been a public servant to the United States for
decades and I don't think the President should have done
that.''\406\ Rep. Francis Rooney, also a Republican, stated:
``I don't necessarily think it's right to be harassing or
beating up on our professional diplomatic service.''\407\
Even after these rebukes, the President continued to attack
and threaten Ambassador Yovanovitch. For example, in an
interview on November 22, President Trump stated: ``This was
not an angel, this woman, okay? And there are a lot of things
that she did that I didn't like. And we will talk about that at
some time.''\408\
Lieutenant Colonel Alexander S. Vindman, Director for Ukraine, National
Security Council
On October 29, President Trump tweeted that Lt. Col.
Alexander Vindman is a ``Never Trumper.''\409\ When asked by a
reporter what evidence he had for his claim, the President
responded: ``We'll be showing that to you real soon.
Okay?''\410\ President Trump continued attacking Lt. Col.
Vindman during his testimony on November 19, seeking to
question his loyalty to the United States. The President
retweeted: ``Lt. Col. Vindman was offered the position of
Defense Minister for the Ukrainian Government THREE
times!''\411\ Allies of the President also questioned Lt. Col.
Vindman's loyalty to the country and amplified the smear.\412\
For his part, Lt. Col. Vindman stated during his testimony:
I want to take a moment to recognize the courage of
my colleagues who have appeared and are scheduled to
appear before this Committee. I want to state that the
vile character attacks on these distinguished and
honorable public servants is reprehensible.\413\
Ambassador William B. Taylor, Jr., Charge d'Affaires for U.S. Embassy
in Kyiv, Department of State
On October 23, one day after Ambassador William Taylor's
deposition, the President sent a tweet comparing ``Never
Trumper Republicans''' to ``human scum.''\414\ An hour later,
he described Ambassador Taylor in a tweet as a ``Never
Trumper.''\415\
On October 25, the President discussed Ambassador Taylor's
testimony with reporters, and again dismissed the Ambassador as
a ``Never Trumper.'' After a reporter noted that Secretary of
State Mike Pompeo had hired Ambassador Taylor, the President
responded: ``Hey, everybody makes mistakes.'' He then had the
following exchange about Ambassador Taylor:
Q: Do you want him out now as the top diplomat?
A: He's a Never Trumper. His lawyer is the head of
the Never Trumpers. They're a dying breed, but they're
still there.\416\
On the morning of November 13, just before Ambassador
Taylor and George Kent testified at a public hearing, the
President tweeted: ``NEVER TRUMPERS!''\417\
Jennifer Williams, Special Advisor for Europe and Russia, Office of the
Vice President
On November 17, two days before Jennifer Williams testified
at a public hearing, President Trump sent a tweet attacking her
and stating that ``she should meet with the other Never
Trumpers, who I don't know & mostly never even heard of, & work
out a better presidential attack!''\418\ During the hearing,
Rep. Jim Himes asked Ms. Williams what impression the
President's tweet had made on her. She responded: ``It
certainly surprised me. I was not expecting to be called out by
name.'' Rep. Himes noted that the tweet ``surprised me, too,
and it looks an awful lot like witness intimidation and
tampering, and an effort to try to get you to perhaps shape
your testimony today.''\419\
Threats of Retaliation
The President suggested that witnesses who testified as
part of the impeachment inquiry could face retaliation. For
example, on November 16, the President sent a pair of tweets
indicating that three witnesses appearing before the
impeachment inquiry could face dismissals as a result of their
testimony. The President tweeted language he attributed to
radio host Rush Limbaugh:
``My support for Donald Trump has never been greater
than it is right now. It is paramountly obvious
watching this, these people have to go. You elected
Donald Trump to drain the Swamp, well, dismissing
people like Yovanovitch is what that looks like.
Dismissing people like Kent . . . and Taylor,
dismissing everybody involved from the Obama holdover
days trying to undermine Trump, getting rid of those
people, dismissing them, this is what it looks like. It
was never going to be clean, they were never going to
sit by idly and just let Trump do this!'' Rush L\420\
Intelligence Community Whistleblower
In addition to his relentless attacks on witnesses who
testified in connection with the House's impeachment inquiry,
the President also repeatedly threatened and attacked a member
of the Intelligence Community who filed an anonymous
whistleblower complaint raising an ``urgent concern'' regarding
the President's conduct. The whistleblower filed the complaint
confidentially with the Inspector General of the Intelligence
Community, as authorized by the relevant whistleblower law.
Federal law prohibits the Inspector General from revealing the
whistleblower's identity.\421\ Federal law also protects the
whistleblower from retaliation.\422\
On September 9, the Inspector General notified Congress
that this individual had filed a credible complaint regarding
an ``urgent concern,'' but that the Acting Director of National
Intelligence was withholding the complaint from Congress
contrary to his statutory obligation to have submitted the
complaint to the congressional intelligence committees by no
later than September 2.\423\ On September 13, 2019, the
Intelligence Committee issued a subpoena to the Acting Director
of National Intelligence for the whistleblower's complaint and
other records.\424\
On September 26, the Intelligence Committee received the
declassified whistleblower complaint and made it available to
the public.\425\
That day, the President issued a chilling threat against
the whistleblower and those who provided information to the
whistleblower regarding the President's misconduct, suggesting
that they could face the death penalty for treason. President
Trump stated:
I want to know who's the person who gave the whistle-
blower the information because that's close to a spy.
You know what we used to do in the old days when we
were smart with spies and treason, right? We used to
handle it a little differently than we do now.\426\
In response, the Committees warned President Trump to stop
attacking the whistleblower, stating:
The President's comments today constitute
reprehensible witness intimidation and an attempt to
obstruct Congress' impeachment inquiry. We condemn the
President's attacks, and we invite our Republican
counterparts to do the same because Congress must do
all it can to protect this whistleblower, and all
whistleblowers. Threats of violence from the leader of
our country have a chilling effect on the entire
whistleblower process, with grave consequences for our
democracy and national security.\427\
Yet the President's attacks did not stop. Instead, he
continued to threaten the whistleblower, publicly questioned
the whistleblower's motives, disputed the accuracy of the
whistleblower's account, and encouraged others to reveal the
whistleblower's identity. The President's focus on the
whistleblower has been obsessive, with the President making
more than 100 public statements about the whistleblower over a
period of just two months. For example, the President stated:
``I want to meet not only my accuser, who
presented SECOND & THIRD HAND INFORMATION, but also the person
who illegally gave this information, which was largely
incorrect, to the Whistleblower.' Was this person SPYING on the
U.S. President? Big Consequences!''\428\
``I think it's outrageous that a Whistleblower is
a CIA agent.''\429\
``But what they said is he's an Obama person. It
was involved with Brennan; Susan Rice, which means Obama. But
he was like a big a big anti-Trump person. Hated Trump.''\430\
``The Whistleblower got it sooo wrong that HE must
come forward. The Fake News Media knows who he is but, being an
arm of the Democrat Party, don't want to reveal him because
there would be hell to pay. Reveal the Whistleblower and end
the Impeachment Hoax!''\431\
``But the whistleblower should be revealed because
the whistleblower gave false stories. Some people would call it
a fraud; I won't go that far. But when I read it closely, I
probably would. But the whistleblower should be
revealed.''\432\
``I think that the whistleblower gave a lot of
false information.''\433\
``The whistleblower is not a whistleblower. He's a
fake. ``Everybody knows who the whistleblower is. And the
whistleblower is a political operative.''\434\
In response to a request from Intelligence Committee
Ranking Member Nunes to call the whistleblower to testify at an
open hearing, Chairman Schiff underscored the danger posed by
the President's threats against the whistleblower and why the
whistleblower's testimony was now unnecessary:
The Committee also will not facilitate efforts by
President Trump and his allies in Congress to threaten,
intimidate, and retaliate against the whistleblower who
courageously raised the initial alarm. It remains the
duty of the Intelligence Committee to protect
whistleblowers, and until recently, this was a
bipartisan priority. The whistleblower has a right
under laws championed by this Committee to remain
anonymous and to be protected from harm.
The impeachment inquiry, moreover, has gathered an
ever-growing body of evidence--from witnesses and
documents, including the President's own words in his
July 25 call record--that not only confirms, but far
exceeds, the initial information in the whistleblower's
complaint. The whistleblower's testimony is therefore
redundant and unnecessary. In light of the President's
threats, the individual's appearance before us would
only place their personal safety at grave risk.\435\
Until President Trump's attacks on the whistleblower,
Republicans and Democrats were united in protecting
whistleblowers' right to report abuses of power and be free
from retaliation.\436\ For example, Ranking Member Nunes,
serving in 2017 as Chairman of the Intelligence Committee,
spoke in defense of whistleblowers, stating: ``We want people
to come forward and we will protect the identity of those
people at all cost.''\437\ He also stated:
As you know, and I've said this several times, we
don't talk about sources at this committee. . . . The
good thing is, is that we have continued to have people
come forward, voluntarily, to this committee and we
want to continue that and I will tell you that that
will not happen if we tell you who our sources are and
people that come--come to the committee.\438\
Other Republican Members of Congress have opposed efforts
to expose the whistleblower. For example, Senator Charles
Grassley stated:
This person appears to have followed the
whistleblower protection laws and ought to be heard out
and protected. We should always work to respect
whistleblowers' requests for confidentiality. Any
further media reports on the whistleblower's identity
don't serve the public--interest even if the conflict
sells more papers or attracts clicks.\439\
Senator Richard Burr, the Chair of the Senate Select
Committee on Intelligence, affirmed that he would ``never''
want the identity of the whistleblower revealed and stated,
``We protect whistleblowers. We protect witnesses in our
committee.''\440\
Senator Mitt Romney also called for support of the
whistleblower's rights, stating: ``[W]histleblowers should be
entitled to confidentiality and privacy, because they play a
vital function in our democracy.''\441\
SECTION II ENDNOTES
1. U.S. Const. Art. I, Sec. 2, cl. 5.
2. Statement of George Mason, Madison Debates (July 20,
1787).
3. McGrain v. Daugherty, 273 U.S. 135 (1927) (``We are of
[the] opinion that the power of inquiry--with process to
enforce it--is an essential and appropriate auxiliary to the
legislative function.''); Eastland v. United States
Servicemen's Fund, 421 U.S. 491 (1975) (``the power to
investigate is inherent in the power to make laws''); Committee
on the Judiciary v. McGahn, Case No. 1:19-cv-02379, Memorandum
Opinion, Doc. No. 46 (D.D.C. Nov. 25, 2019) (``[T]he House of
Representatives has the constitutionally vested responsibility
to conduct investigations of suspected abuses of power within
the government, and to act to curb those improprieties, if
required.''). As of this report, an appeal is pending in the
D.C. Circuit. No. 19-5331 (D.C. Cir.).
4. Cf. Nixon v. Fitzgerald, 457 U.S. 731 (1982) (``Vigilant
oversight by Congress also may serve to deter Presidential
abuses of office, as well as to make credible the threat of
impeachment.''); Senate Select Committee on Presidential
Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974)
(discussing in dicta the ``inquiry into presidential
impeachment'' opened by the House Judiciary Committee regarding
President Nixon and explaining, ``The investigative authority
of the Judiciary Committee with respect to presidential conduct
has an express constitutional source.''); In re Report &
Recommendation of June 5, 1972 Grand Jury Concerning
Transmission of Evidence to House of Representatives, 370 F.
Supp. 1219 (D.D.C. 1974) (``[I]t should not be forgotten that
we deal in a matter of the most critical moment to the Nation,
an impeachment investigation involving the President of the
United States. It would be difficult to conceive of a more
compelling need than that of this country for an unswervingly
fair inquiry based on all the pertinent information.''). In
1833, Justice Joseph Story reasoned--while explaining why
pardons cannot confer immunity from impeachment--that, ``The
power of impeachment will generally be applied to persons
holding high office under the government; and it is of great
consequence that the President should not have the power of
preventing a thorough investigation of their conduct, or of
securing them against the disgrace of a public conviction by
impeachment, should they deserve it. The constitution has,
therefore, wisely interposed this check upon his power.''
Joseph L. Story, 3 Commentaries on the Constitution of the
United States Sec. 1501 (1873 ed., T.M. Cooley (ed.)).
5. House Committee on the Judiciary, Impeachment of Richard
M. Nixon, President of the United States, 93rd Cong. (1974) (H.
Rep. 93-1305).
6. Statement of Rep. William Lyman, Annals of Congress, 4th
Cong. 601 (1796).
7. Department of Justice, Office of Legal Counsel, A
Sitting President's Amenability to Indictment and Criminal
Prosecution (Oct. 16, 2000) (explaining that a President ``who
engages in criminal behavior falling into the category of `high
Crimes and Misdemeanors''' is ``always subject to removal from
office upon impeachment by the House and conviction by the
Senate'') (online at www.justice.gov/sites/default/files/olc/
opinions/2000/10/31/op-olc-v024-p0222_0.pdf).
8. Id. (``Moreover, the constitutionally specified
impeachment process ensures that the immunity [of a sitting
President from prosecution] would not place the President
`above the law.'''). President Trump's personal lawyers have
staked out the more extreme position that the President may not
be investigated by law enforcement agencies while in office.
For example, President Trump's personal attorney asserted in
court that the President could not be investigated by local
authorities if he committed murder while in office. If Trump
Shoots Someone on 5th Ave., Does He Have Immunity? His Lawyer
Says Yes, New York Times (Oct. 23, 2019) (online at
www.nytimes.com/2019/10/23/nyregion/trump-taxes-vance.html). A
federal district court and appeals court rejected this
argument. Trump v. Vance, 941 F.3d 631 (2nd Cir. 2019)
(``presidential immunity does not bar the enforcement of a
state grand jury subpoena directing a third party to produce
non-privileged material, even when the subject matter under
investigation pertains to the President''); Trump v. Vance, 395
F. Supp. 3d 283 (S.D.N.Y. 2019) (calling the President's claims
of ``unqualified and boundless'' immunity from judicial process
``repugnant to the nation's governmental structure and
constitutional values''). The case is currently being appealed.
9. Barenblatt v. U.S, 360 U.S. 109 (1959).
10. McGrain v. Daugherty, 273 U.S. 135 (1927) (``A
legislative body cannot legislate wisely or effectively in the
absence of information--respecting the conditions which the
legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite
information--which not infrequently is true--recourse must be
had to others who do possess it. Experience has taught that
mere requests for such information often are unavailing, and
also that information which is volunteered is not always
accurate or complete; so some means of compulsion are essential
to obtain what is needed.''); Eastland v. United States
Servicemen's Fund, 421 U.S. 491 (1975) (``the subpoena power
may be exercised by a committee acting, as here, on behalf of
one of the Houses''); Committee on the Judiciary v. Miers, 558
F. Supp. 2d 84 (D.D.C. 2008) (``In short, there can be no
question that Congress has a right--derived from its Article I
legislative function--to issue and enforce subpoenas, and a
corresponding right to the information that is the subject of
such subpoenas. . . . Congress's power of inquiry is as broad
as its power to legislate and lies at the very heart of
Congress's constitutional role. Indeed, the former is necessary
to the proper exercise of the latter: according to the Supreme
Court, the ability to compel testimony is `necessary to the
effective functioning of courts and legislatures.''') (citation
omitted).
11. U.S. Const. Art. I, Sec. 5, cl. 2.
12. Watkins v. United States, 354 U.S. 178 (1957).
13. See Committee on the Judiciary v. Miers, 558 F. Supp.
2d 84 (D.D.C. 2008) (``Thus, federal precedent dating back as
far as 1807 contemplates that even the Executive is bound to
comply with duly issued subpoenas.'').
14. Committee on the Judiciary v. McGahn, Case No. 1:19-cv-
02379, Memorandum Opinion, Doc. No. 46 (D.D.C. Nov. 25, 2019).
As of this report, an appeal is pending in the D.C. Circuit.
No. 19-5331 (D.C. Cir.).
15. 18 U.S.C. Sec. 1505.
16. 18 U.S.C. Sec. 1001 (also prohibiting making ``any
materially false, fictitious, or fraudulent statement or
representation'' or making or using ``any false writing or
document knowing the same to contain any materially false,
fictitious, or fraudulent statement or entry'' in connection
with a Congressional investigation).
17. 18 U.S.C. Sec. 1512(b); See also 18 U.S.C. 1515(a)
(defining ``official proceeding'' to include ``a proceeding
before the Congress'').
18. 18 U.S.C. Sec. 1512(d).
19. See, e.g., 5 U.S.C. Sec. 2302; 10 U.S.C. Sec. 1034;
P.L. 113-126.
20. P.L. 116-6, Sec. 713 (``No part of any appropriation
contained in this or any other Act shall be available for the
payment of the salary of any officer or employee of the Federal
Government, who . . . prohibits or prevents, or attempts or
threatens to prohibit or prevent, any other officer or employee
of the Federal Government from having any direct oral or
written communication or contact with any Member, committee, or
subcommittee of the Congress in connection with any matter
pertaining to the employment of such other officer or employee
or pertaining to the department or agency of such other officer
or employee in any way, irrespective of whether such
communication or contact is at the initiative of such other
officer or employee or in response to the request or inquiry of
such Member, committee, or subcommittee.'').
21. House Committee on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, 93rd Cong.
(1974) (H. Rep. 93-1305).
22. House Committee on the Judiciary, Impeachment of
William Jefferson Clinton, President of the United States,
105th Cong. (1998) (H. Rep. 105-830).
23. The White House, The President's Remarks Announcing
Developments and Procedures to be Followed in Connection with
the Investigation (Apr. 17, 1973). President Nixon initially
stated that members of his ``personal staff'' would ``decline a
request for a formal appearance before a committee of the
Congress,'' but reversed course approximately one month later.
The White House, Statement by the President, Executive
Privilege (Mar. 12, 1973).
24. See, e.g., Senate Select Committee on Presidential
Campaign Activities, Testimony of John Dean, Watergate and
Related Activities, Phase I: Watergate Investigation, 93rd
Cong. (June 25, 1973); Senate Select Committee on Presidential
Campaign Activities, Testimony of H.R. Haldeman, Watergate and
Related Activities, Phase I: Watergate Investigation, 93rd
Cong. (July 30, 1973); Senate Select Committee on Presidential
Campaign Activities, Testimony of Alexander Butterfield,
Watergate and Related Activities, Phase I: Watergate
Investigation, 93rd Cong. (July 16, 1973); Senate Select
Committee on Presidential Campaign Activities, Testimony of
John Ehrlichman, Watergate and Related Activities, Phase I:
Watergate Investigation, 93rd Cong. (July 24, 1973).
25. See House Committee on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, 93rd Cong.
(1974) (H. Rep. 93-1305).
26. Id.
27. Id. (quoting letter from Chairman Peter W. Rodino, Jr.,
House Committee on the Judiciary, to President Richard M. Nixon
(May 30, 1974)).
28. H.R. Jour., 29th Cong., 1st Sess., 693 (Apr. 20, 1846).
29. Senate Select Committee on Secret Military Assistance
to Iran and the Nicaraguan Opposition and House Select
Committee to Investigate Covert Arms Transactions with Iran,
Testimony of Oliver North, Iran-Contra Investigation: Joint
Hearings Before the House Select Committee to Investigate
Covert Arms Transactions with Iran and the Senate Select
Committee on Secret Military Assistance to Iran and the
Nicaraguan Oppositions, 100th Cong. (July 7, 1987); Senate
Select Committee on Secret Military Assistance to Iran and the
Nicaraguan Opposition and House Select Committee to Investigate
Covert Arms Transactions with Iran, Testimony of John
Poindexter, Iran-Contra Investigation: Joint Hearings Before
the House Select Committee to Investigate Covert Arms
Transactions with Iran and the Senate Select Committee on
Secret Military Assistance to Iran and the Nicaraguan
Oppositions, 100th Cong. (July 15, 1987).
30. Committee on the Judiciary v. McGahn, Civ. No. 1:19-cv-
02379, Memorandum Opinion, Doc. No. 46 (D.D.C. Nov. 25, 2019).
As of this report, an appeal is pending in the D.C. Circuit.
No. 19-5331 (D.C. Cir.).
31. Committee on Government Reform, Democratic Staff,
Congressional Oversight of the Clinton Administration (Jan. 17,
2006) (online at https://wayback.archive-it.org/4949/
20141031200116/http://oversight-archive.waxman.house.gov/
documents/20060117103516-91336.pdf) (noting that Republican Dan
Burton, Chairman of the Committee on Government Reform, deposed
141 Clinton Administration officials during his tenure).
32. Select Committee on the Events Surrounding the 2012
Terrorist Attack in Benghazi, Final Report of the Select
Committee on the Events Surrounding the 2012 Terrorist Attack
in Benghazi, 114th Cong. (2016) (H. Rep. 114-848) (noting that
the Select Committee interviewed or received testimony from 107
people--none of whom was instructed not to appear--including 57
current and former State Department officials such as Secretary
of State Hillary Clinton, Chief of Staff and Counselor to the
Secretary of State Cheryl Mills, Deputy Chief of Staff and
Director of Policy Planning Jacob Sullivan, and Deputy Chief of
Staff for Operations Huma Abedin; 24 Defense Department
officials such as Secretary Leon Panetta and General Carter
Ham; and 19 Central Intelligence Agency (CIA) officials such as
Director David Petraeus and former Deputy Director Michael
Morell).
33. Id. (including productions of 71,640 pages of State
Department documents, 300 pages of CIA intelligence analyses,
200 pages of Federal Bureau of Investigation (FBI) documents,
900 pages of Defense Department documents, and 750 pages of
National Security Agency documents).
34. See, e.g., House rule X, clause 2(a) (assigning
``general oversight responsibilities'' to committees); House
Rule XI, clause 2(m) (authorizing Committees to ``hold such
hearings as it considers necessary'' and to ``require, by
subpoena or otherwise, the attendance and testimony of such
witnesses and the production of such books, records,
correspondence, memoranda, papers, and documents as it
considers necessary''); H. Res. 6 (2019) (granting deposition
authority to committees); 116th Congress Regulations for Use of
Deposition Authority, Congressional Record (Jan. 25, 2019)
(establishing procedures for committee depositions).
35. See, e.g., House Rules (2017); H. Res. 5 (2017); 115th
Congress Staff Deposition Authority Procedures, Congressional
Record (Jan. 13, 2017).
36. Special Counsel Robert S. Mueller III, Department of
Justice, Report on The Investigation Into Russian Interference
In The 2016 Presidential Election, Vol. I (March 2019) (online
at www.justice.gov/storage/report.pdf); Special Counsel Robert
S. Mueller, III, Department of Justice, Report on The
Investigation Into Russian Interference In The 2016
Presidential Election, Vol. II (March 2019) (online at
www.justice.gov/storage/report_volume2.pdf).
37. See H. Res. 430; see also H. Rep. 116-105 (2019) (the
purposes of the Judiciary Committee's investigation include
``considering whether any of the conduct described in the
Special Counsel's Report warrants the Committee in taking any
further steps under Congress' Article I powers,'' including
``whether to approve articles of impeachment with respect to
the President or any other Administration official'').
38. See Letter from Chairman Jerrold Nadler, House
Committee on the Judiciary, to Chairman Adam B. Schiff, House
Permanent Select Committee on Intelligence, Chairwoman Maxine
Waters, House Committee on Financial Services, Chairman Elijah
E. Cummings, House Committee on Oversight and Reform, and
Chairman Eliot L. Engel, House Committee on Foreign Affairs
(Aug. 22, 2019) (onlineathttps://judiciary.house.gov/sites/
democrats.judiciary.house.gov/files/documents/
FiveChairsLetter8.22.pdf).
39. Id.
40. Letter from Chairman Eliot L. Engel, House Committee on
Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Pat A.
Cipollone, Counsel to the President, The White House (Sept. 9,
2019) (onlineathttps://intelligence.house.gov/uploadedfiles/
ele_schiff_cummings_letter_to_cipollone_on_ukraine.pdf); Letter
from Chairman Eliot L. Engel, House Committee on Foreign
Affairs, Chairman Adam B. Schiff, House Permanent Select
Committee on Intelligence, and Chairman Elijah E. Cummings,
House Committee on Oversight and Reform, to Secretary Michael
R. Pompeo, Department of State (Sept. 9, 2019) (online attps://
intelligence.house.gov/uploadedfiles/
ele_schiff_cummings_letter_to_sec_pompeo_on_ukraine.pdf);
Letter from Chairman Eliot L. Engel, Committee on Foreign
Affairs, Chairman Adam B. Schiff, Permanent Select Committee on
Intelligence, and Chairman Elijah E. Cummings, Committee on
Oversight and Reform, to Secretary Michael R. Pompeo,
Department of State (Sept. 13, 2019) (online at https://
oversight.house.gov/sites/democrats.oversight.house.gov/files/
2019-09-13.EEC%20ELE%20Schiff%20re%20Ukraine.pdf).
41. The White House, Remarks by President Trump Before
Marine One Departure (Sept. 22, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-marine-one-departure-66/) (``We had a great conversation.
The conversation I had was largely congratulatory. It was
largely corruption--all of the corruption taking place. It was
largely the fact that we don't want our people, like Vice
President Biden and his son, creating to the corruption already
in the Ukraine.'').
42. Speaker of the House Nancy Pelosi, Pelosi Remarks
Announcing Impeachment Inquiry (Sept. 24, 2019) (online at
www.speaker.gov/newsroom/92419-0).
43. The White House, Memorandum of Telephone Conversation
(July 25, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/09/Unclassified09.2019.pdf).
44. See, e.g., Letter from Chairman Elijah E. Cummings,
House Committee on Oversight and Reform, Chairman Adam B.
Schiff, House Permanent Select Committee on Intelligence, and
Chairman Eliot L. Engel, House Committee on Foreign Affairs, to
Mick Mulvaney, Acting Chief of Staff, The White House (Oct. 4,
2019) (onlineathttps://oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2019-10-
04.EEC%20Engel%20Schiff%20to%20Mulvaney-
WH%20re%20Subpoena.pdf).
45. H. Res. 660 (2019).
46. Trump Vows Stonewall of `All' House Subpoenas, Setting
Up Fight Over Powers, New York Times (Apr. 24, 2019) (online at
www.nytimes.com/2019/04/24/us/politics/donald-trump-
subpoenas.html).
47. While Bemoaning Mueller Probe, Trump Falsely Says the
Constitution Gives Him `The Right to do Whatever I Want',
Washington Post (July 23, 2019) (online at
www.washingtonpost.com/politics/2019/07/23/trump-falsely-tells-
auditorium-full-teens-constitution-gives-him-right-do-whatever-
i-want/).
48. Donald J. Trump, Twitter (Oct. 1, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1179179573541511176).
49. At Louisiana Rally, Trump Lashes Out at Impeachment
Inquiry and Pelosi, New York Times (Oct. 11, 2019) (online at
www.nytimes.com/2019/10/11/us/trump-rally-louisiana-lake-
charles.html).
50. Donald J. Trump, Twitter (Oct. 18, 2019) (online at
https://twitter.com/realDonaldTrump/status/1185374394350215169)
(purporting to quote former Rep. Jason Chaffetz).
51. Donald J. Trump, Twitter (Sept. 21, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1175409914384125952).
52. Donald J. Trump, Twitter (Sept. 24, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1176559970390806530).
53. Donald J. Trump, Twitter (Sept. 24, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1176623010230525953).
54. The White House, Remarks by President Trump and
President Salih of Iraq Before Bilateral Meeting (Sept. 24,
2019) (online at www.whitehouse.gov/briefings-statements/
remarks-president-trump-president-salih-iraq-bilateral-meeting-
new-york-ny-2/).
55. The White House, Remarks by President Trump and
President Bukele of El Salvador Before Bilateral Meeting (Sept.
25, 2019) (online at www.whitehouse.gov/briefings-statements/
remarks-president-trump-president-bukele-el-salvador-bilateral-
meeting-new-york-ny/).
56. The White House, Remarks by President Trump in a
Multilateral Meeting on the Bolivarian Republic of Venezuela
(Sept. 25, 2019) (online at www.whitehouse.gov/briefings-
statements/remarks-president-trump-multilateral-meeting-
bolivarian-republic-venezuela-new-york-ny/).
57. Donald J. Trump, Twitter (Sept. 26, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1177285017636093953).
58. Donald J. Trump, Twitter (Oct. 1, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1179023004241727489).
59. Donald J. Trump, Twitter (Oct. 5, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1180482408522629120).
60. Donald J. Trump, Twitter (Oct. 8, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1181761045486080002).
61. The White House, Remarks by President Trump at Signing
of Executive Orders on Transparency in Federal Guidance and
Enforcement (Oct. 9, 2019) (online at www.whitehouse.gov/
briefings-statements/remarks-president-trump-signing-executive-
orders-transparency-federal-guidance-enforcement/).
62. Donald J. Trump, Twitter (Oct. 9, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1181913137483829250).
63. Donald J. Trump, Twitter (Oct. 9, 2019) (online at
https://twitter.com/realdonaldtrump/status/
1181969511697788928).
64. Donald J. Trump, Twitter (Oct. 20, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1186035686396321793).
65. Donald J. Trump, Twitter (Nov. 12, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1194214569591394304).
66. Donald J. Trump, Twitter (Nov. 24, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1198733640722718725).
67. Donald J. Trump, Twitter (Nov. 26, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1199352977934487553).
68. The White House, Remarks by President Trump Upon Air
Force One Arrival (Sept. 26, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-upon-air-force-one-arrival-prince-georges-county-md/).
69. See, e.g., Co-Equal, Investigative Rules and Practices
Followed by House Republicans (online at www.co-equal.org/
guide-to-congressional-oversight/investigative-rules-and-
practices-followed-by-house-republicans). See also Committee on
Government Reform, Democratic Staff, Congressional Oversight of
the Clinton Administration (Jan. 17, 2006) (online at https://
wayback.archive-it.org/4949/20141031200116/http://oversight-
archive.waxman.house.gov/documents/20060117103516-91336.pdf)
(noting that House Republicans conducted hundreds of
confidential depositions of both political appointees and
career officials without agency counsel present, with one
Committee alone conducting over 140 depositions of Clinton
Administration officials).
70. Letter from Pat A. Cipollone, Counsel to the President,
The White House, to House Speaker Nancy Pelosi, Chairman Adam
B. Schiff, House Permanent Select Committee on Intelligence,
Chairman Eliot L. Engel, House Committee on Foreign Affairs
Committee, and Chairman Elijah E. Cummings, House Committee on
Oversight and Reform (Oct. 8, 2019) (online at
www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-
10.08.2019.pdf).
71. Speech: Donald Trump Holds a Political Rally in
Minneapolis, Minnesota, Factbase Videos (Oct. 10, 2019) (online
at www.youtube.com/
watch?time_continue=742&v=_y8Al_mGwmc&feature=emb_logo).
72. Gregg Nunziata, a former legal counsel and senior
policy advisor to Senator Marco Rubio, stated: ``This letter is
bananas. A barely-lawyered temper tantrum.'' Gregg Nunziata,
Twitter (Oct. 8, 2019) (online at https://twitter.com/
greggnunziata/status/1181685021926662144). Jonathan Turley, a
law professor who has represented House Republicans, stated:
``A President cannot simply pick up his marbles and leave the
game because he does not like the other players. A refusal to
cooperate with a constitutionally mandated process can itself
be an abuse of power.'' White House Issues Defiant Letter
Refusing to Cooperate in Impeachment Proceedings, Res Ipsa
Loquitur (Oct. 9, 2019) (online at https://jonathanturley.org/
2019/10/09/white-house-issues-defiant-letter-refusing-to-
cooperate-in-impeachment-proceedings/). Preet Bharara, the
former U.S. Attorney for the Southern District of New York,
stated, ``It's one of the worst letters I've seen from the
White House counsel's office.'' George Conway, a prominent
conservative attorney, called Mr. Cipollone's letter ``a
disgrace to the country, a disgrace to the presidency, and a
disgrace to the legal profession.'' He accused the White House
of ``clearly engaging in obstructionist tactics.'' Diagnosing
Trump (with George Conway), Stay Tuned with Preet Bharara (Oct.
9, 2019) (online at https://cafe.com/stay-tuned-transcript-
diagnosing-trump-with-george-conway/). Mr. Conway also stated:
``I cannot fathom how any self-respecting member of the bar
could affix his name to this letter. It's pure hackery, and it
disgraces the profession.'' George T. Conway, III, Twitter
(Oct. 8, 2019) (online at https://twitter.com/gtconway3d/
status/1181685229687394307).
73. Letter from Pat A. Cipollone, Counsel to the President,
The White House, to Acting Chairwoman Carolyn B. Maloney, House
Committee on Oversight and Reform, Chairman Adam B. Schiff,
House Permanent Select Committee on Intelligence Chairman Eliot
L. Engel, Chairman, House Committee on Foreign Affairs (Oct.
18, 2019).
74. Department of Justice, Office of Legal Counsel,
Exclusion of Agency Counsel from Congressional Depositions in
the Impeachment Context (Nov. 1, 2019) (online at
www.justice.gov/olc/file/1214996/download).
75. Department of Justice, Office of Legal Counsel, Legal
Aspects of Impeachment: An Overview (1974) (quoting President
James K. Polk) (online at www.justice.gov/olc/page/file/980036/
download).
76. Position of the Executive Department Regarding
Investigative Reports, 40 Op. Atty Gen. 45 (1941).
77. Letter from Pat A. Cipollone, Counsel to the President,
The White House, to House Speaker Nancy Pelosi, Chairman Adam
B. Schiff, House Permanent Select Committee on Intelligence,
Chairman Eliot L. Engel, House Committee on Foreign Affairs
Committee, and Chairman Elijah E. Cummings, House Committee on
Oversight and Reform (Oct. 8, 2019) (online at
www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-
10.08.2019.pdf).
78. See, e.g., The White House, Remarks by President Trump
and President Salih of Iraq Before Bilateral Meeting (Sept. 24,
2019) (online at www.whitehouse.gov/briefings-statements/
remarks-president-trump-president-salih-iraq-bilateral-meeting-
new-york-ny/) (``The phone call was perfect.''); The White
House, Remarks by President Trump Upon Arriving at the U.N.
General Assembly (Sept. 24, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-upon-arriving-u-n-general-assembly-new-york-ny/) (``That
call was perfect.''); Donald J. Trump, Twitter (Nov. 11, 2019)
(online at https://twitter.com/realDonaldTrump/status/
1193615188311912449) (``The call to the Ukrainian President was
PERFECT.'').
79. Letter from Pat A. Cipollone, Counsel to the President,
The White House, to House Speaker Nancy Pelosi, Chairman Adam
B. Schiff, House Permanent Select Committee on Intelligence,
Chairman Eliot L. Engel, House Committee on Foreign Affairs
Committee, and Chairman Elijah E. Cummings, House Committee on
Oversight and Reform (Oct. 8, 2019) (online at
www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-
10.08.2019.pdf).
80. See House Committee on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, 93rd Cong.
(1974) (H. Rep. 93-1305) (Impeachment Article III: ``In
refusing to produce these papers and things, Richard M. Nixon,
substituting his judgment as to what materials were necessary
for the inquiry, interposed the powers of the presidency
against the lawful subpoenas of the House of Representatives,
thereby assuming to himself functions and judgments necessary
to the exercise of the sole power of impeachment vested by the
Constitution in the House of Representatives.'').
81. In this case, one Republican Member of the House of
Representatives supported impeaching President Trump--Rep.
Justin Amash from Michigan. In explaining his support, Rep.
Amash noted the importance of upholding Congress' ``duties
under our Constitution'' rather than ``loyalty to a political
party.'' After Rep. Amash announced his support for
impeachment, President Trump denounced him as a ``total
lightweight'' and a ``loser.'' Rep. Amash subsequently declared
that he was leaving the Republican party. See Justin Amash,
Twitter (May 18, 2019) (online at https://twitter.com/
justinamash/status/1129831626844921862); Trump Calls
Representative Justin Amash a `Loser' Over Impeachment Talk,
New York Times (May 19, 2019) (online at www.nytimes.com/2019/
05/19/us/politics/trump-justin-amash-impeachment.html); Justin
Amash: Our politics is in a partisan death spiral. That's why
I'm leaving the GOP, Washington Post (July 4, 2019) (online at
www.washingtonpost.com/opinions/justin-amash-our-politics-is-
in-a-partisan-death-spiral-thats-why-im-leaving-the-gop/2019/
07/04/afbe0480-9e3d-11e9-b27f-ed2942f73d70story.html).
82. Letter from Pat A. Cipollone, Counsel to the President,
The White House, to Acting Chairwoman Carolyn B. Maloney, House
Committee on Oversight and Reform, Chairman Adam B. Schiff,
House Permanent Select Committee on Intelligence, Chairman
Eliot L. Engel, Chairman, House Committee on Foreign Affairs
(Oct. 18, 2019).
83. Jefferson's Manual of Parliamentary Practice Sec. 603
(stating that ``various events have been credited with setting
an impeachment in motion,'' including ``facts developed and
reported by an investigating committee of the House''). On
October 25, 2019, a federal district court affirmed that ``no
governing law requires'' the House to hold a such a vote. In re
Application of the Committee on the Judiciary, United States
House of Representatives, 2019 U.S. Dist. LEXIS 184857 (D.D.C.
2019). More than 300 legal scholars agreed, concluding that
``the Constitution does not mandate the process for impeachment
and there is no constitutional requirement that the House of
Representatives authorize an impeachment inquiry before one
begins.'' An Open Letter from Legal Scholars on Trump
Impeachment Inquiry (Oct. 17, 2019) (online at
www.law.berkeley.edu/wp-content/uploads/2019/10/Open-Letter-
from-Legal-Scholars-re-Impeachment.pdf).
84. In re Application of the Committee on the Judiciary,
United States House of Representatives, 2019 U.S. Dist. LEXIS
184857 (D.D.C. 2019).
85. See, e.g., 3 Deschler Ch. 14 Sec. 5 (discussing
impeachment of Justice William O. Douglas).
86. See, e.g., H. Res. 87, 101st Cong. (1989) (impeachment
of Judge Walter L. Nixon, Jr.); H. Res. 461, 99th Cong. (1986)
(impeachment of Judge Harry E. Claiborne).
87. H. Res. 6 (2019); H. Res. 660 (2019). In addition, on
June 11, 2019, the House approved House Resolution 430, which,
in part, authorized the House Committee on the Judiciary to
seek judicial enforcement of subpoenas in the ongoing
investigation related to Special Counsel Mueller's report. The
resolution granted the Committee ``any and all necessary
authority under Article I of the Constitution'' to seek
judicial enforcement. The accompanying report by the House
Committee on Rules explained that this authority is intended to
further the Judiciary Committee's ongoing investigation, the
purpose of which includes assessing whether to recommend
``articles of impeachment with respect to the President.'' H.
Rep. 116-108, quoting H. Rep. 116-105.
88. Letter from Pat A. Cipollone, Counsel to the President,
The White House, to House Speaker Nancy Pelosi, Chairman Adam
B. Schiff, House Permanent Select Committee on Intelligence,
Chairman Eliot L. Engel, House Committee on Foreign Affairs
Committee, and Chairman Elijah E. Cummings, House Committee on
Oversight and Reform (Oct. 8, 2019) (online at
www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-
10.08.2019.pdf). President Trump has also made these claims
directly, stating: ``we had a great two weeks watching these
crooked politicians, not giving us due process, not giving us
lawyers, not giving us the right to speak, and destroying their
witnesses,'' and ``we weren't allowed any rights.'' Speech:
Donald Trump Holds a Political Rally in Sunrise, Florida,
Factbase Videos (Nov. 26, 2019) (online at www.youtube.com/
watch?v=zoRcCRULQl8&feature=youtu.be).
89. Indeed, Mr. Cipollone articulated no basis under the
Constitution for his various ``due process''' demands--and
there is no such basis, especially when the House is engaged in
a fact-finding investigation as part of its efforts to
ascertain whether to consider articles of impeachment. See H.
Rept. 116-266 (2019).
90. H. Res. 660 (2019).
91. H. Rept. 116-266 (2019) (``The purpose of providing
these protections is to ensure that the president has a fair
opportunity to present evidence to the Judiciary Committee if
it must weigh whether to recommend articles of impeachment
against him to the full House.'').
92. Letter from Pat A. Cipollone, Counsel to the President,
to House Speaker Nancy Pelosi, Chairman Adam B. Schiff, House
Permanent Select Committee on Intelligence, Chairman Eliot L.
Engel, House Committee on Foreign Affairs, and Chairman Elijah
E. Cummings, Committee on Oversight and Reform (Oct. 8, 2019)
(online at www.whitehouse.gov/wp-content/uploads/2019/10/PAC-
Letter-10.08.2019.pdf).
93. In a September 25, 2019, statement, a Department of
Justice spokesperson stated: ``The Attorney General was first
notified of the President's conversation with Ukrainian
President Zelensky several weeks after the call took place,
when the Department of Justice learned of a potential referral.
The President has not spoken with the Attorney General about
having Ukraine investigate anything relating to former Vice
President Biden or his son. The President has not asked the
Attorney General to contact Ukraine--on this or any other
matter. The Attorney General has not communicated with
Ukraine--on this or any other subject. Nor has the Attorney
General discussed this matter, or anything relating to Ukraine,
with Rudy Giuliani.'' As to the President's conduct with regard
to Ukraine, the Department stated: ``In August, the Department
of Justice was referred a matter relating to a letter the
Director of National Intelligence had received from the
Inspector General for the Intelligence Community regarding a
purported whistleblower complaint. The Inspector General's
letter cited a conversation between the President and Ukrainian
President Zelensky as a potential violation of federal campaign
finance law, while acknowledging that neither the Inspector
General nor the complainant had firsthand knowledge of the
conversation. Relying on established procedures set forth in
the Justice Manual, the Department's Criminal Division reviewed
the official record of the call and determined, based on the
facts and applicable law, that there was no campaign finance
violation and that no further action was warranted. All
relevant components of the Department agreed with this legal
conclusion, and the Department has concluded the matter.''
Department of Justice (Sept. 25, 2019) (as emailed by the
Department of Justice to the House Permanent Select Committee
on Intelligence).
94. H. Rept. 116-266 (2019) (The report continued: ``As
previously described, an impeachment inquiry is not a criminal
trial and should not be confused with one. The president's
liberty is not at stake and the constitutional protections
afforded a criminal defendant do not as a matter of course
apply. The constitutionally permitted consequences of
impeachment are limited to immediate removal from office and
potentially being barred from holding future federal office.
Moreover, it is the Senate that conducts the trial to determine
whether the conduct outlined in the articles warrant the
president's removal from office, which requires a 2/3 majority
vote. Indeed, given the nature of the ongoing investigation
into the Ukraine matter, President Trump has received
additional procedural protections. During closed door
depositions held by HPSCI and others related to the Ukraine
matter, minority members have been present and granted equal
time to question witnesses brought before the committees. This
is unlike the process in the preceding two presidential
impeachment inquiries, which relied significantly upon
information gathered by third-party investigators.'').
95. See Committee on Government Reform, Democratic Staff,
Congressional Oversight of the Clinton Administration (Jan. 17,
2006) (online at https://wayback.archive-it.org/4949/
20141031200116/http://oversight-archive.waxman.house.gov/
documents/20060117103516-91336.pdf) (explaining that when Rep.
Dan Burton served as Chairman of the Committee on Government
Reform, the Committee deposed 141 Clinton Administration
officials without agency counsel present--including White House
Chief of Staff Mack McLarty; White House Chief of Staff Erskine
Bowles; White House Counsel Bernard Nussbaum; White House
Counsel Jack Quinn; Deputy White House Counsel Bruce Lindsey;
Deputy White House Counsel Cheryl Mills; Deputy White House
Chief of Staff Harold Ickes; Chief of Staff to the Vice
President Roy Neel; and Chief of Staff to the First Lady
Margaret Williams).
96. Letter from Pat A. Cipollone, Counsel to the President,
The White House, to House Speaker Nancy Pelosi, Chairman Adam
B. Schiff, House Permanent Select Committee on Intelligence,
Chairman Eliot L. Engel, House Committee on Foreign Affairs,
and Chairman Elijah E. Cummings, Committee on Oversight and
Reform (Oct. 8, 2019) (online at www.whitehouse.gov/wp-content/
uploads/2019/10/PAC-Letter-10.08.2019.pdf). On November 1,
2019, after the House approved H. Res. 660, the Administration
continued to press this spurious claim, with the Office of
Legal Counsel issuing an opinion asserting that ``Congressional
committees participating in an impeachment inquiry may not
validly compel executive branch witnesses to testify about
matters that potentially involve information protected by
executive privilege without the assistance of agency counsel.''
Department of Justice, Office of Legal Counsel, Exclusion of
Agency Counsel from Congressional Depositions in the
Impeachment Context (Nov. 1, 2019) (online at www.justice.gov/
olc/file/1214996/download). As discussed in this section, this
position is entirely unsupported by judicial precedent and
erroneous.
97. U.S. Const., Art. I, sec. 5, cl. 2.
98. The regulations that govern House depositions state:
``Only members, Committee staff designated by the chair or
ranking minority member, an official reporter, the witness, and
the witness's counsel are permitted to attend. Observers or
counsel for other persons, including counsel for government
agencies, may not attend.'' 116th Congress Regulations for Use
of Deposition Authority, Congressional Record, H1216 (Jan. 25,
2019) (online at www.congress.gov/116/crec/2019/01/25/CREC-
2019-01-25-pt1-PgH1216-2.pdf).
99. Committee on Oversight and Reform, Committee
Depositions in the House of Representatives: Longstanding
Republican and Democratic Practice of Excluding Agency Counsel
(Nov. 5, 2019) (online at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/
Committee%20Depositions%20in%20
the%20House%20of%20RepresentativesLongstanding%20Republi-
can%20and%20Democratic%20Practice%20of%20Excluding%20A-
gency%20Counsel.pdf).house.gov/files/Committee%20Depositions%
20in%20the%20House%20of%20RepresentativesLongstanding%20
Republican%20and%20Democratic%20Practice%20of%20Excluding
%20Agency%20Counsel.pdf).
100. Letter from Pat A. Cipollone, Counsel to the
President, The White House, to House Speaker Nancy Pelosi,
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence, Chairman Eliot L. Engel, House Committee on
Foreign Affairs Committee, and Chairman Elijah E. Cummings,
House Committee on Oversight and Reform (Oct. 8, 2019) (online
at www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-
10.08.2019.pdf).
101. Barenblatt v. United States, 360 U.S. 109 (1959).
102. See, e.g., S. 2537 (requiring an investigation by the
State Department Inspector General into the withholding of aid
to Ukraine, directing the President to immediately obligate
previously appropriated funds, and authorizing funds to counter
Russian influence); H.R. 3047 (providing support to Ukraine to
defend its independence, sovereignty, and territorial
integrity).
103. In re Application of the Committee on the Judiciary,
United States House of Representatives, 2019 U.S. Dist. LEXIS
184857 (D.D.C. 2019), quoting Trump v. Mazars USA, LLP, 2019
U.S. App. LEXIS 30475 (D.D.C. 2019) (``Nothing `in the
Constitution or case law . . . compels Congress to abandon its
legislative role at the first scent of potential illegality and
confine itself exclusively to the impeachment process.''').
104. See, e.g., the 1974 Amendments to the Freedom of
Information Act, P.L. 93-502; Ethics in Government Act of 1978,
P.L. 95-52; Presidential Records Act of 1978, P.L. 95-591;
Federal Election Campaign Act Amendments of 1974, P.L. 93-443.
105. Letter from Pat A. Cipollone, Counsel to the
President, The White House, to House Speaker Nancy Pelosi,
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence, Chairman Eliot L. Engel, House Committee on
Foreign Affairs Committee, and Chairman Elijah E. Cummings,
House Committee on Oversight and Reform (Oct. 8, 2019) (online
at www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-
10.08.2019.pdf); Letter from Pat A. Cipollone, Counsel to the
President, The White House, to Acting Chairwoman Carolyn
Maloney, House Committee on Oversight and Reform, Chairman Adam
B. Schiff, House Permanent Select Committee on Intelligence
Chairman Eliot L. Engel, Chairman, House Committee on Foreign
Affairs (Oct. 18, 2019).
106. United States v. American Tel. & Tel. Co., 567 F.2d
121 (D.C. Cir. 1977) (``Rather, each branch should take
cognizance of an implicit constitutional mandate to seek
optimal accommodation through a realistic evaluation of the
needs of the conflicting branches in the particular fact
situation.'').
107. For example, on November 22, 2019, the Department of
State produced to a private party 99 pages of emails, letters,
notes, timelines, and news articles under a court order
pursuant to the Freedom of Information Act. State Department
Releases Ukraine Documents to American Oversight, American
Oversight (Nov. 22, 2019) (online at www.americanoversight.org/
state-department-releases-ukraine-documents-to-american-
oversight).
108. Even if the President were to make a colorable
assertion of executive privilege, which he has not, the Supreme
Court has held that the privilege is not absolute. In the
context of a grand jury subpoena, the Supreme Court found that
the President's ``generalized assertion of privilege must yield
to the demonstrated, specific need for evidence in a pending
criminal trial.'' United States v. Nixon, 418 U.S. 683 (1974).
Similarly, the D.C. Circuit has held that executive privilege
is a ``qualified'' privilege and that ``courts must balance the
public interests at stake in determining whether the privilege
should yield in a particular case, and must specifically
consider the need of the party seeking privileged evidence.''
In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). As described
above, Congress' need for information during an impeachment
inquiry is particularly ``compelling.'' In re Report &
Recommendation of June 5, 1972 Grand Jury Concerning
Transmission of Evidence to House of Representatives, 370 F.
Supp. 1219 (D.D.C. 1974) (``[I]t should not be forgotten that
we deal in a matter of the most critical moment to the Nation,
an impeachment investigation involving the President of the
United States. It would be difficult to conceive of a more
compelling need than that of this country for an unswervingly
fair inquiry based on all the pertinent information.'').
109. See, e.g., Letter from Pat A. Cipollone, Counsel to
the President, The White House, to William Pittard, Counsel to
Mick Mulvaney, Acting Chief of Staff, The White House (Nov. 8,
2019) (asserting that Acting Chief of Staff Mick Mulvaney ``is
absolutely immune from compelled congressional testimony with
respect to matters related to his service as a senior advisor
to the President'' and that ``[s]ubjecting a senior
presidential advisor to the congressional subpoena power would
be akin to requiring the President himself to appear before
Congress on matters relating to the performance of his
constitutionally assigned executive functions'').
110. Committee on the Judiciary v. Miers, 558 F. Supp. 2d
53 (D.D.C. 2008) (``The Executive cannot identify a single
judicial opinion that recognizes absolute immunity for senior
presidential advisors in this or any other context. That simple
yet critical fact bears repeating: the asserted absolute
immunity claim here is entirely unsupported by existing case
law. In fact, there is Supreme Court authority that is all but
conclusive on this question and that powerfully suggests that
such advisors do not enjoy absolute immunity. The Court
therefore rejects the Executive's claim of absolute immunity
for senior presidential aides.'').
111. Committee on the Judiciary v. McGahn, Case No. 1:19-
cv-02379, Memorandum Opinion, Doc. No. 46 (D.D.C. Nov. 25,
2019). As of this report, an appeal is pending in the U.S.
Court of Appeals for the D.C. Circuit. No. 19-5331 (D.C. Cir.).
112. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Pat A.
Cipollone, Counsel to the President, The White House (Sept. 9,
2019) (online at https://intelligence.house.gov/uploadedfiles/
ele_schiff_cummings_letter_to_cipollone_on_ukraine.pdf).
113. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Pat A.
Cipollone, Counsel to the President, The White House (Sept. 24,
2019) (online at https://intelligence.house.gov/uploadedfiles/
2019-09-24.eec_engel_schiff_to_cipollone-
wh_re_potus_ukraine.pdf).
114. Letter from Chairman Elijah E. Cummings, House
Committee on Oversight and Reform, Chairman Adam B. Schiff,
House Permanent Select Committee on Intelligence, and Chairman
Eliot L. Engel, House Committee on Foreign Affairs, to Pat A.
Cipollone, Counsel to the President, The White House (Oct. 4,
2019) (online at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2019-10-
04.EEC%20Engel%20Schiff%20to-%20Mulvaney-
WH%20re%20Subpoena.pdf).
115. Letter from Pat A. Cipollone, Counsel to the
President, The White House, to Acting Chairwoman Carolyn B.
Maloney, House Committee on Oversight and Reform, Chairman Adam
B. Schiff, House Permanent Select Committee on Intelligence,
and Chairman Eliot L. Engel, House Committee on Foreign
Affairs, (Oct. 18, 2019).
116. Email from Bureau of Legislative Affairs, Department
of State, to Committee Staff (Oct. 2, 2019).
117. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Pat A.
Cipollone, Counsel to the President, The White House (Sept. 9,
2019) (online at https://intelligence.house.gov/uploadedfiles/
ele_schiff_cummings_letter_to_cipollone_on_ukraine.pdf).
118. Id.
119. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Pat A.
Cipollone, Counsel to the President, The White House (Sept. 24,
2019).
120. Memorandum from Chairman Elijah E. Cummings to Members
of the House Committee on Oversight and Reform, Notice of
Intent to Issue Subpoenas (Oct. 2, 2019) (online at https://
oversight.house.gov/sites/democrats.oversight.house.gov/files/
documents/2019-10-02.COR%20WH%20Subpoena%20Memo%20-
and%20Schedule.pdf).
121. Letter from Chairman Elijah E. Cummings, House
Committee on Oversight and Reform, Chairman Adam B. Schiff,
House Permanent Select Committee on Intelligence, and Chairman
Eliot L. Engel, House Committee on Foreign Affairs, to Pat A.
Cipollone, Counsel to the President, The White House (Oct. 4,
2019) (online at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2019-10-
04.EEC%20Engel%20-Schiff%20to%20Mulvaney-
WH%20re%20Subpoena.pdf).
122. Letter from Pat A. Cipollone, Counsel to the
President, The White House, to Speaker Nancy Pelosi, Chairman
Adam B. Schiff, House Permanent Select Committee on
Intelligence, Chairman Eliot L. Engel, House Committee on
Foreign Affairs, and Chairman Elijah E. Cummings, House
Committee on Oversight and Reform (Oct. 8, 2019) (online at
www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-
10.08.2019.pdf).
123. Letter from Pat A. Cipollone, Counsel to the
President, The White House, to Acting Chairwoman Carolyn B.
Maloney, House Committee on Oversight and Reform, Chairman Adam
B. Schiff, House Permanent Select Committee on Intelligence,
and Chairman Eliot L. Engel, House Committee on Foreign Affairs
(Oct. 18, 2019).
124. On September 13, the Intelligence Committee issued a
subpoena pursuant to its oversight authority to the Acting
Director of National Intelligence to compel the production of a
complaint submitted by an Intelligence Community whistleblower,
as well as other records. The Intelligence Committee issued
this subpoena before Speaker Pelosi announced on September 24
that the Intelligence Committee and other committees would be
continuing their work under the umbrella of the impeachment
inquiry being conducted by the Judiciary Committee. As a
result, this subpoena should not be conflated with subpoenas
issued as part of the impeachment inquiry. See Letter from
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence, to Joseph Maguire, Acting Director of National
Intelligence, Office of the Director of National Intelligence
(Sept. 13, 2019).
125. The White House, Memorandum of Telephone Conversation
(Apr. 21, 2019) (online at http://cdn.cnn.com/cnn/2019/images/
11/15/4-21-19.trump-zelensky.call.pdf); The White House,
Memorandum of Telephone Conversation (July 25, 2019) (online at
www.whitehouse.gov/wp-content/uploads/2019/09/
Unclassified09.2019.pdf).
126. Vindman-Williams Hearing Tr. at 31-32.
127. Vindman Dep. Tr. at 53; Morrison Dep. Tr. at 19-20.
128. Vindman Dep. Tr. at 186-187; Morrison Dep. Tr. at 166-
167.
129. See, e.g., Cooper Dep. Tr. at 42-43.
130. Sondland Hearing Tr. at 78-79.
131. Vindman Dep. Tr. at 36-37.
132. Holmes Dep. Tr. at 31.
133. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong. (Nov. 20, 2019).
134. The review reportedly uncovered ``early August email
exchanges between acting chief of staff Mick Mulvaney and White
House budget officials seeking to provide an explanation for
withholding the funds after the president had already ordered a
hold in mid-July on the nearly $400 million in security
assistance.'' The review also reportedly included interviews
with ``some key White House officials involved in handling
Ukraine aid and dealing with complaints and concerns in the
aftermath of the call between Trump and Zelensky.'' White House
Review Turns Up Emails Showing Extensive Effort to Justify
Trumps Decision to Block Ukraine Military Aid, Washington Post
(Nov. 24, 2019) (online at www.washingtonpost.com/politics/
white-house-review-turns-up-emails-showing-extensive-effort-to-
justify-trumps-decision-to-block-ukraine-military-aid/2019/11/
24/2121cf98-0d57-11ea-bd9d-c628fd48b3a0_story.html).
135. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Vice
President Michael R. Pence (Oct. 4, 2019) (online at https://
oversight.house.gov/sites/democrats.oversight.house.gov/files/
documents/2019-10-04.EEC%20Engel%20Schiff%20%20re%20Request-
%20to%20VP%2010-04-19%20Letter%20and%20Schedule.pdf).
136. Id.
137. Letter from Matthew E. Morgan, Counsel to the Vice
President, Office of the Vice President, to Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, Chairman
Eliot L. Engel, House Committee on Foreign Affairs, and
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence (Oct. 15, 2019).
138. Vindman-Williams Hearing Tr. at 61.
139. Williams Dep. Tr. at 129.
140. Vindman-Williams Hearing Tr. at 15.
141. Id. at 23-24.
142. Williams Dep. Tr. at 74-75.
143. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Eliot L. Engel,
House Committee on Foreign Affairs, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Acting
Director Russell T. Vought, Office of Management and Budget
(Oct. 7, 2019) (online at https://intelligence.house.gov/
uploadedfiles/2019-10-
07.eec_engel_schiff_to_vought_omb_re_subpoena.pdf).
144. Id.
145. Letter from Jason Yaworske, Associate Director for
Legislative Affairs, Office of Management and Budget, to
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence (Oct. 15, 2019).
146. Sandy Dep. Tr. at 23-26.
147. Id. at 36-41.
148. Id. at 57-60, 62-63.
149. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 9, 2019) (online
at https://intelligence.house.gov/uploadedfiles/
ele_schiff_cummings_letter_to_sec_pompeo_on_ukraine.pdf).
150. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 23, 2019).
151. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 27, 2019) (online
at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2019-09-
27.EEC%20Engel%20Schiff%20%20to%20Pompeo-
%20State%20re%20Document%20Subpoena.pdf).
152. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Elijah E. Cummings,
House Committee on Oversight and Reform, and Chairman Eliot L.
Engel, House Committee on Foreign Affairs, to Ambassador Gordon
Sondland, Department of State (Oct. 8, 2019) (online at https:/
/oversight.house.gov/sites/democrats.oversight.house.gov/files/
documents/2019-10-08.EEC%20Engel%20Schiff%20to%20Sondland%20-
re%20Subpoena.pdf); Letter from Chairman Eliot L. Engel, House
Committee on Foreign Affairs, Chairman Adam B. Schiff, House
Permanent Select Committee on Intelligence, and Chairman Elijah
E. Cummings, House Committee on Oversight and Reform, to
Ambassador William Taylor, Department of State (Oct. 4, 2019);
Letter from Chairman Eliot L. Engel, House Committee on Foreign
Affairs, Chairman Adam B. Schiff, House Permanent Select
Committee on Intelligence, and Chairman Elijah E. Cummings,
House Committee on Oversight and Reform, to Counselor T. Ulrich
Brechbuhl, Department of State (Sept. 27, 2019) (online at
https://intelligence.house.gov/uploadedfiles/
20190927_eec_engel_schiff_to_
brechbuhl_re_individual_deposition_request.pdf); Letter from
Chairman Eliot L. Engel, House Committee on Foreign Affairs,
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence, and Chairman Elijah E. Cummings, House Committee
on Oversight and Reform, to Deputy Assistant Secretary George
P. Kent, Department of State (Sept. 27, 2019); Letter from
Chairman Eliot L. Engel, House Committee on Foreign Affairs,
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence, and Chairman Elijah E. Cummings, House Committee
on Oversight and Reform, to Ambassador Kurt Volker, Department
of State (Sept. 27, 2019); Letter from Chairman Eliot L. Engel,
House Committee on Foreign Affairs, Chairman Adam B. Schiff,
House Permanent Select Committee on Intelligence, and Chairman
Elijah E. Cummings, House Committee on Oversight and Reform, to
Ambassador Marie Yovanovitch, Department of State (Sept. 27,
2019).
153. Letter from Secretary Michael R. Pompeo, Department of
State, to Chairman Eliot L. Engel, House Committee on Foreign
Affairs (Oct. 1, 2019) (Secretary Pompeo sent identical letters
to Chairman Elijah. E. Cummings, House Committee on Oversight
and Reform, and Chairman Adam B. Schiff, House Permanent Select
Committee on Intelligence, the same day).
154. Id.
155. Kent Dep. Tr. at 27.
156. Id. at 33-34.
157. Id. at 34-35.
158. Letter from Secretary Michael R. Pompeo, Department of
State, to Chairman Eliot L. Engel, House Committee on Foreign
Affairs (Oct. 1, 2019) (Secretary Pompeo sent identical letters
to Chairman Elijah. E. Cummings, House Committee on Oversight
and Reform, and Chairman Adam B. Schiff, House Permanent Select
Committee on Intelligence, the same day).
159. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Deputy
Secretary John J. Sullivan, Department of State (Oct. 1, 2019)
(online at https://foreignaffairs.house.gov/_cache/files/4/6/
4683bc86-be2a-49fc-9e76-7cdbf669592f/98BEBD8006DE62BA36BE-
BD175775F744.2019-10-1-ele-abs-eec-to-depsec-sullivan.pdf).
160. Pompeo: `I Was on the Phone Call with Trump and
Ukrainian President, CNN (Oct. 2, 2019) (online at www.cnn.com/
2019/10/02/politics/mike-pompeo-ukraine-call/index.html).
161. Email from Committee Staff to Bureau of Legislative
Affairs, Department of State (Oct. 7, 2019).
162. Letter from Brian Bulatao, Under Secretary of State
for Management, Department of State, to Andrew Wright, Counsel
to Deputy Assistant Secretary George P. Kent, Department of
State (Oct. 14, 2019).
163. Kent Dep. Tr. at 30-31, 46.
164. Id. at 32.
165. Id. at 35.
166. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong. (Nov. 20, 2019).
167. Id.
168. Id. In addition, Dr. Fiona Hill, the former Senior
Director for Europe and Russia at the National Security
Council, produced calendar entries relating to relevant
meetings. Fiona Hill Document Production, Bates Hill0001-
Hill0049 (Oct. 13, 2019).
169. Kurt Volker Document Production, Bates KV00000001-
KV00000065 (Oct. 2, 2019).
170. 18 U.S.C. Sec. 1505.
171. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong., at 3-4 (Nov. 20, 2019).
172. Sondland Hearing Tr. at 160.
173. Declaration of Ambassador Gordon Sondland, Department
of State, at 3 (Nov. 4, 2019).
174. State Department Releases Ukraine Documents to
American Oversight, American Oversight (Nov. 22, 2019) (online
at www.americanoversight.org/state-department-releases-ukraine-
documents-to-american-oversight); American Oversight v. Dep't
of State, Case No. 19-cv-2934, Doc. No. 15 (D.D.C. November 25,
2019).
175. Email from Office Manager to the Secretary of State to
S_All (Mar. 26, 2019) (online at www.americanoversight.org/wp-
content/uploads/2019/11/AO_State_Ukraine_Docs_11-22.pdf).
176. Email from Madeleine Westerhout to State Department
Official, (Mar. 27, 2019) (online at www.americanoversight.org/
wp-content/uploads/2019/11/AO_State_Ukraine_Docs_11-22.pdf).
177. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 27, 2019) (online
at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2019-09-
27.EEC%20Engel%20Schiff%20%20to%20Pompeo-
%20State%20re%20Document%20Subpoena.pdf).
178. Taylor Dep. Tr. at 33-34.
179. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong., at 20-23 (Nov. 20, 2019).
180. Taylor Dep. Tr. at 45-46.
181. Hale Dep. Tr. at 147-148.
182. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Eliot L. Engel,
House Committee on Foreign Affairs, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Mark Esper, Department of Defense (Oct. 7, 2019) (online at
https://intelligence.house.gov/uploadedfiles/2019-10-
07.eec_engel_schiff_to_esper-dod_re_subpoena.pdf).
183. Transcript: Secretary of Defense Mark Esper on ``Face
the Nation,'' October 13, 2019, CBS News (Oct. 13, 2019)
(online at www.cbsnews.com/news/transcript-secretary-of-
defense-mark-esper-on-face-the-nation-october-13-2019/).
184. Letter from Robert R. Hood, Assistant Secretary of
Defense for Legislative Affairs, Department of Defense, to
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence, Chairman Eliot L. Engel, House Committee on
Foreign Affairs, and Chairman Elijah E. Cummings, House
Committee on Oversight and Reform (Oct. 15, 2019).
185. Transcript: Secretary of Defense Mark Esper on ``Face
the Nation,'' October 13, 2019, CBS News (Oct. 13, 2019)
(online at www.cbsnews.com/news/transcript-secretary-of-
defense-mark-esper-on-face-the-nation-october-13-2019/).
186. See, e.g., Cooper Dep. Tr. at 42-43.
187. Id. at 33.
188. Id. at 33-38.
189. Cooper Hearing Tr. at 13-14.
190. Id. at 14.
191. Id.
192. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Rick Perry, Department of Energy (Oct. 10, 2019) (online at
https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2019-10-
10.EEC%20Engel%20Schiff%20to%20Perry-
DOE%20Joint%20Cover%20Letter%20re%20Subpoena.pdf).
193. Letter from Melissa F. Burnison, Assistant Secretary
for Congressional and Intergovernmental Affairs, Department of
Energy, to Chairman Eliot L. Engel, House Committee on Foreign
Affairs, Chairman Adam B. Schiff, House Permanent Select
Committee on Intelligence, and Chairman Elijah E. Cummings,
House Committee on Oversight and Reform (Oct. 18, 2019).
194. Hill-Holmes Hearing Tr. at 160.
195. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong. (Nov. 20, 2019).
196. House Permanent Select Committee on Intelligence,
Opening Statement of Ambassador Gordon Sondland, Department of
State, Impeachment, 116th Cong. (Nov. 20, 2019).
197. Letter from Chairman Chairman Adam B. Schiff, House
Permanent Select Committee on Intelligence, Eliot L. Engel,
House Committee on Foreign Affairs, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Rudy
Giuliani (Sept. 30, 2019) (online at https://
oversighthouse.gov/sites/democrats.oversight house.gov/files/
documents/20190930%20-
%20Giuliani%20HPSCI%20Subpoena%20Letter.pdf).
198. Letter from Jon A. Sale, Counsel to Rudy Giuliani, to
Committee Staff (Oct. 15, 2019).
199. Id.
200. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Eliot L. Engel,
House Committee on Foreign Affairs, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Igor
Fruman (Sept. 30, 2019) (online at https://oversight.house.gov/
sites/democrats.oversight.house.gov/files/documents/
20190930%20-%20Fru-
man%20Letter%20and%20Doc%20Request%20Schedule.pdf); Letter from
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence, Chairman Eliot L. Engel, House Committee on
Foreign Affairs, and Chairman Elijah E. Cummings, House
Committee on Oversight and Reform, to Lev Parnas (Sept. 30,
2019) (online at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/20190930%20-
%20Par- nas%20Letter%20and%20Doc%20Request%20Schedule.pdf).
201. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Eliot L. Engel,
House Committee on Foreign Affairs, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to John M.
Dowd, Counsel to Igor Fruman and Lev Parnas (Oct. 10, 2019)
(online at https://intelligence.house.gov/uploadedfiles/2019-
10-09.eec_engel_schiff_to_parnas_fruman_re_subpoena.pdf).
202. Letter from John M. Dowd, Counsel to Igor Fruman and
Lev Parnas, to Committee Staff (Oct. 3, 2019).
203. Letter from John M. Dowd, Counsel to Igor Fruman and
Lev Parnas, to Committee Staff (Oct. 8, 2019).
204. Email from John M. Dowd, Counsel to Igor Fruman and
Lev Parnas, to Committee Staff (Oct. 9, 2019).
205. Email from Committee Staff to John M. Dowd, Counsel to
Igor Fruman and Lev Parnas (Oct. 10, 2019).
206. Email from John M. Dowd, Counsel to Igor Fruman and
Lev Parnas, to Committee Staff (Oct. 10, 2019).
207. Exclusive: Giuliani Associate Parnas Will Comply with
Trump Impeachment Inquiry--Lawyer, Reuters (Nov. 4, 2019)
(online at www.reuters.com/article/us-usa-trump-impeachment-
parnas-exclusiv/exclusive-giuliani-associate-now-willing-to-
comply-with-trump-impeachment-inquiry-lawyer-idUSKBN1XE297). On
November 23, 2019, Mr. Parnas' attorney informed the press that
``Mr. Parnas learned from former Ukrainian Prosecutor General
Victor Shokin that [Ranking Member Devin] Nunes had met with
Shokin in Vienna last December.'' According to the report,
``Parnas says he worked to put Nunes in touch with Ukrainians
who could help Nunes dig up dirt on Biden and Democrats in
Ukraine, according to Bondy.'' Exclusive: Giuliani Associate
Willing to Tell Congress Nunes Met with Ex-Ukrainian Official
to Get Dirt on Biden, CNN (Nov. 23, 2019) (online at
www.cnn.com/2019/11/22/politics/nunes-vienna-trip-ukrainian-
prosecutor-biden/index.html). On November 24, 2019, Mr. Parnas'
attorney told press that his client had arranged skype and
phone calls earlier this year between Ranking Member Nunes'
staff and Ukraine's chief anti-corruption prosecutor, Nazar
Kholodnytsky, as well as a deputy in Ukraine's Prosecutor
General's office, Kostantyn Kulyk. According to Mr. Parnas'
attorney, Ranking Member Nunes had actually planned a trip to
Ukraine instead of the calls, but cancelled the trip when his
staff realized it would require alerting Chairman Schiff about
the travel. Giuliani Associate Parnas Wants to Testify that
Nunes Aides Hid Ukraine Meetings on Biden Dirt from Schiff,
CNBC (Nov. 24, 2019) (online at www.cnbc.com/2019/11/24/
giuliani-ally-would-testify-that-nunes-staffers-hid-ukraine-
meetings-from-schiff.html).
208. Letter from Pat A. Cipollone, Counsel to the
President, The White House, to House Speaker Nancy Pelosi,
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence, Chairman Eliot L. Engel, House Committee on
Foreign Affairs Committee, and Chairman Elijah E. Cummings,
House Committee on Oversight and Reform (Oct. 8, 2019) (online
at www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-
10.08.2019.pdf).
209. See 2 U.S.C. Sec. Sec. 192, 194. Witnesses who
received subpoenas that were subsequently withdrawn would not
face a similar risk of being held in contempt of Congress.
210. See, e.g., Email from Committee Staff to Mick
Mulvaney, Acting Chief of Staff, The White House (Nov. 7, 2019)
(``Your failure or refusal to comply with the subpoena,
including at the direction or behest of the President, shall
constitute further evidence of obstruction of the House's
impeachment inquiry and may be used as an adverse inference
against you and the President. Moreover, your failure to appear
shall constitute evidence that may be used against you in a
contempt proceeding.'').
211. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, Mick
Mulvaney, Acting Chief of Staff, The White House (Nov. 5, 2019)
(online at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/2019-11-
05.CBM%20Engel%20Schiff%20to%20Mulvaney-
WH%20re%20Depo%20Notice.pdf).
212. House Permanent Select Committee on Intelligence,
Subpoena to Mick Mulvaney, Acting Chief of Staff, The White
House (Nov. 7, 2019).
213. Email from William Pittard, Counsel to Mick Mulvaney,
Acting Chief of Staff, The White House, to Committee Staff
(Nov. 8, 2019).
214. Letter from Pat A. Cipollone, Counsel to the
President, The White House, to William Pittard, Counsel to Mick
Mulvaney, Acting Chief of Staff, The White House (Nov. 8, 2019)
(online at www.whitehouse.gov/wp-content/uploads/2019/10/PAC-
Letter-10.08.2019.pdf).
215. Letter from Steven A. Engel, Assistant Attorney
General, Office of Legal Counsel, Department of Justice, to Pat
A. Cipollone, Counsel to the President, The White House (Nov.
7, 2019).
216. Mulvaney Dep. Tr. at 5.
217. Id. at 7-9.
218. On November 8, 2019, Mr. Mulvaney filed a motion in
federal court seeking to join a lawsuit, discussed below, filed
by Dr. Charles Kupperman seeking a declaratory judgment as to
whether he should comply with the Committees' subpoena. On
November 11, 2019, Mr. Mulvaney withdrew his request to join
the case. White House Chief of Staff Mulvaney Drops Bid to Join
Kupperman Impeachment Lawsuit, Washington Post (Nov. 11, 2019)
(online at www.washingtonpost.com/local/legal-issues/bolton-
and-kupperman-reject-white-house-chief-of-staff-mulvaneys-bid-
to-join-impeachment-lawsuit/2019/11/11/cdf40226-04ac-11ea-8292-
c46ee8cb3dce_story.html).
219. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to Robert
B. Blair, Assistant to the President and Senior Advisor to the
Chief of Staff, The White House (Oct. 24, 2019).
220. Letter from Whitney C. Ellerman, Counsel to Robert B.
Blair, Assistant to the President and Senior Advisor to the
Chief of Staff, The White House, to Chairman Eliot L. Engel,
House Committee on Foreign Affairs, Chairman Adam B. Schiff,
House Permanent Select Committee on Intelligence, and Acting
Chairwoman Carolyn B. Maloney, House Committee on Oversight and
Reform (Nov. 2, 2019).
221. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Acting Chairwoman Carolyn B.
Maloney, House Committee on Oversight and Reform, and Chairman
Eliot L. Engel, House Committee on Foreign Affairs, to Whitney
C. Ellerman, Counsel to Robert B. Blair, Assistant to the
President and Senior Advisor to the Chief of Staff, The White
House (Nov. 3, 2019); House Permanent Select Committee on
Intelligence, Subpoena to Robert B. Blair, Assistant to the
President and Senior Advisor to the Chief of Staff, The White
House (Nov. 3, 2019).
222. Blair Dep. Tr. at 6-7.
223. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to Charles
J. Cooper and Michael W. Kirk, Counsel to Ambassador John
Bolton, Former National Security Advisor, The White House (Oct.
30, 2019).
224. Email from Charles J. Cooper, Counsel to Ambassador
John Bolton, Former National Security Advisor, The White House,
to Committee Staff (Oct. 30, 2019).
225. Letter from Charles J. Cooper, Counsel to Ambassador
John Bolton, Former National Security Advisor, The White House,
to Douglas N. Letter, General Counsel, House of Representatives
(Nov. 8, 2019).
226. In early November 2019, Ambassador Bolton's personal
attorney also informed Committee staff that if the Committees
were to issue a subpoena to compel his testimony, he would seek
to join the lawsuit filed by Dr. Kupperman. On November 24,
2019, Chairman Schiff stated, ``We've certainly been in touch
with his lawyer and what we've been informed by his lawyer--
because we invited him and he did not choose to come in and
testify, notwithstanding the fact that his deputy Fiona Hill
and his other deputy Colonel Vindman and Tim Morrison and
others on the National Security Council have shown the courage
to come in--is if we subpoena him, they will sue us in court.''
Schiff Pushes Bolton to Testify But Will Not Go to Court to
Force Him, CNN (Nov. 24, 2019) (online at www.cnn.com/2019/11/
24/politics/adam-schiff-house-democrats-impeachment-state-of-
the-union-cnntv/index.html).
227. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to John A.
Eisenberg, Deputy Counsel to the President for National
Security Affairs and Legal Advisor to the National Security
Council, National Security Council, The White House (Oct. 30,
2019).
228. Eisenberg Dep. Tr. at 6 (``Mr. Eisenberg never
acknowledged receipt or otherwise responded to the committees'
deposition request, nor did any official at the White
House.'').
229. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to John A.
Eisenberg, Deputy Counsel to the President for National
Security Affairs and Legal Advisor to the National Security
Council, National Security Council, The White House (Nov. 1,
2019); House Permanent Select Committee on Intelligence,
Subpoena to John A. Eisenberg, Deputy Counsel to the President
for National Security Affairs and Legal Advisor to the National
Security Council, The White House (Nov. 1, 2019).
230. Letter from William A. Burck, Counsel to John A.
Eisenberg, Deputy Counsel to the President for National
Security Affairs and Legal Advisor to the National Security
Council, National Security Council, The White House, to
Chairman Eliot L. Engel, House Committee on Foreign Affairs,
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence, and Acting Chairwoman Carolyn B. Maloney, House
Committee on Oversight and Reform (Nov. 4, 2019).
231. Letter from Pat A. Cipollone, Counsel to the
President, The White House, to William A. Burck, Counsel to
John A. Eisenberg, Deputy Counsel to the President for National
Security Affairs and Legal Advisor to the National Security
Council, National Security Council, The White House (Nov. 3,
2019).
232. Letter from Steven A. Engel, Assistant Attorney
General, Office of Legal Counsel, Department of Justice, to Pat
A. Cipollone, Counsel to the President, the White House (Nov.
3, 2019).
233.Eisenberg Dep. Tr. at 6-8.
234.Letter from Chairman Eliot L. Engel, House Committee on
Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to Michael
Ellis, Senior Associate Counsel to the President and Deputy
Legal Advisor to the National Security Council, National
Security Council, The White House (Oct. 30, 2019).
235.Email from Paul Butler, Counsel to Michael Ellis,
Senior Associate Counsel to the President and Deputy Legal
Advisor to the National Security Council, National Security
Council, The White House, to Committee Staff (Nov. 2, 2019).
236.Email from Paul Butler, Counsel to Michael Ellis,
Senior Associate Counsel to the President and Deputy Legal
Advisor to the National Security Council, National Security
Council, The White House, to Committee Staff (Nov. 3, 2019).
237.Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Acting Chairwoman Carolyn B.
Maloney, House Committee on Oversight and Reform, Chairman
Eliot L. Engel, House Committee on Foreign Affairs, to Paul W.
Butler, Counsel to Michael Ellis, Senior Associate Counsel to
the President and Deputy Legal Advisor to the National Security
Council, National Security Council, The White House (Nov. 3,
2019); House Permanent Select Committee on Intelligence,
Subpoena to Michael Ellis, Senior Associate Counsel to the
President and Deputy Legal Advisor to the National Security
Council, National Security Council, The White House (Nov. 3,
2019).
238. Ellis Dep. Tr. at 7.
239. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to Preston
Wells Griffith, Senior Director for International Energy and
Environment, National Security Council (Oct. 24, 2019).
240. Letter from Karen D. Williams, Counsel to Preston
Wells Griffith, Senior Director for International Energy and
Environment, National Security Council, to Chairman Eliot L.
Engel, House Committee on Foreign Affairs, Chairman Adam B.
Schiff, House Permanent Select Committee on Intelligence, and
Acting Chairwoman Carolyn B. Maloney, House Committee on
Oversight and Reform (Nov. 4, 2019).
241. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Acting Chairwoman Carolyn B.
Maloney, House Committee on Oversight and Reform, and Chairman
Eliot L. Engel, House Committee on Foreign Affairs, to Karen D.
Williams, Counsel to Preston Wells Griffith, Senior Director
for International Energy and Environment, National Security
Council (Nov. 4, 2019); House Permanent Select Committee on
Intelligence, Subpoena to Preston Wells Griffith, Senior
Director for International Energy and Environment, National
Security Council (Nov. 4, 2019).
242. Griffith Dep. Tr. at 5-6.
243. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Dr.
Charles M. Kupperman, Former Deputy Assistant to the President
for National Security Affairs, National Security Council (Oct.
16, 2019).
244. Email from Committee Staff to Charles J. Cooper and
Michael W. Kirk, Counsel to Dr. Charles M. Kupperman, Former
Deputy Assistant to the President for National Security
Affairs, National Security Council (Oct. 25, 2019); House
Permanent Select Committee on Intelligence, Subpoena to Dr.
Charles M. Kupperman, Former Deputy Assistant to the President
for National Security Affairs, National Security Council (Oct.
25, 2019).
245. Compl., Kupperman v. U.S. House of Representatives et
al., No. 19 Civ. 3224 (D.D.C. filed Oct. 25, 2019).
246. Email from Michael W. Kirk, Counsel to Dr. Charles M.
Kupperman, Former Deputy Assistant to the President for
National Security Affairs, National Security Council, to
Committee Staff (Oct. 25, 2019).
247. Letter from Pat A. Cipollone, Counsel to the
President, The White House, to Charles J. Cooper, Counsel to
Dr. Charles M. Kupperman, Former Deputy Assistant to the
President for National Security Affairs, National Security
Council (Oct. 25, 2019).
248. Letter from Steven A. Engel, Assistant Attorney
General, Office of Legal Counsel, Department of Justice, to Pat
A. Cipollone, Counsel to the President, The White House (Oct.
25, 2019).
249. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Eliot L. Engel,
House Committee on Foreign Affairs, and Acting Chairwoman
Carolyn B. Maloney, House Committee on Oversight and Reform, to
Charles J. Cooper and Michael W. Kirk, Counsel to Dr. Charles
M. Kupperman, Former Deputy Assistant to the President for
National Security Affairs, National Security Council (Oct. 26,
2019).
250. Letter from Charles J. Cooper, Counsel to Dr. Charles
M. Kupperman, Former Deputy Assistant to the President for
National Security Affairs, National Security Council, to
Committee Staff (Oct. 26, 2019).
251. Letter from Charles J. Cooper, Counsel to Dr. Charles
M. Kupperman, Former Deputy Assistant to the President for
National Security Affairs, National Security Council, to
Committee Staff (Oct. 27, 2019).
252. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform to Charles
J. Cooper and Michael W. Kirk, Counsel to Dr. Charles M.
Kupperman, Former Deputy Assistant to the President for
National Security Affairs, National Security Council, (Nov. 5,
2019).
253. Letter from Charles J. Cooper, Counsel to Dr. Charles
M. Kupperman, Former Deputy Assistant to the President for
National Security Affairs, National Security Council, to
Douglas N. Letter, General Counsel, House of Representatives
(Nov. 8, 2019).
254. Committee on the Judiciary v. McGahn, Memorandum
Opinion (D.D.C. Nov. 25, 2019) (``To make the point as plain as
possible, it is clear to this Court for the reasons explained
above that, with respect to senior-level presidential aides,
absolute immunity from compelled congressional process simply
does not exist. Indeed, absolute testimonial immunity for
senior-level White House aides appears to be a fiction that has
been fastidiously maintained over time through the force of
sheer repetition in OLC opinions, and through accommodations
that have permitted its proponents to avoid having the
proposition tested in the crucible of litigation. And because
the contention that a President's top advisors cannot be
subjected to compulsory congressional process simply has no
basis in the law, it does not matter whether such immunity
would theoretically be available to only a handful of
presidential aides due to the sensitivity of their positions,
or to the entire Executive branch. Nor does it make any
difference whether the aides in question are privy to national
security matters, or work solely on domestic issues.''). As of
this report, an appeal is pending in the D.C. Circuit. No. 19-
5331 (D.C. Cir.).
255. See Kupperman v. U.S. House of Representatives, et
al., No. 19 Civ. 3224 (D.D.C.). As of this report, the House
Defendants' Motion to Dismiss (Nov. 14, 2019), ECF No. 41,
remains pending. Although the Committee will not reissue the
subpoena to Dr. Kupperman and the court case is moot, he could
choose to appear on a voluntary basis to assist Congress in the
discharge of its Constitutional responsibilities.
256. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Acting
Director Russell T. Vought, Office of Management and Budget
(Oct. 11, 2019).
257. Email from Jessica L. Donlon, Deputy General Counsel
for Oversight, Office of Management and Budget, to Committee
Staff (Oct. 21, 2019).
258. Russell T. Vought, Twitter (Oct. 21, 2019) (online at
https://twitter.com/RussVought45/status/1186276793-
172578306?s=20).
259. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to Acting
Director Russell T. Vought, Office of Management and Budget
(Oct. 25, 2019).
260. Letter from Jason A. Yaworske, Associate Director for
Legislative Affairs, Office of Management and Budget, to
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence (Nov. 4, 2019).
261. Vought Dep. Tr. at 10-11.
262. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Associate
Director Michael Duffey, Office of Management and Budget (Oct.
11, 2019).
263. Email from Jessica L. Donlon, Deputy General Counsel
for Oversight, Office of Management and Budget, to Committee
Staff (Oct. 21, 2019).
264. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to Michael
Duffey, Associate Director of National Security Programs,
Office of Management and Budget (Oct. 25, 2019) (online at
https://intelligence.house.gov/uploadedfiles/20191025_-
_letter_duffey_re_subpoena.pdf); House Permanent Select
Committee on Intelligence, Subpoena to Michael Duffey,
Associate Director of National Security Programs, Office of
Management and Budget (Oct. 25, 2019).
265. Letter from Jason A. Yaworske, Associate Director for
Legislative Affairs, Office of Management and Budget, to
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence (Nov. 4, 2019).
266. Duffey Dep. Tr. at 7.
267. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to Brian
McCormack, Associate Director for Natural Resources, Energy,
and Science, Office of Management and Budget (Oct. 24, 2019).
268. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to Brian
McCormack, Associate Director for Natural Resources, Energy,
and Science, Office of Management and Budget (Nov. 1, 2019);
House Permanent Select Committee on Intelligence, Subpoena to
Brian McCormack, Associate Director for Natural Resources,
Energy, and Science, Office of Management and Budget (Nov. 1,
2019).
269. Letter from Jason A. Yaworske, Associate Director for
Legislative Affairs, Office of Management and Budget, to
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence (Nov. 4, 2019).
270. McCormack Dep. Tr. at 6.
271. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 13, 2019).
272. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 27, 2019)
(internal citations omitted) (online at https://
oversight.house.gov/sites/democrats.oversight.house.gov/files/
documents/2019-09-27.EEC%20-
Engel%20Schiff%20%20to%20Pompeo%20State%20re%20Deposi-
tions.pdf).
273. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to T. Ulrich
Brechbuhl, Counselor, Department of State (Sept. 27, 2019).
274. Letter from Secretary Michael R. Pompeo, Department of
State, to Chairman Eliot L. Engel, House Committee on Foreign
Affairs (Oct. 1, 2019) (Secretary Pompeo sent identical letters
to Chairman Elijah. E. Cummings, House Committee on Oversight
and Reform, and Chairman Adam B. Schiff, House Permanent Select
Committee on Intelligence, the same day).
275. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Deputy
Secretary of State John J. Sullivan, Department of State (Oct.
1, 2019) (online at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2019-10-
01%20ELE%20-ABS%20EEC%20TO%20-DEPSEC%20SULLIVAN.pdf).
276. Email from Ronald J. Tenpas, Counsel to T. Ulrich
Brechbuhl, Counselor, Department of State, to Committee Staff
(Oct. 2, 2019).
277. Email from Committee Staff, to Ronald J. Tenpas,
Counsel to T. Ulrich Brechbuhl, Counselor, Department of State
(Oct. 8, 2019).
278. Email from Committee Staff, to Ronald J. Tenpas,
Counsel to T. Ulrich Brechbuhl, Counselor, Department of State
(Oct. 9, 2019).
280. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to T.
Ulrich Brechbuhl, Counselor, Department of State (Oct. 25,
2019); House Permanent Select Committee on Intelligence,
Subpoena to T. Ulrich Brechbuhl, Counselor, Department of State
(Oct. 25, 2019).
281. Letter from Ronald J. Tenpas, Counsel to T. Ulrich
Brechbuhl, Counselor, Department of State to Chairman Adam B.
Schiff, House Permanent Select Committee on Intelligence,
Chairman Eliot L. Engel, House Committee on Foreign Affairs,
and Acting Chairwoman Carolyn B. Maloney, House Committee on
Oversight and Reform (Nov. 5, 2019).
282. Brechbuhl Dep. Tr. at 4-5.
283. Email from Committee staff to Ronald J. Tenpas,
Counsel to T. Ulrich Brechbuhl, Counselor, Department of State
(Nov. 5, 2019); Email from Committee Staff to Ronald J. Tenpas,
Counsel to T. Ulrich Brechbuhl, Counselor (Nov. 22, 2019).
284. Letter from Brian Bulatao, Under Secretary of State
for Management, to Ronald J. Tenpas, Counsel to T. Ulrich
Brechbuhl, Counselor, Department of State (Nov. 4, 2019.)
285. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to
Secretary Rick Perry, Department of Energy (Nov. 1, 2019).
286. Letter from General Counsel Bill Cooper, Department of
Energy, to Chairman Adam B. Schiff, House Permanent Select
Committee on Intelligence, Chairman Eliot L. Engel, House
Committee on Foreign Affairs, and Acting Chairwoman Carolyn B.
Maloney, House Committee on Oversight and Reform (Nov. 5,
2019).
287. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 13, 2019).
288. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 27, 2019)
(internal citations omitted).
289. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to
Ambassador Marie Yovanovitch, Former U.S. Ambassador to
Ukraine, Department of State (Sept. 27, 2019).
290. Letter from Secretary Michael R. Pompeo, Department of
State, to Chairman Eliot L. Engel, House Committee on Foreign
Affairs (Oct. 1, 2019) (Secretary Pompeo sent identical letters
to Chairman Elijah. E. Cummings, House Committee on Oversight
and Reform, and Chairman Adam B. Schiff, House Permanent Select
Committee on Intelligence, the same day).
291. Letter from Brian Bulatao, Under Secretary of State
for Management, Department of State, to Lawrence S. Robbins,
Counsel to Ambassador Marie Yovanovitch, Former U.S. Ambassador
to Ukraine, Department of State (Oct. 10, 2019).
292. The White House, Remarks by President Trump Before
Marine One Departure (Oct. 10, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-marine-one-departure-69/).
293. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Eliot L. Engel,
House Committee on Foreign Affairs, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Lawrence
S. Robbins, Counsel to Ambassador Marie Yovanovitch, Former
U.S. Ambassador to Ukraine, Department of State (Oct. 11,
2019); House Permanent Select Committee on Intelligence,
Subpoena to Ambassador Marie Yovanovitch, Former U.S.
Ambassador to Ukraine, Department of State (Oct. 11, 2019).
294. Letter from Lawrence S. Robbins, Counsel to Ambassador
Marie Yovanovitch, Former U.S. Ambassador to Ukraine,
Department of State, to Brian Bulatao, Under Secretary of State
for Management, Department of State (Oct. 11, 2019) (citations
omitted).
295. Yovanovitch Dep. Tr.
296. Id. at 70.
297. Email from Committee Staff to Lawrence S. Robbins,
Counsel to Ambassador Marie Yovanovitch, Former U.S. Ambassador
to Ukraine, Department of State (Nov. 15, 2019); House
Permanent Select Committee on Intelligence, Subpoena to
Ambassador Marie Yovanovitch, Former U.S. Ambassador to
Ukraine, Department of State (Nov. 15, 2019).
298. Yovanovitch Hearing Tr. at 157-158.
299. Letter from Chairman Elijah E. Cummings, House
Committee on Oversight and Reform, Chairman Eliot L. Engel,
House Committee on Foreign Affairs, and Chairman Adam B.
Schiff, House Permanent Select Committee on Intelligence, to
Secretary Michael R. Pompeo, Department of State (Sept. 27,
2019) (internal citations omitted) (online at https://
oversight.house.gov/sites/democrats.oversight.house.gov/files/
documents/2019-09-27.EEC%20Engel%20Schiff%20%20to%20Pompeo-
%20State%20re%20Depositions.pdf).
300. Letter from Chairman Elijah E. Cummings, House
Committee on Oversight and Reform, Chairman Eliot L. Engel,
House Committee on Foreign Affairs, and Chairman Adam B.
Schiff, House Permanent Select Committee on Intelligence, to
Ambassador Gordon Sondland, U.S. Ambassador to the European
Union, Department of State (Sept. 27, 2019).
301. Letter from Secretary Michael R. Pompeo, Department of
State, to Chairman Eliot L. Engel, House Committee on Foreign
Affairs (Oct. 1, 2019) (Secretary Pompeo sent identical letters
to Chairman Elijah. E. Cummings, House Committee on Oversight
and Reform, and Chairman Adam B. Schiff, House Permanent Select
Committee on Intelligence, the same day).
302. Letter from Brian Bulatao, Under Secretary of State
for Management, Department of State, to Robert Luskin, Counsel
to Ambassador Gordon Sondland, U.S. Ambassador to the European
Union, Department of State (Oct.7, 2019).
303. Email from Robert Luskin, Counsel to Ambassador Gordon
Sondland, U.S. Ambassador to the European Union, Department of
State, to Committee Staff (Oct. 8, 2019).
304. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Elijah E. Cummings,
House Committee on Oversight and Reform, and Chairman Eliot L.
Engel, House Committee on Foreign Affairs, to Ambassador Gordon
Sondland, U.S. Ambassador to the European Union, Department of
State (Oct. 8, 2019); House Permanent Select Committee on
Intelligence, Subpoena to Ambassador Gordon Sondland, U.S.
Ambassador to the European Union, Department of State (Oct. 11,
2019).
305. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Elijah E. Cummings,
House Committee on Oversight and Reform, and Chairman Eliot L.
Engel, House Committee on Foreign Affairs, to Ambassador Gordon
Sondland, U.S. Ambassador to the European Union, Department of
State (Oct. 14, 2019).
306. Sondland Dep. Tr.
307. Id. at 16.
308. Id. at 17.
309. Letter from Robert Luskin, Counsel to Ambassador
Gordon Sondland, U.S. Ambassador to the European Union,
Department of State, to Chairman Adam B. Schiff, House
Permanent Select Committee on Intelligence (Nov. 4, 2019);
Declaration of Ambassador Gordon Sondland, Department of State
(Nov. 4, 2019).
310. House Permanent Select Committee on Intelligence,
Subpoena to Ambassador Gordon Sondland, U.S. Ambassador to the
European Union, Department of State (Nov. 20, 2019).
311. Sondland Hearing Tr. at 160.
312. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 13, 2019).
313. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 27, 2019) (online
at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2019-09-
27.EEC%20Engel%20Schiff%20%20to%20Pompeo-
%20State%20re%20Depositions.pdf) (internal citations omitted).
314. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to George P.
Kent, Deputy Assistant Secretary of State, Bureau of European
and Eurasian Affairs, Department of State (Sept. 27, 2019).
315. Email from George P. Kent, Deputy Assistant Secretary
of State, Bureau of European and Eurasian Affairs, Department
of State, to Committee Staff (Sept. 27, 2019).
316. Letter from Secretary Michael R. Pompeo, Department of
State, to Chairman Eliot L. Engel, House Committee on Foreign
Affairs (Oct. 1, 2019) (Secretary Pompeo sent identical letters
to Chairman Elijah. E. Cummings, House Committee on Oversight
and Reform, and Chairman Adam B. Schiff, House Permanent Select
Committee on Intelligence, the same day).
317. Email from Committee Staff to Andrew M. Wright,
Counsel to George P. Kent, Deputy Assistant Secretary of State,
Bureau of European and Eurasian Affairs, Department of State
(Oct. 8, 2019).
318. Letter from Brian Bulatao, Under Secretary of State
for Management, Department of State, to Andrew M. Wright,
Counsel to George P. Kent, Deputy Assistant Secretary of State,
Bureau of European and Eurasian Affairs, Department of State
(Oct. 10, 2019).
319. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Eliot L. Engel,
House Committee on Foreign Affairs, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Andrew M.
Wright, Counsel to George P. Kent, Deputy Assistant Secretary
of State, Bureau of European and Eurasian Affairs, Department
of State (Oct. 15, 2019); House Permanent Select Committee on
Intelligence, Subpoena to George P. Kent, Deputy Assistant
Secretary of State, Bureau of European and Eurasian Affairs,
Department of State (Oct. 15, 2019).
320. Kent Dep. Tr.
321. Id. at 17.
322. House Permanent Select Committee on Intelligence,
Subpoena to George P. Kent, Deputy Assistant Secretary of
State, Bureau of European and Eurasian Affairs, Department of
State (Nov. 20, 2019).
323. Kent-Taylor Hearing Tr. at 142-143.
324. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to John J.
Sullivan, Deputy Secretary of State, Department of State (Oct.
4, 2019).
325. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to
Ambassador William B. Taylor, Jr., Charge d'Affaires, U.S.
Embassy, Kyiv, Department of State (Oct. 4, 2019).
326. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Elijah E. Cummings,
House Committee on Oversight and Reform, and Chairman Eliot L.
Engel, House Committee on Foreign Affairs, to Ambassador
William B. Taylor, Jr., Ambassador William B. Taylor, Jr.,
Charge d'Affaires, U.S. Embassy, Kyiv, Department of State
(Oct. 14, 2019).
327. Email from Committee Staff to John B. Bellinger, III,
and Jeffrey H. Smith, Counsel to Ambassador William B. Taylor,
Jr., Charge d'Affaires, U.S. Embassy, Kyiv, Department of State
(Oct. 22, 2019); House Permanent Select Committee on
Intelligence, Subpoena to Ambassador William B. Taylor, Jr.,
Charge d'Affaires, U.S. Embassy, Kyiv, Department of State
(Oct. 22, 2019).
328. Taylor Dep. Tr. at 83.
329. House Permanent Select Committee on Intelligence,
Subpoena to Ambassador William B. Taylor, Jr., Charge
d'Affaires, U.S. Embassy, Kyiv, Department of State (Nov. 13,
2019).
330. Kent-Taylor Hearing Tr. at 143.
331. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to Mark J.
MacDougall, Counsel to Catherine Croft, Foreign Service
Officer, Department of State (Oct. 24, 2019); Letter from
Chairman Eliot L. Engel, House Committee on Foreign Affairs,
Chairman Adam B. Schiff, House Permanent Select Committee on
Intelligence, and Acting Chairwoman Carolyn B. Maloney, House
Committee on Oversight and Reform, to Mark J. MacDougall,
Counsel to Christopher Anderson, Foreign Service Officer,
Department of State (Oct. 24, 2019).
332. Letter from Mark J. MacDougall, Counsel to Catherine
Croft, Foreign Service Officer, Department of State, and
Christopher Anderson, Foreign Service Officer, Department of
State, to Committee Staff (Oct. 25, 2019).
333. Letter from Brian Bulatao, Under Secretary of State
for Management, Department of State, to Mark J. MacDougall,
Counsel to Catherine Croft, Foreign Service Officer, Department
of State (Oct. 28, 2019) (bracketed text in original); Letter
from Brian Bulatao, Under Secretary of State for Management,
Department of State, to Mark J. MacDougall, Counsel to
Christopher Anderson, Foreign Service Officer, Department of
State (Oct. 28, 2019) (bracketed text in original); see Letter
from Pat A. Cipollone, Counsel to the President, The White
House, to Speaker Nancy Pelosi, Chairman Elijah E. Cummings,
House Committee on Oversight and Reform, Chairman Eliot L.
Engel, House Committee on Foreign Affairs, and Chairman Adam B.
Schiff, House Permanent Select Committee on Intelligence (Oct.
8, 2019) (online at www.whitehouse.gov/wp-content/uploads/2019/
10/PAC-Letter-10.08.2019.pdf).
334. Email from Committee Staff to Mark J. MacDougall and
Abbey McNaughton, Counsel to Catherine Croft, Foreign Service
Officer, Department of State and Christopher Anderson, Foreign
Service Officer, Department of State (Oct. 30, 2019); House
Permanent Select Committee on Intelligence, Subpoena to
Catherine Croft, Foreign Service Officer, Department of State
(Oct. 30, 2019); House Permanent Select Committee on
Intelligence, Subpoena to Christopher Anderson, Foreign Service
Officer, Department of State (Oct. 30, 2019).
335. Croft Dep. Tr.; Anderson Dep. Tr.
336. Croft Dep. Tr. at 12.
337. Anderson Dep. Tr. at 11-12.
338. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Laura K.
Cooper, Deputy Assistant Secretary of Defense for Russia,
Ukraine, Eurasia, Department of Defense (Oct. 11, 2019).
339. Letter from Deputy Secretary of Defense David L.
Norquist to Daniel Levin, Counsel to Laura K. Cooper, Deputy
Assistant Secretary of Defense for Russia, Ukraine, Eurasia,
Department of Defense (Oct. 22, 2019).
340. Email from Committee Staff to Dan Levin, Counsel to
Laura K. Cooper, Deputy Assistant Secretary of Defense for
Russia, Ukraine, Eurasia, Department of Defense (Oct. 23,
2019); House Permanent Select Committee on Intelligence,
Subpoena to Laura K. Cooper, Deputy Assistant Secretary of
Defense for Russia, Ukraine, Eurasia, Department of Defense
(Oct. 23, 2019).
341. Cooper Dep. Tr.
342. Id. at 108.
343. Email from Committee Staff to Dan Levin, Counsel to
Laura K. Cooper, Deputy Assistant Secretary of Defense for
Russia, Ukraine, Eurasia, Department of Defense (Nov. 20,
2019); House Permanent Select Committee on Intelligence,
Subpoena to Laura K. Cooper, Deputy Assistant Secretary of
Defense for Russia, Ukraine, Eurasia, Department of Defense
(Nov. 20, 2019).
344. Cooper-Hale Hearing Tr.
345. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Acting Chairwoman Carolyn B.
Maloney, House Committee on Oversight and Reform, and Chairman
Eliot L. Engel, House Committee on Foreign Affairs, to Mark
Sandy, Deputy Associate Director of National Security Programs,
Office of Management and Budget (Nov. 5, 2019).
346. Email from Mark Sandy, Deputy Associate Director of
National Security Programs, Office of Management and Budget, to
Committee Staff (Nov. 6, 2019).
347. Email from Jessica L. Donlon, Deputy General Counsel
for Oversight, Office of Management and Budget, to Committee
Staff (Nov. 7, 2019).
348. Email from Committee Staff to Barbara Van Gelder,
Counsel to Mark Sandy, Deputy Associate Director of National
Security Programs, Office of Management and Budget (Nov. 16,
2019); House Permanent Select Committee on Intelligence,
Subpoena to Mark Sandy, Deputy Associate Director of National
Security Programs, Office of Management and Budget (Nov. 16,
2019).
349. Sandy Dep. Tr.
350. Id. at 161.
351. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Dr. Fiona
Hill, Former Deputy Assistant to the President and Senior
Director for Europe and Russia, National Security Council (Oct.
9, 2019).
352. Letter from Lee S. Wolosky, Counsel to Dr. Fiona Hill,
Former Deputy Assistant to the President and Senior Director
for Europe and Russia, National Security Council, to Michael M.
Purpura, Deputy Counsel and Deputy Assistant to the President,
The White House, and Patrick F. Philbin, Deputy Counsel and
Deputy Assistant to the President, The White House (Oct. 13,
2019).
353. Letter from Michael M. Purpura, Deputy Counsel and
Deputy Assistant to the President, The White House, to Lee S.
Wolosky, Counsel to Dr. Fiona Hill, Former Deputy Assistant to
the President and Senior Director for Europe and Russia,
National Security Council (Oct. 14, 2019).
354. Email from Committee Staff to Lee S. Wolosky and
Samuel S. Ungar, Counsel to Dr. Fiona Hill, Former Deputy
Assistant to the President and Senior Director for Europe and
Russia, National Security Council (Oct. 14, 2019); House
Permanent Select Committee on Intelligence, Subpoena to Dr.
Fiona Hill, Former Deputy Assistant to the President and Senior
Director for Europe and Russia, National Security Council (Oct.
14, 2019).
355. Hill Dep. Tr.
356. Letter from Lee S. Wolosky, Counsel to Dr. Fiona Hill,
Former Deputy Assistant to the President and Senior Director
for Europe and Russia, National Security Council, to Michael M.
Purpura, Deputy Counsel and Deputy Assistant to the President,
The White House (Nov. 18, 2019).
357. Letter from Michael M. Purpura, Deputy Counsel and
Deputy Assistant to the President, The White House, to Lee S.
Wolosky, Counsel to Dr. Fiona Hill, Former Deputy Assistant to
the President and Senior Director for Europe and Russia,
National Security Council (Nov. 20, 2019).
358. Email from Committee Staff to Lee S. Wolosky and
Samuel S. Ungar, Counsel to Dr. Fiona Hill, Former Deputy
Assistant to the President and Senior Director for Europe and
Russia, National Security Council (Nov. 21, 2019); House
Permanent Select Committee on Intelligence, Subpoena to Dr.
Fiona Hill, Former Deputy Assistant to the President and Senior
Director for Europe and Russia, National Security Council (Nov.
21, 2019).
359. Hill-Holmes Hearing Tr.
360. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to
Lieutenant Colonel Alexander S. Vindman, Director for Ukraine,
National Security Council (Oct. 16, 2019).
361. Email from Committee Staff to Michael Volkov and Matt
Stankiewicz, Counsel to Lieutenant Colonel Alexander S.
Vindman, Director for Ukraine, National Security Council (Oct.
29, 2019); House Permanent Select Committee on Intelligence,
Subpoena to Lieutenant Colonel Alexander S. Vindman, Director
for Ukraine, National Security Council (Oct. 29, 2019).
362. Vindman Dep. Tr. (During the deposition, Lieutenant
Colonel Vindman stated: ``I was subpoenaed to appear here. You
know, absent a subpoena, I would believe I was operating under
the President's guidance to not appear, but I was subpoenaed
and I presented myself.'' Vindman Dep. Tr. at 232).
363. Email from Committee Staff, to Michael Volkov and Matt
Stankiewicz, Counsel to Lieutenant Colonel Alexander S.
Vindman, Director for Ukraine, National Security Council (Nov.
19, 2019); House Permanent Select Committee on Intelligence,
Subpoena to Lieutenant Colonel Alexander S. Vindman, Director
for Ukraine, National Security Council (Nov. 19, 2019).
364. Vindman-Williams Hearing Tr.
365. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Timothy
Morrison, Former Deputy Assistant to the President and Senior
Director for Europe and Russia, National Security Council (Oct.
16, 2019).
366. Email from Committee Staff to Barbara Van Gelder,
Counsel to Timothy Morrison, Former Deputy Assistant to the
President and Senior Director for Europe and Russia, National
Security Council (Oct. 31, 2019); House Permanent Select
Committee on Intelligence, Subpoena to Timothy Morrison, Former
Deputy Assistant to the President and Senior Director for
Europe and Russia, National Security Council (Oct. 31, 2019).
367. Morrison Dep. Tr.
368. Email from Committee Staff to Barbara Van Gelder,
Counsel to Timothy Morrison, Former Deputy Assistant to the
President and Senior Director for Europe and Russia, National
Security Council (Nov. 19, 2019); House Permanent Select
Committee on Intelligence, Subpoena to Timothy Morrison, Former
Deputy Assistant to the President and Senior Director for
Europe and Russia, National Security Council (Nov. 19, 2019).
369. Morrison-Volker Hearing Tr.
370. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, to David
Hale, Under Secretary of State for Political Affairs,
Department of State (Nov. 1, 2019).
371. Letter from Brian A. Glasser, Counsel to David Hale,
Under Secretary of State for Political Affairs, Department of
State, to Chairman Adam B. Schiff, House Permanent Select
Committee on Intelligence, Chairman Eliot L. Engel, House
Committee on Foreign Affairs, and Acting Chairwoman Carolyn B.
Maloney, House Committee on Oversight and Reform (Nov. 5,
2019).
372. Email from Committee Staff to Brian Glasser and Cary
Joshi, Counsel for David Hale, Under Secretary of State for
Political Affairs, Department of State (Nov. 6, 2019); House
Permanent Select Committee on Intelligence, Subpoena to David
Hale, Under Secretary of State for Political Affairs,
Department of State (Nov. 6, 2019).
373. Hale Dep. Tr.
374. Email from Committee Staff to Brian A. Glasser,
Counsel to David Hale, Under Secretary of State for Political
Affairs, Department of State (Nov. 20, 2019); House Permanent
Select Committee on Intelligence, Subpoena to David Hale, Under
Secretary of State for Political Affairs, Department of State
(Nov. 20, 2019).
375. Cooper-Hale Hearing Tr.
376. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Acting Chairwoman Carolyn B.
Maloney, House Committee on Oversight and Reform, and from
Chairman Eliot L. Engel, House Committee on Foreign Affairs, to
Kenneth L. Wainstein, Counsel to David Holmes, Political
Counselor at the U.S. Embassy in Kyiv, Ukraine, Department of
State (Nov. 12, 2019).
377. Email from Committee Staff to Kenneth L. Wainstein,
Paul J. Nathanson, and Katherine Swan, Counsel to David Holmes,
Political Counselor at the U.S. Embassy in Kyiv, Ukraine,
Department of State (Nov. 15, 2019); House Permanent Select
Committee on Intelligence, Subpoena to David Holmes, Political
Counselor at the U.S. Embassy in Kyiv, Ukraine, Department of
State (Nov. 15, 2019).
378. Holmes Dep. Tr.
379. Email from Committee Staff to Kenneth L. Wainstein,
Paul J. Nathanson, and Katherine Swan, Counsel to David Holmes,
Political Counselor at the U.S. Embassy in Kyiv, Ukraine,
Department of State (Nov. 21, 2019); House Permanent Select
Committee on Intelligence, Subpoena to David Holmes, Political
Counselor at the U.S. Embassy in Kyiv, Ukraine, Department of
State (Nov. 21, 2019).
380. Hill-Holmes Hearing Tr.
381. Email from Committee Staff to Ambassador P. Michael
McKinley, Former Senior Advisor to the Secretary of State,
Department of State (Oct. 12, 2019).
382. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to John B.
Bellinger, III, Counsel to Ambassador P. Michael McKinley,
Former Senior Advisor to the Secretary of State, Department of
State (Oct. 14, 2019).
383. McKinley Transcribed Interview Tr.
384. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to
Ambassador Philip T. Reeker, Acting Assistant Secretary, Bureau
of European and Eurasian Affairs, Department of State (Oct. 16,
2019).
385. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, Chairman Eliot L. Engel,
House Committee on Foreign Affairs, and Acting Chairwoman
Carolyn B. Maloney, House Committee on Oversight and Reform, to
Margaret E. Daum, Counsel to Ambassador Philip T. Reeker,
Acting Assistant Secretary, Bureau of European and Eurasian
Affairs, Department of State (Oct. 25, 2019); House Permanent
Select Committee on Intelligence, Subpoena to Ambassador Philip
T. Reeker, Acting Assistant Secretary, Bureau of European and
Eurasian Affairs, Department of State (Oct. 25, 2019).
386. Reeker Dep. Tr.
387. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 13, 2019).
388. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to Secretary
Michael R. Pompeo, Department of State (Sept. 27, 2019).
389. Letter from Chairman Eliot L. Engel, House Committee
on Foreign Affairs, Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Chairman Elijah E.
Cummings, House Committee on Oversight and Reform, to
Ambassador Kurt Volker, U.S. Special Representative for Ukraine
Negotiations, Department of State (Sept. 27, 2019).
390. Letter from Secretary Michael F. Pompeo, Department of
State, to Chairman Eliot L. Engel, House Committee on Foreign
Affairs (Oct. 1, 2019) (Identical letters transmitted to
Chairman Schiff and Chairman Cummings).
391. Letter from Marik A. String, Acting Legal Advisor,
Department of State, to Margaret E. Daum, Counsel to Ambassador
Kurt Volker, U.S. Special Representative for Ukraine
Negotiations, Department of State (Oct. 2, 2019).
392. Letter from Margaret E. Daum, Counsel to Ambassador
Kurt Volker, U.S. Special Representative for Ukraine
Negotiations, Department of State, to Chairman Eliot L. Engel,
House Committee on Foreign Affairs, Chairman Adam B. Schiff,
House Permanent Select Committee on Intelligence, and Chairman
Elijah E. Cummings, House Committee on Oversight and Reform
(Oct. 2, 2019); Kurt Volker Document Production, Bates
KV0000000-KV00000065 (Oct. 2, 2019).
393. Volker Transcribed Interview Tr.
394. Morrison-Volker Hearing Tr.
395. Letter from Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence, and Acting Chairwoman Carolyn
B. Maloney, House Committee on Oversight and Reform, and
Chairman Eliot L. Engel, House Committee on Foreign Affairs, to
Justin Shur, Counsel to Jennifer Williams, Special Advisor for
Europe and Russia, Office of the Vice President (Nov. 4, 2019).
396. Email from Committee Staff to Justin Shur, Counsel to
Jennifer Williams, Special Advisor for Europe and Russia,
Office of the Vice President (Nov. 7, 2019); House Permanent
Select Committee on Intelligence, Subpoena to Jennifer
Williams, Special Advisor for Europe and Russia, Office of the
Vice President (Nov. 7, 2019).
397. Williams Dep. Tr.
398. Letter from Jennifer Williams, Special Advisor for
Europe and Russia, Office of the Vice President, Justin Shur,
Emily K. Damrau, and Caleb Hayes-Deats, Counsel to Jennifer
Williams, Special Advisor for Europe and Russia, Office of the
Vice President, to Chairman Adam B. Schiff, House Permanent
Select Committee on Intelligence (Nov. 11, 2019).
399. Email from Committee Staff to Justin Shur and Caleb
Hayes-Deats, Counsel to Jennifer Williams, Special Advisor for
Europe and Russia, Office of the Vice President (Nov. 19,
2019); House Permanent Select Committee on Intelligence,
Subpoena to Jennifer Williams, Special Advisor for Europe and
Russia, Office of the Vice President (Nov. 19, 2019).
400. Vindman-Williams Hearing Tr.
401. Yovanovitch Dep. Tr. at 193.
402. Yovanovitch Hearing Tr. at 37-38.
403. Id. at 38.
404. Donald J. Trump, Twitter (Nov. 15, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1195356198347956224).
405. Yovanovitch Hearing Tr. at 46.
406. The Latest: Ousted Ukraine Ambassador Has Her Say in
Hearing, Associated Press (Nov. 16, 2019) (online at https://
apnews.com/2f420045618b4106b6fa7419a3d75b8e).
407. Impeachment Inquiry Hearing with Former US Ambassador
to Ukraine, CNN (Nov. 15, 2019) (online at www.cnn.com/
politics/live-news/impeachment-hearing-11-15-19/
h_fb32b149181437e02e5d937c6fc64f35). During a recess in the
hearing at which Ambassador Yovanovitch was testifying, a
federal jury returned a verdict of guilty against President
Trump's longest-serving political advisor, Roger Stone, on
seven criminal counts, including witness tampering and
obstruction of Congress' investigation into Russian
interference in the 2016 election and possible links to
President Trump's campaign. Mr. Stone used threats and
intimidation to attempt to persuade a witness to withhold
information and lie to Congress. He has yet to be sentenced.
See Roger Stone Guilty on All Counts of Lying to Congress,
Witness Tampering, Washington Post (Nov. 15, 2019) (online at
www.washingtonpost.com/local/public-safety/roger-stone-jury-
weighs-evidence-and-a-defense-move-to-make-case-about-mueller/
2019/11/15/554fff5a-06ff-11ea-8292-c46ee8cb3dce_story.html).
Mr. Stone was convicted of giving false and misleading
statements to the Intelligence Committee, failing to produce
and lying about the existence of records responsive to
Committee requests, and attempting to persuade a witness to
give false testimony to the Committee. Among other acts of
witness tampering, Mr. Stone told the witness to ``Stonewall
it. Plead the Fifth'' and to ``be honest w fbi'' that ``there
was no back channel.'' He also called the witness a ``rat'' and
``stoolie'' and threatened retaliation. United States v. Roger
Stone, Indictment, No. 1:19-cr-00018-ABJ (Jan. 24, 2019). Mr.
Stone was convicted of violating 18 U.S.C. Sec. 1505
(obstruction), 18 U.S.C. 1001 (false statements), and 18 U.S.C.
Sec. 1512(b) (witness tampering).
408. Fox and Friends, Fox News (Nov. 22, 2019) (online at
www.youtube.com/watch?v=WNqKhRcpktU).
409. Donald J. Trump, Twitter (Oct. 23, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1189167309455331328).
410. The White House, Remarks by President Trump Before
Marine One Departure (Nov. 3, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-marine-one-departure-74/).
411. Donald J. Trump, Twitter (Nov. 19, 2019) (retweeting
Dan Scavino Jr., Twitter (Nov. 19, 2019) (online at https://
twitter.com/Scavino45/status/1196860213233684480)).
412. See, e.g, Berman Shocked by Republican's Attacks on US
War Vet, CNN (Oct. 29, 2019) (online at www.cnn.com/videos/
politics/2019/10/29/duffy-berman-spar-over-vindman-loyalty
newday-vpx.cnn) (former Rep. Sean Duffy claiming that Lt. Col
Vindman ``has an affinity, I think for the Ukraine,'' that ``it
seems very clear that he is incredibly concerned about
Ukrainian defense,'' and that ``I don't know that he's
concerned about American policy''); see also Rudy Giuliani,
Twitter (Oct. 30, 2019) (online at https://twitter.com/
RudyGiuliani/status/1189732605383630850) (claiming that Lt.
Col. Vindman was ``giving advice to two countries'' and stating
that ``I thought he worked for US'').
413. House Permanent Select Committee on Intelligence,
Written Statement of Lieutenant Colonel Alexander S. Vindman,
Impeachment, 116th Cong. (Nov. 19, 2019).
414. Donald J. Trump, Twitter (Oct. 23, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1187063301731209220).
415. Donald J. Trump, Twitter (Oct. 23, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1187080923961012228).
416. The White House, Remarks by President Trump Before
Marine One Departure (Oct. 25, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-marine-one-departure-72/).
417. Donald J. Trump, Twitter (Nov. 13, 2019) (online at
https://twitter.com/realdonaldtrump/status/
1194608482793795584).
418. Donald J. Trump, Twitter (Nov. 17, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1196155347117002752).
419. Vindman-Williams Hearing Tr. at 97.
420. Donald J. Trump, Twitter (Nov. 16, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1195727871765073921); Donald J. Trump, Twitter (Nov. 16, 2019)
(online at https://twitter.com/realDonaldTrump/status/
1195727879780360193).
421. 50 U.S.C. Sec. 3033(g)(3) (when a complaint is
received from a member of the Intelligence Community, ``the
Inspector General shall not disclose the identity of the
employee without the consent of the employee, unless the
Inspector General determines that such disclosure is
unavoidable during the course of the investigation or the
disclosure is made to an official of the Department of Justice
responsible for determining whether a prosecution should be
undertaken'').
422. 50 U.S.C. Sec. 3234(b).
423. Letter from Michael K. Atkinson, Inspector General of
the Intelligence Community, to Chairman Adam B. Schiff, House
Permanent Select Committee on Intelligence, and Ranking Member
Devin Nunes, House Permanent Select Committee on Intelligence
(Sept. 9, 2019); see also 50 U.S.C. 3033(k)(5)(C) (``Upon
receipt of the transmittal from the ICIG, the Director shall
within 7 calendar days of such receipt, forward such
transmittal to the congressional intelligence committees,
together with any comments the Director considers
appropriate.'')
424. Letter from Chairman, Adam B. Schiff, House Permanent
Select Committee on Intelligence, to Joseph Maguire, Acting
Director of National Intelligence, Office of the Director of
National Intelligence (Sept. 13, 2019).
425. House Permanent Select Committee on Intelligence,
House Intelligence Committee Releases Whistleblower Complaint
(Sept. 26, 2019) (online at https://intelligence.house.gov/
news/documentsingle.aspx?DocumentID=708).
426. Listen: Audio of Trump Discussing Whistleblower at
Private Event: That's Close to a Spy,' Los Angeles Times (Sept.
26, 2019) (online at www.latimes.com/politics/story/2019-09-26/
trump-at-private-breakfast-who-gave-the-whistle-blower-the-
information-because-thats-almost-a-spy).
427. House Permanent Select Committee on Intelligence,
Chairmen Warn President to Stop Attacking Whistleblower and
Witnesses to His Misconduct and to Halt Efforts to Obstruct
Impeachment Inquiry (Sept. 26, 2019) (online at https://
intelligence.house.gov/news/
documentsingle.aspx?DocumentID=709).
428. Donald J. Trump, Twitter (Sept. 29, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1178442765736333313?s=20).
429. Donald J. Trump, Twitter (Oct. 4, 2019) (online at
https://twitter.com/realDonaldTrump/status/
1180123504924151809).
430. The White House, Remarks by President Trump Before
Marine One Departure (Nov. 3, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-marine-one-departure-74/).
431. Donald J. Trump, Twitter (Nov. 3, 2019) (online at
https://twitter.com/realdonaldtrump/status/
1191000516580519937).
432. The White House, Remarks by President Trump Before
Marine One Departure (Nov. 3, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-marine-one-departure-74/).
433. The White House, Remarks by President Trump Before
Marine One Departure (Nov. 4, 2019) (online at
www.whitehouse.gov/briefings-statements/remarks-president-
trump-marine-one-departure-75/).
434. The White House, Remarks by President Trump After Tour
of Apple Manufacturing Plant (Nov. 20, 2019) (online
www.whitehouse.gov/briefings-statements/remarks-president-
trump-tour-apple-manufacturing-plant-austin-tx/).
435. Letter from Chairman Adam B. Schiff to Ranking Member
Devin Nunes, House Permanent Select Committee on Intelligence
(Nov. 9, 2019).
436. In 2017, every Republican Member of Congress joined a
unanimous vote in the House of Representatives to increase
penalties for retaliation against whistleblowers. U.S. House of
Representatives, Roll Call Vote Approving S. 585, The Dr. Chris
Kirkpatrick Whistleblower Protection Act of 2017 (Oct. 12,
2017) (420 yeas, 0 nays) (online at www.govtrack.us/congress/
votes/115-2017/h568).
437. House Intelligence Chair News Conference, C-SPAN (Mar.
24, 2017) (online at www.c-span.org/video/?425953-1/paul-
manafort-volunteered-intelligence-committee-chairman-nunes).
438. Id.
439. Office of Senator Chuck Grassley, Grassley Statement
Regarding Intel Community Whistleblower (Oct. 1, 2019) (online
at www.grassley.senate.gov/news/news-releases/grassley-
statement-regarding-intel-community-whistleblower).
440. Senate Intel Chair Doesn't Want Whistleblower's
Identity Disclosed, The Hill (Nov. 7, 2019) (online at https://
thehill.com/homenews/senate/469455-senate-intel-chair-doesnt-
want-whistleblowers-identity-disclosed).
441. Republicans Break with Trump and Rand Paul on
Whistleblower Unmasking, Politico (Nov. 5, 2019) (online at
www.politico.com/news/2019/11/05/rand-paul-trump-whistleblower-
065917).
Appendix A: Key People and Entities
------------------------------------------------------------------------
------------------------------------------------------------------------
Anderson, Christopher J................... Special Advisor for Ukraine
Negotiations, Department of
State, August 2017-July
2019
Atkinson, Michael K....................... Inspector General of the
Intelligence Community, May
2018-present
Avakov, Arsen............................. Ukrainian Minister of
Internal Affairs, February
2014-present
Bakanov, Ivan............................. Head of Security Service of
Ukraine, August 2019-
present; First Deputy Chief
of the Security Service of
Ukraine, May 2019-August
2019
Barr, William P........................... Attorney General, Department
of Justice, February 2019-
present
Biden, Hunter............................. Son of former Vice President
Joe Biden
Biden, Joseph R., Jr...................... U.S. Vice President, January
2009-January 2017
Blair, Robert B........................... Assistant to the President
and Senior Advisor to the
Chief of Staff, February
2019-present
Bohdan (Bogdan), Andriy................... Head of Ukrainian
Presidential
Administration, May 2019-
present
Bolton, John.............................. National Security Advisor,
March 2018-September 2019
Brechbuhl, T. Ulrich...................... Counselor, Department of
State, May 2018-present
Bulatao, Brian............................ Under Secretary of State for
Management, Department of
State, May 2019-present
Burisma Holdings.......................... Ukrainian energy company
Cipollone, Pat............................ White House Counsel,
December 2018-present
Clinton, Hillary Rodham................... Democratic Presidential
candidate, November 2016
Cooper, Laura K........................... Deputy Assistant Secretary
of Defense for Russia,
Ukraine, Eurasia,
Department of Defense, 2016-
present
Croft, Catherine M........................ Special Advisor for Ukraine
Negotiations, Department of
State, July 2019-present;
Ukraine director, National
Security Council, July 2017-
July 2018
CrowdStrike............................... Cybersecurity company;
object of conspiracy
theories claiming that
CrowdStrike framed Russia
in hack of the DNC server
in the 2016 U.S. election
Danyliuk (Danylyuk), Oleksandr ``Sasha''.. Secretary, Ukrainian
National Security and
Defense Council, May 2019-
September 2019
diGenova, Joseph.......................... Attorney allegedly working
for President Trump to
obtain information from
Ukrainian officials on the
Bidens
Duffey, Michael........................... Associate Director, National
Security Programs, Office
of Management and Budget,
May 2019-present
Eisenberg, John........................... Legal Advisor to the
National Security Council
and Deputy Counsel to the
President for National
Security Affairs, February
2017-present
Ellis, Michael............................ Senior Associate Counsel to
the President and Deputy
Legal Advisor to the
National Security Council,
March 2017-present
Elwood, Courtney Simmons.................. General Counsel, Central
Intelligence Agency, June
2017-present
Engel, Steven A........................... Assistant Attorney General,
Office of Legal Counsel,
Department of Justice,
November 2017-present
Esper, Mark............................... Secretary of Defense,
Department of Defense, July
2019-present; Acting
Secretary of Defense, June
2019-July 2019
Fruman, Igor.............................. Giuliani associate named in
indictment unsealed on
October 10, 2019
Giuliani, Rudolph ``Rudy''................ President Trump's agent and
personal attorney
Griffith, P. Wells........................ Senior Director for
International Energy and
Environment, National
Security Council, April
2018-present
Hale, David M............................. Under Secretary of State for
Political Affairs,
Department of State, August
2018-present
Hannity, Sean............................. Host of Hannity, Fox News,
January 2009-present
Hill, Fiona............................... Deputy Assistant to the
President and Senior
Director for Europe and
Russia, National Security
Council, April 2017-July
2019
Hochstein, Amos J......................... Supervisory Board Member,
Naftogaz, November 2017-
present
Holmes, David A........................... Political Counselor, U.S.
Embassy in Kyiv, Ukraine,
August 2017-present
Johnson, Ron.............................. Senator from Wisconsin,
Chairman, Senate Homeland
Security and Governmental
Affairs Committee, January
2015-present
Kellogg, Keith............................ National Security Advisor to
the Vice President, April
2018-present
Kenna, Lisa D............................. Executive Secretary in the
Office of the Secretary,
Department of State, June
2017-present
Kent, George P............................ Deputy Assistant Secretary
of State, Bureau of
European and Eurasian
Affairs, September 2018-
present; Deputy Chief of
Mission in Kyiv, Ukraine,
2015-2018
Kholodnitsky, Nazar....................... Head, Ukrainian Specialized
Anti-Corruption
Prosecutor's Office,
November 2015-present
Klitenic, Jason........................... General Counsel, Office of
the Director of National
Intelligence
Kulyk, Kostiantyn......................... Deputy Head of the Ukrainian
Department of International
Legal Cooperation of the
Prosecutor General's
Office, November 2018-
November 2019
Kupperman, Charles M...................... Deputy National Security
Advisor, January 2019-
September 2019
Kushner, Jared............................ Assistant to the President
and Senior Advisor, 2017-
present
Kvien, Kristina........................... Deputy Chief of Mission,
U.S. Embassy in Kyiv, May
2019-present
Lutsenko, Yuriy........................... Ukrainian Prosecutor
General, May 2016-August
2019
McCormack, Brian.......................... Associate Director for
Natural Resources, Office
of Management and Budget,
September 2019-present;
Chief of Staff, Department
of Energy, March 2017-
September 2019
McKinley, P. Michael...................... Senior Advisor to the
Secretary, Department of
State, May 2018-October
2019
McKusker, Elaine A........................ Deputy Under Secretary of
Defense (Comptroller),
Department of Defense,
August 2017-present
Maguire, Joseph........................... Acting Director of National
Intelligence, August 2019-
present
Manafort, Paul............................ Chairman, Donald J. Trump
presidential campaign, May
2016-August 2016; convicted
in August 2018 on two
counts of bank fraud, five
counts of tax fraud, and
one count of failure to
disclose a foreign bank
account
Morrison, Tim............................. Deputy Assistant to the
President for National
Security, National Security
Council, July 2019-October
2019
Mueller, Robert S., III................... Special Counsel, Department
of Justice, May 2017-May
2019
Mulvaney, John Michael ``Mick''........... Acting Chief of Staff, White
House, January 2019-present
Murphy, Chris............................. Senator from Connecticut,
Ranking Member,
Subcommittee on Near East,
South Asia, Central Asia,
and Counterterrorism,
Senate Committee on Foreign
Relations, formerly Ranking
Member, Subcommittee on
Europe and Regional
Security Cooperation,
Senate Committee on Foreign
Relations, January 2017-
January 2019
Naftogaz.................................. Ukrainian state-owned
national gas company
Parnas, Lev............................... Giuliani associate named in
indictment unsealed on
October 10, 2019
Patel, Kashyap ``Kash''................... Senior Director for
Counterterrorism, National
Security Council, July 2019-
present; former Staff,
Directorate of
International Organizations
and Alliances, National
Security Council, February
2019-July 2019; former
National Security Advisor,
House Permanent Select
Committee on Intelligence,
March 2018-January 2019;
former Senior Counsel for
Counterterrorism, House
Permanent Select Committee
on Intelligence, April 2017-
March 2018
Pence, Michael R.......................... Vice President, January 2017-
present
Pennington, Joseph........................ Charge d'Affaires, of the
U.S. Embassy in Ukraine,
May 2019
Perez, Carol Z............................ Director General of the
Foreign Service and
Director of Human Services,
January 2019-present
Perry, James Richard ``Rick''............. Secretary of Energy, March
2017-December 2019
Pompeo, Michael........................... Secretary of State, April
2018-present
Poroshenko, Petro......................... President of Ukraine, June
2014-May 2019
Portman, Robert........................... U.S. Senator from Ohio,
January 2011-present;
Chairman, Permanent
Subcommittee on
Investigations, Senate
Homeland Security and
Governmental Affairs
Committee, January 2015-
present
Purpura, Michael.......................... Deputy Counsel to the
President, December 2018-
present
Putin, Vladimir........................... Russian President, May 2012-
present
Reeker, Philip T.......................... Acting Assistant Secretary,
Bureau of European and
Eurasian Affairs,
Department of State, March
2019-present
Rood, John C.............................. Under Secretary of Defense
for Policy, Department of
Defense, January 2018-
present
Sandy, Mark............................... Deputy Associate Director
for National Security at
the Office of Management
and Budget, December 2013-
present; Acting Director of
the Office of Management
and Budget, January 2017-
February 2017
Sekulow, Jay.............................. Personal attorney for
President Trump
Shokin, Viktor............................ Ukrainian Prosecutor General
of Ukraine, February 2015-
March 2016
Short, Marc............................... Chief of Staff to Vice
President Mike Pence,
February 2019-present
Solomon, John............................. Author of articles promoting
debunked conspiracy
theories about the Bidens,
Crowdstrike, and the 2016
U.S. election
Sondland, Gordon.......................... U.S. Ambassador to the
European Union, July 2018-
present
String, Marik............................. Acting Legal Advisor, Office
of the Legal Advisor,
Department of State, June
2019-present
Sullivan, John J.......................... Deputy Secretary of State,
Department of State, June
2017-present
Taylor, William B., Jr.................... Charge d'Affaires for the
U.S. Embassy in Kyiv,
Ukraine, June 2019-present
``Three Amigos''.......................... Secretary of Energy Rick
Perry, Ambassador Gordon
Sondland, and Ambassador
Kurt Volker
Toensing, Victoria........................ Attorney allegedly working
``off the books'' for
President Trump to obtain
information from Ukrainian
officials on the Bidens
Trump, Donald J........................... U.S. President, January 2017-
present
Trump, Donald J., Jr...................... Son of President Trump
Vindman, Alexander S...................... Director for Ukraine,
National Security Council,
July 2018-present;
Lieutenant Colonel, U.S.
Army
Volker, Kurt.............................. U.S. Special Representative
for Ukraine Negotiations,
Department of State, July
2017-September 2019
Vought, Russell T......................... Acting Director, Office of
Management and Budget,
January 2019-present
Whistleblower............................. Author of complaint
declassified by the Office
of the Director of National
Intelligence on September
25, 2019
Williams, Jennifer........................ Special Advisor for Europe
and Russia, Office of the
Vice President, April 2019-
present
Yermak, Andriy............................ Assistant to the President
of Ukraine, May 2019-
present
Yovanovitch, Marie L...................... U.S. Ambassador to Ukraine,
August 2016-May 2019
Zakaria, Fareed........................... Host, Fareed Zakaria GPS,
June 2008-present
Zelensky, Volodymyr....................... President of Ukraine, May
2019-present
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Appendix B: Abbreviations and Common Terms
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AntAC..................................... Anti-Corruption Action
Center
CDA....................................... Charge d'Affaires / Acting
Ambassador
CIA....................................... Central Intelligence Agency
Charge d'Affaires......................... Acting Ambassador
CN........................................ Congressional Notification
COM....................................... Chief of Mission
DAS....................................... Deputy Assistant Secretary
DC........................................ Deputies Committee
DCM....................................... Deputy Chief of Mission
DNI....................................... Director of National
Intelligence
DNC....................................... Democratic National
Committee
DOD....................................... Department of Defense
DOE....................................... Department of Energy
DOJ....................................... Department of Justice
DOS....................................... Department of State
DSCA...................................... Defense Security Cooperation
Agency
EDI....................................... European Deterrence
Initiative
ERI....................................... European Reassurance
Initiative
FBI....................................... Federal Bureau of
Investigation
FMF....................................... Foreign Military Financing
FMS....................................... Foreign Military Sales
FSB....................................... Russian Federal Security
Service
IC........................................ Intelligence Community
ICIG...................................... Inspector General for the
Intelligence Community
IO........................................ Bureau of International
Organizations
IG........................................ Inspector General
Legatt.................................... Legal Attache
LNG....................................... Liquefied Natural Gas
MEMCON.................................... Memorandum of Conversation
MLAT...................................... Mutual Legal Assistance
Treaty
NABU...................................... National Anti-Corruption
Bureau of Ukraine
NBU....................................... National Bank of Ukraine
NDAA...................................... National Defense
Authorization Act
NSC....................................... National Security Council
ODNI...................................... Office of the Director of
National Intelligence
OFAC...................................... Office of Foreign Assets
Control
OMB....................................... Office of Management and
Budget
OSCE...................................... Organization for Security
and Co-operation in Europe
OVP....................................... Office of the Vice President
PAC....................................... Political Action Committee
PC........................................ Principals Committee
PCC....................................... Policy Coordination
Committee
PDB....................................... President's Daily Briefing
PDM....................................... Presidential Decision
Memorandum
PGO....................................... Prosecutor General's Office
SAPO...................................... Specialized Anti-Corruption
Prosecutor's Office
SBU....................................... Security Service of Ukraine
SDN....................................... Specially Designated
Nationals and Blocked
Persons
SMM....................................... Special Monitoring Mission
SOC....................................... Summary of Conclusions
SVTC...................................... Secure Video Teleconference
TCG....................................... Trilateral Contact Group
UNSCR..................................... United Nations Security
Council Resolution
USAI...................................... Ukraine Security Assistance
Initiative
USAID..................................... United States Agency for
International Development
WHSR...................................... White House Situation Room
YES....................................... Yalta European Strategy
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