write on behalf of President Donald J. Trump in response to your
numerous, legally unsupported demands made as part of what you have
labeled — contrary to the Constitution of the United States and all past
bipartisan precedent — as an “impeachment inquiry.” As you know, you
have designed and implemented your inquiry in a manner that violates
fundamental fairness and constitutionally mandated due process.
example, you have denied the President the right to cross-examine
witnesses, to call witnesses, to receive transcripts of testimony, to
have access to evidence, to have counsel present, and many other basic
rights guaranteed to all Americans. You have conducted your proceedings
in secret. You have violated civil liberties and the separation of
powers by threatening Executive Branch officials, claiming that you will
seek to punish those who exercise fundamental constitutional rights and
prerogatives. All of this violates the Constitution, the rule of law,
and every past precedent.
Never before in our history has the House of Representatives — under
the control of either political party — taken the American people down
the dangerous path you seem determined to pursue.
simply, you seek to overturn the results of the 2016 election and
deprive the American people of the President they have freely chosen.
Many Democrats now apparently view impeachment not only as a means to
undo the democratic results of the last election, but as a strategy to
influence the next election,
which is barely more than a year away. As one member of Congress
explained, he is "concerned that if we don't impeach the President, he
will get reelected.”1 Your
highly partisan and unconstitutional effort threatens grave and lasting
damage to our democratic institutions, to our system of free elections,
and to the American people.
1 Interview with Rep. Al Green, MSNBC (May 5, 2019).
his part, President Trump took the unprecedented step of providing the
public transparency by declassifying and releasing the record of his
call with President Zelenskyy of Ukraine. The record clearly established
that the call was completely appropriate and that there is no basis for
your inquiry. The fact that there was nothing wrong with the call was
also powerfully confirmed by Chairman Schiff’s decision to create a
false version of the call and read it to the American people at a
congressional hearing, without disclosing that he was simply making it
addition, information has recently come to light that the whistleblower
had contact with Chairman Schiff’s office before filing the complaint.
His initial denial of such contact caused The Washington Post to conclude that Chairman Schiff“clearly made a statement that was false."2 In
any event, the American people understand that Chairman Schiff cannot
covertly assist with the submission of a complaint, mislead the public
about his involvement, read a counterfeit version of the call to the
American people, and then pretend to sit in judgment as a neutral
these reasons, President Trump and his Administration reject your
baseless, unconstitutional efforts to overturn the democratic process.
Your unprecedented actions have left the President with no choice. In
order to fulfill his duties to the American people, the Constitution,
the Executive Branch, and all future occupants of the Office of the
Presidency, President Trump and his Administration cannot participate in
your partisan and unconstitutional inquiry under these circumstances.
I. Your “Inquiry” Is Constitutionally Invalid and Violates Basic Due Process Rights and the Separation of Powers.
inquiry is constitutionally invalid and a violation of due process. In
the history of our Nation, the House of Representatives has never
attempted to launch an impeachment inquiry against the President without
a majority of the House taking political accountability for that
decision by voting to authorize such a dramatic constitutional step.
Here, House leadership claims to have initiated the gravest inter-branch
conflict contemplated under our Constitution by means of nothing more
than a press conference at which the Speaker of the House simply
announced an “official impeachment inquiry.”3 Your contrived process is unprecedented in the
2 Glenn Kessler, Schiff’s False Claim His Committee Had Not Spoken to the Whistleblower, Wash. Post (Oct. 4, 2019).
history of the Nation,4 and lacks the necessary authorization for a valid impeachment proceeding.5
Committees’ inquiry also suffers from a separate, fatal defect. Despite
Speaker Pelosi’s commitment to “treat the President with fairness,”6 the
Committees have not established any procedures affording the President
even the most basic protections demanded by due process under the
Constitution and by fundamental fairness. Chairman Nadler of the House
Judiciary Committee has expressly acknowledged, at least when the
President was a member of his own party, that “[t]he power of
impeachment ... demands a rigorous level of due process,” and that in
this context “due process mean[s] ... the right to be informed of the
law, of the charges against you, the right to confront the witnesses
against you, to call your own witnesses, and to have the assistance of
counsel."7 All of these procedures have been abandoned here.
due process rights are not a matter of discretion for the Committees to
dispense with at will. To the contrary, they are constitutional
requirements. The Supreme Court has recognized that due process
protections apply to all congressional investigations.8 Indeed, it has been recognized that the Due Process Clause applies to impeachment proceedings.9 And precedent for the rights to cross-examine witnesses, call witnesses, and present evidence dates back nearly 150 years.10 Yet
the Committees have decided to deny the President these elementary
rights and protections that form the basis of the American justice
system and are protected by the Constitution. No citizen — including the
President — should be treated this unfairly.
the Founding of the Republic, under unbroken practice, the House has
never undertaken the solemn responsibility of an impeachment inquiry
directed at the President without first adopting a resolution
authorizing a committee to begin the inquiry. The inquiries into the
impeachments of Presidents Andrew Johnson and Bill Clinton proceeded in
multiple phases, each authorized by a separate House resolution. See, e.g., H.R.
Res. 581, 105th Cong. (1998); H.R. Res. 525, 105th Cong. (1998); III
Hinds’ Precedents §§ 2400-02, 2408, 24 12. And before the Judiciary
Committee initiated an impeachment inquiry into President Richard Nixon,
the Committee’s chairman rightfully recognized that “a[n] [inquiry]
resolution has always been passed by the House” and “is a necessary
step.” III Deschler’s Precedents ch. 14, § 15.2. The House thien
satisfied that requirement by adopting H.R. Res. 803, 93rd Cong. (1974).
Nadler has recognized the importance of taking a vote in the House
before beginning a presidential impeachment inquiry. At the outset of
the Clinton impeachment inquiry — where a floor vote was held — he
argued that even limiting the time for debate before
that vote was improper and that “an hour debate on this momentous
decision is an insult to the American people and another sign that this
is not going to be fair.” 144 Cong. Rec. H10018 (daily ed. Oct. 8, 1998)
(statement of Rep. Jerrold Nadler). Here, the House has dispensed with
any vote and any debate at all.
the Allegations of Misconduct Against IRS Commissioner John Koskinen
(Part II): Hearing Before the H. Comm. on the Judiciary, 114th Cong. 3 (2016) (statement of Rep. Jerrold Nadler); Background and History of Impeachment: Hearing Before the Subcommi. on the Constitution of the H. Comm. on the Judiciary, 105th Cong. 17 (1998) (statement of Rep. Jerrold Nadler).
8See, e.g., Watkins v. United States, 354 U.S. 178, 188 (1957); Quinn v. United States, 349 U.S. 155, 161 (1955).
9 See Hastings v. United States, 802 F. Supp. 490, 504 (D.D.C. 1992), vacated on other grounds by, Hastings v. United States, 988 F.2d 1280 (D.C. Cir. 1993).
10See, e.g., III Hinds’ Precedents § 2445.
comply with the Constitution’s demands, appropriate procedures would
include — at a minimum — the right to see all evidence, to present
evidence, to call witnesses, to have counsel present at all hearings, to
cross-examine all witnesses, to make objections relating to the
examination of witnesses or the admissibility of testimony and evidence,
and to respond to evidence and testimony. Likewise, the Committees must
provide for the disclosure of all evidence favorable to the President
and all evidence bearing on the credibility of witnesses called to
testify in the inquiry. The Committees’ current procedures provide none of these basic constitutional rights.
addition, the House has not provided the Committees’ Ranking Members
with the authority to issue subpoenas. The right of the minority to
issue subpoenas subject to the same rules as the majority — has been the
standard, bipartisan practice in all recent resolutions authorizing
presidential impeachment inquiries.11 The
House’s failure to provide co-equal subpoena power in this case ensures
that any inquiry will be nothing more than a one-sided effort by House
Democrats to gather information favorable to their views and to
selectively release it as only they determine, The House's utter
disregard for the established procedural safeguards followed in past
impeachment inquiries shows that the current proceedings are nothing
more than an unconstitutional exercise in political theater.
if denying the President basic procedural protections were not enough,
the Committees have also resorted to threats and intimidation against
potential Executive Branch witnesses. Threats by the Committees against
Executive Branch witnesses who assert common and longstanding rights
destroy the integrity of the process and brazenly violate fundamental
due process. In letters to State Department employees, the Committees
have ominously threatened — without any legal basis and before the
Committees even issued a subpoena — that “[a]ny failure to appear” in
response to a mere letter request for a deposition “shall constitute evidence of obstruction,”12 Worse,
the Committees have broadly threatened that if State Department
officials attempt to insist upon the right for the Department to have an
agency lawyer present at depositions to protect legitimate Executive
Branch confidentiality interests — or apparently if they make any effort
to protect those confidentiality interests at all — these officials will have their salaries withheld.13
suggestion that it would somehow be problematic for anyone to raise
long- established Executive Branch confidentiality interests and
privileges in response to a request for a deposition is legally
unfounded. Not surprisingly, the Office of Legal Counsel at the
Department of Justice has made clear on multiple occasions that
employees of the Executive Branch who have been instructed not to appear
or not to provide particular testimony before Congress based on
privileges or immunities of the Executive Branch cannot be punished for
from Eliot L. Engel, Chairman, House Committee on Foreign Affairs, et
al., to George P. Kent, Deputy Assistant Secretary, U.S. Department of
State 1 (Sept. 27, 2019).
Letter from Eliot L. Engel, Chairman, House Committee on Foreign
Affairs, et al., to John J. Sullivan, Deputy Secretary of State 2-3
(Oct. 1, 2019).
following such instructions.14 Current
and former State Department officials are duty bound to protect the
confidentiality interests of the Executive Branch, and the Office of
Legal Counsel has also recognized that it is unconstitutional to exclude
agency counsel from participating in congressional depositions.15 In
addition, any attempt to withhold an official’s salary for the
assertion of such interests would be unprecedented and unconstitutional.16 The
Committees assertions on these points amount to nothing more than
strong-arın tactics designed to rush proceedings without any regard for
due process and the rights of individuals and of the Executive Branch.
Threats aimed at intimidating individuals who assert these basic rights
are attacks on civil liberties that should profoundly concern all
II. The Invalid “Impeachment Inquiry” Plainly Seeks To Reverse the Election of 2016 and To Influence the Election of 2020.
effort to impeach President Trump — without regard to any evidence of
his actions in office — is a naked political strategy that began the day
he was inaugurated, and perhaps even before.17 In
fact, your transparent rush to judgment, lack of democratically
accountable authorization, and violation of basic rights in the current
proceedings make clear the illegitimate, partisan purpose of this
purported “impeachment inquiry.” The Founders, however, did not create
the extraordinary mechanism of impeachment so it could be used by a
political party that feared for its prospects against the sitting
President in the next election. The decision as to who will be elected
President in 2020 should rest with the people of the United States,
exactly where the Constitution places it.
themselves used to recognize the dire implications of impeachment for
the Nation. For example, in the past, Chairman Nadler has explained:
effect of impeachment is to overturn the popular will of the voters. We
must not overturn an election and remove a President from office except
to defend our system of government or our constitutional liberties
against a dire threat, and we must not do so without an overwhelming
consensus of the American people. There must never be a narrowly voted
impeachment or an impeachment supported by one of our major political
parties and opposed by another. Such an impeachment will produce
divisiveness and bitterness in our
14See, e.g., Testimonial Immunity Before Congress of the Former Counsel to the President, 43 Op. O.L.C. _, *19 (May 20, 2019); Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege,
8 Op. O.L.C. 101, 102, 140 (1984) (“The Executive, however, must be
free from the threat of criminal prosecution if its right to assert
executive privilege is to have any practical substance.")
15Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. _,*1-2 (May 23, 2019).
16See President Donald J. Trump, Statement by the President on Signing the Consolidated Appropriations Act, 2019 (Feb. 15, 2019); Authority of Agency Officials To Prohibit Employees From Providing Information to Congress, 28 Op. O.L.C, 79, 80 (2004).
17See Matea Gold, The Campaign To Impeach President Trump Has Begun,
Wash. Post (Jan. 21, 2017) (“At the moment the new commander in chief
was sworn in, a campaign to build public support for his impeachment
went live ....”).
politics for years to come, and will call into question the very legitimacy of our political institutions.18
the President’s political opponents now seem eager to transform
impeachment from an extraordinary remedy that should rarely be
contemplated into a conventional political weapon to be deployed for
partisan gain. These actions are a far cry from what our Founders
envisioned when they vested Congress with the “important trust” of
considering impeachment.19 Precisely
because it nullifies the outcome of the democratic process, impeachment
of the President is fraught with the risk of deepening divisions in the
country and creating long-lasting rifts in the body politic.20 Unfortunately,
you are now playing out exactly the partisan rush to judgment that the
Founders so strongly warned against. The American people deserve much
better than this.
III. There Is No Legitimate Basis for Your “Impeachment Inquiry”; Instead, the Committees’ Actions Raise Serious Questions.
is transparent that you have resorted to such unprecedented and
unconstitutional procedures because you know that a fair process would
expose the lack of any basis for your inquiry. Your current effort is
founded on a completely appropriate call on July 25, 2019, between
President Trump and President Zelenskyy of Ukraine, Without waiting to
see what was actually said on the call, a press conference was held
announcing an “impeachment inquiry” based on falsehoods and
misinformation about the call.21 To
rebut those falsehoods, and to provide transparency to the American
people, President Trump secured agreement from the Government of Ukraine
and took the extraordinary step of declassifying and publicly releasing
the record of the call. That record clearly established that the call
was completely appropriate, that the President did nothing wrong, and
that there is no basis for an impeachment inquiry. At a joint press
conference shortly after the call’s public release, President Zelenskyy
agreed that the call was appropriate,22 In
addition, the Department of Justice announced that officials there had
reviewed the call after a referral for an alleged campaign finance law
violation and found no such violation.23
the best evidence that there was no wrongdoing on the call is the fact
that, after the actual record of the call was released, Chairman Schiff
chose to concoct a false version of the call and to read his made-up
transcript to the American people at a public hearing.24 This
18 144 Cong. Rec. HI 1786 (daily ed. Dec. 18, 1998) (statement of Rep. Jerrold Nadler).
22President Trump Meeting with Ukrainian President, C-SPAN (Sept. 25, 2019).
of Kerri Kupec, Director, Office of Public Affairs, Dept. of Justice
(Sept. 25, 2019) (“[T]he Department’s Criminal Division reviewed the
official record of the call and determined, based on the facts and
applicable law, that there was no campaign finance violation and that no
further action was warranted.”).
24See Whistleblower Disclosure: Hearing Before the H. Select Comm. on Intel., 116th Cong. (Sept. 26, 2019) (statement of Rep. Adam Schiff).
confirms there is no issue with the actual call. Otherwise, why would
Chairman Schiff feel the need to make up his own version? The Chairman’s
action only further undermines the public’s confidence in the fairness
of any inquiry before his Committee.
real problem, as we are now learning, is that Chairman Schiff’s office,
and perhaps others — despite initial denials — were involved in
advising the whistleblower before the complaint was filed. Initially,
when asked on national television about interactions with the
whistleblower, Chairman Schiff unequivocally stated that “[w]e have not
spoken directly with the whistleblower. We would like to.”25
however, it has been reported that the whistleblower approached the
House Intelligence Committee with information — and received guidance
from the Committee — before filing a complaint with the Inspector
General.26 As a result, The Washington Post concluded that Chairman Schiff “clearly made a statement that was false.”27 Anyone
who was involved in the preparation or submission of the
whistleblower’s complaint cannot possibly act as a fair and impartial
judge in the same matter — particularly after misleading the American
people about his involvement.
of this raises serious questions that must be investigated. However,
the Committees are preventing anyone, including the minority, from
looking into these critically important matters. At the very least,
Chairman Schiff must immediately make available all documents relating
to these issues. After all, the American people have a right to know
about the Committees’ own actions with respect to these matters.
that your inquiry lacks any legitimate constitutional foundation, any
pretense of fairness, or even the most elementary due process
protections, the Executive Branch cannot be expected to participate in
it. Because participating in this inquiry under the current
unconstitutional posture would inflict lasting institutional harm on the
Executive Branch and lasting damage to the separation of powers, you
have left the President no choice. Consistent with the duties of the
President of the United States, and in particular his obligation to
preserve the rights of future occupants of his office, President Trump
cannot permit his Administration to participate in this partisan inquiry
under these circumstances.
recent letter to the Acting White House Chief of Staff argues that
“[e]ven if an impeachment inquiry were not underway,” the Oversight
Committee may seek this information
25 Interview with Chairman Adain Schiff, MSNBC (Sept. 17, 2019).
26 Julian Barnes, et al., Schiff Got Early Account of Accusations as Whistle-Blower’s Concerns Grew, N.Y. Times (Oct. 2, 2019).
27 Glenn Kessler, Schiff’sFalse Claim His Committee Had Not Spoken to the Whistleblower, Wash. Post (Oct. 4, 2019).
as a matter of the established oversight process.28 Respectfully,
the Committees cannot have it both ways. The letter comes from the
Chairmen of three different Committees, it transmits a subpoena
“[p]ursuant to the House of Representatives’ impeachment inquiry,” it
recites that the documents will “be collected as part of the House’s
impeachment inquiry,” and it asserts that the documents will be “shared
among the Committees, as well as with the Committee on the Judiciary as
letter is in no way directed at collecting information in aid of
legislation, and you simply cannot expect to rely on oversight authority
to gather information for an unauthorized impeachment inquiry that
conflicts with all historical precedent and rides roughshod over due
process and the separation of powers. If the Committees wish to return
to the regular order of oversight requests, we stand ready to engage in
that process as we have in the past, in a manner consistent with
well-established bipartisan constitutional protections and a respect for
the separation of powers enshrined in our Constitution.
the foregoing reasons, the President cannot allow your constitutionally
illegitimate proceedings to distract him and those in the Executive
Branch from their work on behalf of the American people. The President
has a country to lead. The American people elected him to do this job,
and he remains focused on fulfilling his promises to the American
people. He has important work that he must continue on their behalf,
both at home and around the world, including continuing strong economic
growth, extending historically low levels of unemployment, negotiating
trade deals, fixing our broken immigration system, lowering prescription
drug prices, and addressing mass shooting violence. We hope that, in
light of the many deficiencies we have identified in your proceedings,
you will abandon the current invalid efforts to pursue an impeachment
inquiry and join the President in focusing on the many important goals
that matter to the American people.
Pat A. Cipollone
Counsel to the President
Hon. Kevin McCarthy, Minority Leader, House of Representatives
Hon. Michael McCaul, Ranking Member, House Committee on Foreign Affairs
Hon. Devin Nunes, Ranking Member, House Permanent Select Committee on Intelligence
Hon. Jim Jordan, Ranking Member, House Committee on Oversight and Reform
from Elijah e, Cummings, Chairman, House Committee on Oversight and
Government Reform, et al., to John Michael Mulvaney, Acting Chief of
Staff to the President 3 (Oct. 4, 2019).