State AGs urge Senate to reject impeachment in stinging letter: 'A dangerous historical precedent'

State AGs urge Senate to reject impeachment in stinging letter: 'A dangerous historical precedent'


Attorneys General of: South Carolina, Louisiana, Utah,
Alabama, Alaska, Arkansas, Florida. Georgia, Indiana, Kansas,
Kentucky, Mississippi, Missouri, Montana, Nebraska, Ohio,
Oklahoma, South Dakota, Tennessee, Texas, and West Virginia
January 22, 2020
The Honorable Members of the United States Senate
c/o The Honorable Julie E. Adams
Secretary of Senate
United States Capitol
Washington, D.C. 20510
Dear Members,
As Attorneys General of 21 States whose citizens and Electoral College delegates voted
in the 2016 presidential election, we have a special duty to defend the integrity of the votes cast
by those citizens and electors during that election. However, our interests go well beyond that
particular election. This impeachment proceeding threatens all future elections and establishes a
dangerous historical precedent. That new precedent will erode the separation of powers shared
by the executive and legislative branches by subjugating future Presidents to the whims of the
majority opposition party in the House of Representatives. Thus, our duty to current and future
generations commands us to urge the Senate to not only reject the two articles of impeachment
contained in H. Res. 755—“abuse of power” and “obstruction of Congress”—as lacking in any
plausible or reasonable evidentiary basis, but also as being fundamentally flawed as a matter of
constitutional law.
If not expressly repudiated by the Senate, the theories animating both Articles will set a
precedent that is entirely contrary to the Framers’ design and ruinous to the most important
governmental structure protections contained in our Constitution: the separation of powers. As
the House Judiciary Committee Democrats put it during the 1998 impeachment of President
Clinton, “Impeachment is like a wall around the fort of the separation of powers. The crack we
put in the wall today becomes the fissure tomorrow, which ultimately destroys the wall
entirely.”1 We agree.
Impeachment should never be a partisan response to one party losing a presidential
election. If successful, an impeachment proceeding nullifies the votes of millions of citizens. The
Democrat-controlled House passing of these constitutionally-deficient articles of impeachment
amounts, at bottom, to a partisan political effort that undermines the democratic process itself.
Even an unsuccessful effort to impeach the President undermines the integrity of the 2020
presidential election because it weaponizes a process that should only be initiated in exceedingly
rare circumstances and should never be used for partisan purposes. Impeachment may cast a pall
over the office of the presidency, undermines the President’s constitutional authority, and taints
his – and America’s – standing with foreign leaders and ultimately irreparably damages the
1 Minority Views, House Judiciary Comm., Impeachment of William Jefferson Clinton, President of the United
States, H. R. Rep. No. 105-830, at 200 (1999)
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United States’ interests. This body should never permit impeachment proceedings to proceed
where they are permeated with the clearly partisan objective of energizing a political party’s base
to, ultimately, influence a presidential election. Such a raw political and unconstitutional use of
the impeachment power should not be countenanced by the Senate.
Because the legal theories underlying both Articles I and II are legally flawed and
factually insufficient, as well as inherently destructive of separation of powers, the Senate should
explicitly reject them to protect both the institution of the Presidency and the Constitution. A
close examination of the legal theories and stipulations of fact accompanying Articles I and II
reveal their fatal flaws.2 It is important to note that the focus of this legal analysis will be on the
stipulations of fact relied upon by the House at the time of the impeachment vote because this is
the precedent upon which all future impeachment proceedings will rely.
Article I—“abuse of power”
Article I is based upon a constitutionally-flawed theory that the President can be
impeached for exercising concededly lawful constitutional authority “motivated” by thoughts a
House majority unilaterally deems “corrupt.” This “corrupt motive” theory is infinitely
expansive and subjective. It will erode separation of powers, making the President impeachable
for what his political adversaries perceive his thoughts to be. Moreover, the conclusory factual
allegations purporting to support Article I’s “abuse of power” charge fall far below the
evidentiary standard that should be demanded by the Senate before taking the extraordinary step
of even entertaining charges to remove a sitting President from office. As the Supreme Court has
stated in the context of civil litigation, a pleading that offers only conclusory allegations devoid
of factual support is not entitled to any presumption of truth and must be dismissed for failure to
state a claim.3 Article I suffers from the same fatal factual deficit, relying on speculative,
conclusory allegations that are contradicted by, and indeed conveniently ignore, known material
facts.
Article I does not identify any high crimes or misdemeanors committed by President
Trump. Instead, it relies upon the nebulous phrase, “abuse of power.” While an indictable crime
is not indispensable to establish a “high crime and misdemeanor,” the absence of such a crime—
particularly under the facts of this particular impeachment—counsels great skepticism that the
constitutional standard has been met.
Even more disturbing than its insufficient factual predicate is the theory underlying the
abuse of power charge. The House Judiciary Committee’s report offered a definition of “abuse of
power” as “the use of official powers in a way that on its face grossly exceeds the President’s
constitutional authority or violates legal limits on that authority.” Unfortunately, immediately
after doing so, the Committee unveiled an unprecedented expansion: declaring that “a President
can be impeached for exercising power with a “corrupt purpose.” Article I embraces this legally-
2 The facts, as discussed below, come directly from the facts the House voted upon and memorialized in Articles I
and II.
3 See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“[A] court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of
truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual
allegations.”).
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flawed theory, repeatedly stating that President Trump’s actions constitute an abuse of power
because they were undertaken “for corrupt purposes,” specifically, the “corrupt” purpose of
“personal political benefit.”4
On the surface, the words “corrupt motives” sound ominous and perhaps suggest a
legitimate basis for accusing someone of “abuse of power.” But a close examination of the facts
upon which the House vote was predicated and as outlined in Article I reveals the serious threat
this concept poses to the separation of powers. Article I does not accuse President Trump of
“corruption”— a concept the Framers expressly rejected as a basis for impeachment. Nor does
Article I accuse President Trump of committing a corruption-related “high crime or
misdemeanor,” as required for removal by Article II, § 4 of the Constitution. Instead, it alleges
the President should be removed because a partisan-majority of the House thinks he exercised
lawful constitutional authority for a “corrupt” purpose, which it defines as a “personal political
benefit.” The President, in other words, is being impeached for political thought crime.
The threat such a limitless concept poses to the most fundamental principles of our
system of government are plain. It cannot be a legitimate basis to impeach a President for acting
in a legal manner that may also be politically advantageous. Such a standard would be cause for
the impeachment of virtually every President, past, present, and future. Nor can it be a legitimate
basis to impeach a President whose constitutional responsibilities command him to investigate
crimes, cooperate with other nations’ criminal investigations in accord with mutual legal
assistance treaties, and grant him broad discretion to conduct diplomatic and foreign affairs. The
President’s duty to “faithfully execute” the law and his diplomatic power also require that neither
he nor his Administration turn a blind eye to potential criminal acts of Americans, even if doing
so is politically advantageous.
Moreover, impeachment based upon the President’s exercise of his foreign relations
power is inherently dangerous, precisely because he has broad constitutional discretion, the
exercise of which often generates intense political and policy disagreements. The Supreme Court
has recognized the broad scope of discretion afforded to the President in this area. For example,
in United States v. Curtiss-Wright Export Corporation (1936), the Court stated flatly that the
President is “the sole organ of the federal government in the field of international relations.”
The Framers were right to cabin impeachment authority and to worry about its use as a
political weapon. Consider the damage already done to presidential foreign affairs authority—
and the Nation as a whole—because of House Democrats’ decision to impeach based upon a
high-level diplomatic phone call. To defend his reputation, the President was forced to release
the transcript of an otherwise highly-sensitive conversation with another foreign leader.
Witnesses who testified about the President’s purported motives have all been subordinate
diplomatic personnel, mostly career bureaucrats, none of whom have first-hand knowledge but
many of whom have strong suspicions, beliefs, and negative opinions about the President’s
actions.
4 H. Res. 755, p. 3, lines 4-5. See also id. at 3, line 15 (“corruptly” solicited); id. at 3, line 24 (“With the same
corrupt motives . . . . “); id. at 4, line 19-21 (“openly and corruptly” soliciting investigations “for personal political
benefit.”); id. at 5, line 3-4 (“to obtain an improper personal political benefit”).
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The Trump-Zelensky call, which forms the basis of Article I, was initially claimed to
violate campaign finance law on the specious theory that asking to investigate a political rival or
his family members is soliciting a “thing of value” constituting a “contribution” by a foreign
national.5 Then came the equally suspect claim that the call established the crime of bribery or
extortion.6 At the end of the House’s investigation, however, it failed to allege any of these
crimes, relying instead on the murky and manipulable claim of “abuse of power,” with its own
impossibly broad definition capturing the House Democrats’ perception of the President’s
thoughts.
Specifically, Article I of H. Res. 755 asserts President Trump committed an abuse of
power by “soliciting the Government of Ukraine to publicly announce investigations” into two
matters: (1) “a political opponent, former Vice President Joseph R. Biden, Jr”; and (2) “a
discredited theory promoted by Russia alleging that Ukraine—rather than Russia—interfered in
the 2016 United States Presidential election.”7 Article I further asserts that President Trump
“conditioned two official acts” on Ukraine’s public announcement of these two investigations:
(1) the release of $391 million appropriated for Ukrainian military and security assistance; and
(2) a meeting at the White House with Ukrainian President Zelensky.8
Regarding allegedly withholding appropriated funds, Article I concedes9 President Trump
released the appropriated funds for Ukraine on September 11, well before the expiration of the
fiscal year on September 3010 and does not allege a violation of the Impoundment Control Act.
Regarding the alleged withholding of a meeting at the White House, the call transcript reveals
that President Trump invited Zelensky to the White House prior to the call and stated several
times that he looked forward to having Zelensky visit.11 The two men subsequently met in New
York September 25, 2019. While the bilateral meeting took place in New York rather than
5 Ian Millhiser, The 4 Possible Crimes in the Trump-Ukraine Whistleblower Scandal, Explained, VOX, Sept. 27,
2019, available at https://www.vox.com/policy-and-politics/2019/9/27/20885557/criminal-laws-trump-barr-giulianiukraine.
The notion that the sharing of non-public information is a “thing of value” under campaign finance law as
has never been accepted by any court or the Federal Election Commission. See, e.g., 1 REPORT ON THE
INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016 PRESIDENTIAL ELECTION 187 (“[N]o judicial decision has
treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that
could amount to a contribution under campaign-finance law.”); Lee E. Goodman, The Mueller Report: Is
Information a Contribution? Wiley Newsletter, May 2019, available at https://www.wiley.law/newsletter-The-
Mueller-Report-Is-Information-a-Contribution.
6 Richard Blumenthal, Yes, Trump Is Guilty of Bribery, WASHINGTON POST, Dec. 3, 2019, available at
https://www.washingtonpost.com/opinions/yes-trump-is-guilty-of-bribery/2019/12/03/8468424e-15f9-11ea-a659-
7d69641c6ff7_story.html; Jeffrey Toobin, In His Dealings With Ukraine, Did Donald Trump Commit a Crime?,
THE NEW YORKER, Nov. 1, 2019, available at https://www.newyorker.com/news/daily-comment/in-his-dealingswith-
ukraine-did-donald-trump-commit-a-crime.
7 H. Res. 755, at p. 3, lines 18-23.
8 Id. at p. 4, lines 2-15.
9 H. Res. 755, at p. 4, lines 17-19.
10 The Impoundment Control Act permits the President to defer appropriated monies by notification to Congress, but
not beyond the fiscal year. 2 U.S.C. § 684. It is unclear whether the OMB’s use of apportionment for the Ukrainian
funds constitutes a deferral under the ICA.
11 President Zelensky told President Trump, “I also wanted to thank you for your invitation to visit the United States,
specifically Washington D.C.” President Trump replied, “Whenever you would like to come to the White House,
feel free to call. Give us a date and we’ll work that out. I look forward to seeing you.” Memorandum of Telephone
Conversation With President Zelensky of Ukraine, July 25, 2019, available at https://www.whitehouse.gov/wpcontent/
uploads/2019/09/Unclassified09.2019.pdf.
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Washington, D.C., impeaching a President for holding a meeting with a foreign leader at a venue
other than the White House is a patent abuse of the impeachment power, confirming the petty
nature of this aspect of Article I.
Regarding Article I’s charge that President Trump abused his power by “soliciting”
investigations into the Bidens and Ukrainian interference in the 2016 presidential election, the
factual predicate upon which the charge is made is entirely conclusory and omits material facts.
Specifically, Article I fails to even mention that then-Vice President Biden’s son, the principal
focus of President Trump’s comments to President Zelensky,12 was appointed to an unusually
lucrative, multi-million dollar position on the Board of Directors of Ukrainian energy giant
Burisma. This was done despite his having no prior experience in the energy sector, and only one
month after his father, then-Vice President Joe Biden, was named the Obama Administration’s
“point person” on Ukraine.13 The Trump-Zelensky call occurred July 25, 2019, shortly after U.S.
media widely reported Hunter Biden’s Ukrainian activities and his father’s threat to fire the
Ukrainian prosecutor investigating Burisma.14 These reports about the Bidens’ dealings in
Ukraine raise serious and legitimate questions about possible violations of both U.S. and
Ukrainian law.
Moreover, Article I conclusively declares that the possibility of Ukrainian interference in
the 2016 presidential election has been “discredited” and is being “promoted by Russia.” Yet
there has been no completed investigation of the matter. Senators Grassley and Johnson—chairs,
respectively, of the Committees on Finance and Homeland Security and Governmental Affairs—
have urged the Department of Justice (“DOJ”) to investigate possible interference in the 2016
presidential election.15 Indeed, the DOJ recently confirmed that such an investigation is ongoing,
within the assigned jurisdiction of U.S. Attorney John Durham.16
12 The transcript of the Trump-Zelensky call reveals that President Trump’s Biden-related comments, in toto, were
as follows:
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 look into it. It sounds horrible to me.
Memorandum of Telephone Conversation With President Zelensky of Ukraine, July 25, 2019, available at
https://www.whitehouse.gov/wp-content/uploads/2019/09/Unclassified09.2019.pdf.
13 Mark Hemingway, Hunter Biden’s Burisma Post Had a Troubling Conflict, Watchdog Says,
REALCLEARINVESTIGATIONs, Nov. 19, 2019, available at
https://www.realclearinvestigations.com/articles/2019/11/19/hunter_bidens_burisma_post_had_a_troubling_conflict
_watchdog_says_121260.html.
14 See, e.g., Tom Llamas et al., Biden Sidesteps Questions About His Son’s Foreign Business Dealings But Promises
Ethics Pledge, ABCNEWS.COM, June 20, 2019, available at https://abcnews.go.com/Politics/biden-sidestepsquestions-
sons-foreign-business-dealings-promises/story?id=63820806; Michael Kranish & David L. Stern, As Vice
President, Joe Biden Said Ukraine Should Increase Gas Production. Then His Son Got a Job With a Ukrainian Gas
Company, Washington Post, July 22, 2019, available at https://www.washingtonpost.com/politics/as-vice-presidentbiden-
said-ukraine-should-increase-gas-production-then-his-son-got-a-job-with-a-ukrainian-gascompany/
2019/07/21/f599f42c-86dd-11e9-98c1-e945ae5db8fb_story.html.
15 Letter to U.S. Attorney General William Barr from Senator Chuck E. Grassley and Ron Johnson, Sept. 27, 2019,
available at https://www.grassley.senate.gov/sites/default/files/2019-09-
27%20CEG%20RHJ%20to%20DOJ%20%28Ukraine%20DNC%29.pdf.
16 Jerry Dunleavy, U.S. Attorney John Durham Looking Into Ukrainian Involvement in 2016 Election, WASHINGTON
EXAMINER, Sept. 25, 2019.
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In sum, the Article I claims are both legally flawed and factually insufficient. This body
should consider the broader implications of accepting the House’s corrupt motives theory.
Politicians regularly act in an official capacity in ways that are or may have political benefit.17
This is especially true of Presidents in their role as the nation’s chief diplomat. In a 1987 speech
in Berlin, for example, President Reagan beseeched, “Mr. Gorbachev, tear down this wall!” In
2008, President Bush made multiple personal appeals to then-Saudi King Abdullah to increase
oil production in an effort to bring down U.S. gas prices. In January 2015, President Obama
asked then-Mexican President Peña Nieto to halt the flow of illegal immigrants entering the U.S.
Indeed, Presidents routinely ask other countries to cooperate on a wide variety of matters such as
trade, denuclearization, and handling of energy and other natural resources.
Under House Democrats’ corrupt motives theory, however, a President who negotiates a
nuclear deal with Iran or a trade deal with China can be impeached for abuse of power if the
House majority believes the deal was “motivated” by a desire to enhance the President’s
reelection prospects rather than to benefit the country. But how would members of Congress ever
know what really motivated the President? Motives are often in the eye of the beholder because
they are exceedingly difficult to discern and generally mixed.
The House’s corrupt motives theory is dangerous to democracy because it encourages
impeachment whenever the President exercises his constitutional authority in a way that offends
the opposing political party, which is predisposed to view his motives with skepticism and
motivated by its own motives to re-gain that very office. The potential for impeachment based
upon raw political or policy disagreements will increase exponentially, transforming it from a
rare, objective, bipartisan event to a subjective, common, partisan weapon.
Significantly, impeachment for policy disagreements was something the Framers
vehemently opposed. Professor Michael Gerhardt, whom House Democrats called as a witness to
support President Trump’s impeachment, testified in 1999 during the Clinton impeachment that
“one of the most often repeated pronouncements of the Framers” was “that impeachment is not
designed to address policy differences of opinion.”
If “high crimes and misdemeanors” is to retain the properly narrow meaning understood
by the Framers, it cannot encompass the exercise of lawful presidential authority that the House
majority deems was performed with “bad” or “corrupt” motives. Such an expansion of the
meaning of “high crimes and misdemeanors” would render the President nothing more than a
ward of Congress. As Harvard Law professor Laurence Tribe described it in the context of the
Clinton impeachment, when “a laid-back jurisprudence of an amorphous Constitution is applied
17 Indeed, the political nature of the President and members of Congress—the “political” branches—makes
impeachment for corrupt motives particularly destructive of separation of powers. By contrast, federal judges, who
are members of the non-political judicial branch and accordingly receive lifetime appointments, arguably may be
impeached for “abuse of power” if their official actions are motivated by partisan influences. As Harvard Law
professor Laurence Tribe put it, “what constitutes an abuse of official power and what conduct cripples the
officeholders’ ability to discharge the duties and responsibilities of his or her office necessarily depends on what the
office is. Letting partisan considerations affect one’s decisions, for example, is always an impeachable abuse of
power in a judge. Almost never would it be in a president.” Laurence H. Tribe, Comm. on the Judiciary, Subcomm.
on the Constitution, Hearing on the Impeachment of President William Jefferson Clinton, 106th Cong., 1st Sess., H.
R. Rep. No. 106-3, at 220 (1999).
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to the basic architecture of our government, it is a siren song for playing Russian roulette that
protects us all from the perils of an enfeebled presidency.”18
For this reason, abuse of power may be a valid basis for impeachment, but only for
obvious and objectively egregious acts that either clearly exceed the President’s constitutional
authority or alternatively, violate his constitutional or statutory duties.
Article II—“obstruction of Congress”
Article II of the Articles of Impeachment is as equally flawed as Article I. Under the
House’s “unilateral control” theory of obstruction, the President could be impeached anytime he
vigorously invokes and seeks to protect executive privilege in response to the House’s demand
for Executive Branch information. But this is precisely what executive privilege is for—to
protect the independence of the Executive Branch from Legislative overreach and thereby
safeguard the separation of powers. If the House can impeach a President for invoking executive
privilege, the privilege is meaningless because it is under unilateral control of the House.
Thus, as with Article I’s charge, the theory underlying the obstruction of Congress charge
is even more disturbing than its lack of factual predicate. Specifically, the theory animating the
Article II charge is that a President may be impeached because he dared to invoke executive
privilege. This theory, if allowed to stand unchallenged, will be massively destructive of
presidential independence from Congress.
If the House believed President Trump’s invocation of executive privilege was
unjustified, it should have done what every other congressional committee has done: go to court
to enforce the subpoena and challenge the assertion of privilege. When former deputy national
security adviser Charles Kupperman challenged the House Intelligence Committee’s subpoena,
however, Chairman Adam Schiff voluntarily withdrew the Kupperman subpoena19 and failed
entirely to pursue judicial enforcement of others.20
Article II states that the House committees involved in the impeachment inquiry against
President Trump “served subpoenas seeking documents and testimony deemed vital to the
inquiry from various Executive Branch agencies and offices, and current and former officials.”21
It then asserts that “without lawful cause or excuse,” the President “directed Executive Branch
agencies, offices and officials not to comply with those subpoenas.”22 It further lists nine
18 Laurence H. Tribe, Comm. on the Judiciary, Subcomm. on the Constitution, Hearing on the Impeachment of
President William Jefferson Clinton, 106th Cong., 1st Sess., H. R. Rep. No. 106-3, at 219 (1999).
19 Andrew O’Reilly, House Withdraws Subpoena for Former Nat’l Security Council Deputy Charles Kupperman,
FOXNEWS.COM, Nov. 6, 2019, available at https://www.foxnews.com/politics/house-withdraws-subpoena-forformer-
national-security-council-deputy-charles-kupperman.
20 The House Judiciary Committee subpoenaed former White House Counsel Don McGahn to testify regarding a
separate issue—namely, whether President Trump may have obstructed justice with regard to the investigation of
Special Counsel Robert Mueller. McGahn invoked executive privilege and the federal district judge in D.C., Judge
Jackson, ruled that while McGahn must appear before the committee, he is free to invoke executive privilege when
he appears. Comm. on the Judiciary v. McGahn, Civ. No. 19-cv-2379 (KBJ)
2019 WL 631201 (D.D.C. Nov. 25, 2019).
21 H, Res. 755, at p. 6, lines 12-15.
22 Id. at lines 16-18.
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individuals who defied House subpoenas, all high-ranking political appointees and advisors to
the President at the White House, OMB, and the Departments of Energy and State.23 Notably
absent from the list of nine “vital” witnesses who defied subpoenas are former National Security
Advisor John Bolton and his deputy, Charles Kupperman. Also notably absent in Article II is any
mention that the subpoenas were defied on the basis of the President’s invocation of executive
privilege.
Executive privilege exists to protect the President’s constitutional prerogatives, much like
the Speech and Debate Clause protects the prerogatives of Congress and judicial immunity
protects the prerogatives of judges. Once executive privilege is asserted, coequal branches of the
Government are set on a collision course.24 The Supreme Court has made clear, however, that the
executive privilege “is fundamental to the operation of Government and inextricably rooted in
the separation of powers under the Constitution.”25 And the Supreme Court has also stated in
Barenblatt v. United States, that Congress “cannot inquire into matters which are within the
exclusive province of one of the other branches of the Government.”26 The conduct of foreign
diplomacy is one such “exclusive province” of the President, who is “the sole organ of the
federal government in the field of international relations.” United States v. Curtiss-Wright Export
Corp. (1936). More recently, in Zivotovsky v. Kerry, the Court reiterated that Congress “has no
constitutional power that would enable it to initiate diplomatic relations with a foreign nation”;
that power belongs exclusively to the President.27
As the Supreme Court stated in United States v. Nixon, the “President and those who
assist him must be free to explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express except privately. These are
the considerations justifying a presumptive privilege for Presidential communications.”28
Notably, the Nixon Court stated that communications involving “military, diplomatic or sensitive
national security secrets” may be entitled to even higher deference than normally accorded
domestic policy communications. The nine individuals mentioned in Article II of H. Res. 775
who invoked executive privilege were all subpoenaed because the House impeachment
committees wanted to ask them about communications relating to President Trump’s call with
23 The nine individuals are Mick Mulvaney, Robert Blair, John Eisenberg, Michael Ellis, Wells Griffith, Russell
Vought, Michael Duffey, Brian McCormack, and Ulrich Brechbuhl. These are of course not the only individuals
who received subpoenas as part of the Trump impeachment proceedings. CNN lists 42 individuals as receiving
subpoenas, including high-ranking individuals such as Vice President Pence, Secretary of State Mike Pompeo,
Energy Secretary Rick Perry, Defense Secretary Mark Esper and Trump personal attorney Rudy Giuliani. See
Marshall Cohen & Will Houp, Trump Impeachment Tracker, CNN.COM, Jan. 15, 2020, available at
https://www.cnn.com/interactive/2019/politics/trump-impeachment-inquiry-tracker/#/category/subpoena. Numerous
other subpoenaed individuals have, of course, testified.
24 When such clashes reach the judiciary, the Supreme Court has stated, “[t]he Judiciary is forced into the difficult
task of balancing the need for information in a judicial proceeding and the Executive's Article II prerogatives. This
inquiry places courts in the awkward position of evaluating the Executive's claims of confidentiality and autonomy,
and pushes to the fore difficult questions of separation of powers and checks and balances. These ‘occasion[s] for
constitutional confrontation between the two branches’ should be avoided whenever possible.”; Cheney v. U.S. Dist.
Court for D.C., 542 U.S. 367, 389–90,(2004), citing United States v. Nixon, , 418 U.S. 683, 692 (1974).
25 Nixon, 418 U.S. at 708.
26 360 U.S. 109, 112 (1959).
27 135 S. Ct. 2076, 2086 (2015).
28 418 U.S. at 708.
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the Ukrainian president and the administration’s decision to apportion Ukrainian military aid
funds. Yet all of these matters are military and diplomatic in nature, suggesting that the
President’s invocation of executive privilege was not only justified, but even more so than in the
typical congressional subpoena to the Executive Branch seeking information on an ordinary
domestic policy matter.
President Trump has thus been charged with a “high crime or misdemeanor” for doing
what all Presidents and top advisers routinely do - invoking executive privilege when Congress
seeks to unconstitutionally interfere with the president’s high-level executive communications.
This implies that the President is a mere ward of Congress, who must answer when Congress
commands it or face impeachment, even though no court has ruled upon the subpoena’s validity
or the privilege’s applicability.
Under the House’s “unilateral control” theory of obstruction, the House has unilateral
authority to decide whether executive privilege applies. In a dispute between the political
branches, in other words, the holder of the executive privilege is the House of Representatives,
not the President. If the Senate does not decisively reject this theory of impeachment, the
executive privilege will be rendered meaningless, along with separation of powers.
The Historical Meaning of “High Crimes and Misdemeanors”
The Framers hesitated to give Congress impeachment power over the President, fearing
this precise problem–that it would be abused for political gain. Charles Pinckney worried that
impeachment would become “a rod over the Executive and by that means effectually destroy his
independence.”29 Rufus King opined that it “would be destructive to his independence” and was
unnecessary because the President is “periodically tried for his behavior by his electors” every
four years.30 Gouverneur Morris agreed that, because the President is politically accountable via
election—unlike appointed judges and Executive Branch officers—his impeachment “ought to
be enumerated and defined” carefully to prevent the President from being “dependent on the
Legislature.”31 Edmund Randolph likewise supported “excluding as much as possible the
influence of the Legislature from the business [of the Executive].”32
Ultimately, the constitutional convention agreed upon a Constitution that gave the House
the “sole Power of Impeachment” and the Senate the “sole Power to try all Impeachments,” with
conviction by two-thirds of Senators present. Under Article I, § 3, the sentence imposed “shall
not extend further” than removal from office and disqualification to hold future office. If the
Senate opts to remove, Article II, § 4, requires that action be predicated on “Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors.” Therefore, two key principles cabin
the impeachment power: (1) requiring two-thirds of the Senate to vote for conviction; and (2)
limiting the most drastic, anti-democratic remedy—removal—to conviction for treason, bribery
or “other high crimes and misdemeanors.”
29 Statement of Charles Pinckney, in 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 66 (Max Farrand ed.
1911) (July 20, 1787) (hereinafter Farrand).
30 Statement of Rufus King, in 2 Farrand 67.
31 Statement of Gouverneur Morris, in 2 Farrand 65, 69.
32 Statement of Edmund Randolph, in 2 Farrand 67.
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These limitations were carefully and thoughtfully designed to prevent impeachment from
becoming a political weapon used to undermine separation of powers and democracy itself. As
Alexander Hamilton put it in Federalist No. 68, an “important desideratum was, that the
Executive should be independent for his continuance in office on all but the people themselves.”
As such, the President is subject to frequent election to allow regular public input into whether
he should be retained in office. Limiting Congress’s ability to remove a President in these
particular ways was designed to protect the integrity of presidential elections and de-politicize all
attempts to remove the president via impeachment, limiting such a drastic measure to the most
egregious, clear cut instances of misbehavior.
The “high crimes and misdemeanors” limitation is best understood in the context of the
history of its adoption by the constitutional convention. While the “high crimes and
misdemeanors” language may seem broad or vague to modern ears, in 1787 it was intended to
raise the bar of impeachment, making it more difficult, as evidenced by the convention’s
rejection of a more permissive impeachment language.
For example, on August 6, 1787, the Committee of Detail, consisting of five delegates
from various States,33 reported a draft constitution for consideration by the full convention. This
draft stated that the President “shall be removed from his office by impeachment by the House of
Representatives, and conviction in the Supreme Court, of treason, bribery or corruption.”34
Several weeks later, on August 20, 1787, the convention directed the Committee of Detail to
draft a provision making the President and other officers (including the Chief Justice of the
Supreme Court) removable “for neglect of duty, malversation, or corruption.”35 On August 31,
1787, the convention referred the issue of impeachment—and all other residual issues on which
agreement had not yet been reached—to a Committee of Eleven, consisting of one convention
delegate from every State. On September 4, 1787, the Committee of Eleven reported out a draft,
stating that the President could be removed upon conviction in the Senate only for “for treason,
or bribery.”36
Four days later, on September 8, 1787, George Mason objected, arguing that limiting
impeachment to treason and bribery was too narrow. He thus moved to add “or
maladministration” after the word “bribery.”37 His motion did not get far.
James Madison opposed Mason’s motion as giving Congress too much power over the
President, asserting “So vague a term will be equivalent to a tenure during pleasure of the
Senate” rather than the people themselves.38 Gouverneur Morris likewise agreed that the
presidential election process, rather than impeachment, would provide the appropriate remedy
for an incompetent or blundering President, stating, “an election of every four years will prevent
maladministration.” Sensing the opposition to his broad proposal, Mason withdrew it and offered
33 The Committee of Detail consisted of Rutledge (South Carolina), Randolph (Virginia), Gorham (Massachusetts),
Ellsworth (Connecticut) and Wilson (Pennsylvania).
34 2 Farrand 186.
35 Id. at 337.
36 Id. at 499.
37 Id. at 550.
38 Id.
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the narrower language of “other high crimes and misdemeanors,” which then passed the
Committee, 8-3.
The history of how the “high crimes and misdemeanors” language came to be adopted
thus clearly demonstrates that, in the Framers’ view, it had narrower scope than
“maladministration” or other more similarly broad terms that had been rejected at various stages,
including “neglect of duty,” “malversation,” and “corruption.” While these words had been
considered at some point, none survived as a basis for impeachment because their subjectivity
and breadth raised the specter of the Framers’ biggest fear—that impeachment would become a
tool for unseating a duly-elected President based on mere policy or political disagreements with
Congress.
Allowing Congress to impeach based on charges of neglect, corrupt motive or
maladministration would be far too tempting, increasing its incidence and destroying the
Presidency as an independent, co-equal branch of government. While the constitutional
convention ultimately agreed to give Congress the power to impeach and remove a President, it
was only upon conviction by two-thirds of the Senate for “treason, bribery, or other high crimes
or misdemeanors,” not “maladministration” or generalized allegations of “corruption.”
The Senate Must Expressly Reject the Unconstitutional “Corrupt Motives” and “Unilateral
Control” Theories Underlying Articles I and II of H. Res. 775
The Senate is often referred to as a “cooling saucer,” meant to temper House’s popular
passions. The need for the Senate’s check on the lower chamber has never been greater. Never
before has the House impeached a President on such a nakedly political basis. While House
Speaker Nancy Pelosi finally transmitted the articles of impeachment against President Trump to
the Senate, her month-long delay reinforces the conclusion that politics, not national security
concerns, animates the House’s conduct.
In prosecuting this impeachment of President Trump, House Democrats have often
repeated the maxim that “no one is above the law.” This is undoubtedly true, but it only
emphasizes the House’s failure to identify any law—much less one rising to the level of a “high
crime or misdemeanor”—warranting the President’s removal from office. The abuse of power
and obstruction of Congress charges levied against President Trump amplify the maxim’s
inapplicability, as the Trump-Zelensky phone call (upon which the abuse of power article is
based) and the invocation of executive privilege (upon which the obstruction of congress article
is based) were both indisputably well within the President’s constitutional authority.
If exercising presidential authority to conduct foreign affairs, investigating potential
violations of U.S. law, and asserting executive privilege are “high crimes and misdemeanors”
justifying impeachment, Presidents are but congressional puppets, impeachable whenever
exercising their constitutional authority angers the political opposition in Congress. Contrary to
what Speaker Pelosi recently claimed, our Founders would clearly not support the current
impeachment effort.
House Delays in the Impeachment Trial Have Caused Irreparable Harm to the Nation.
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A delayed impeachment trial also harms the nation because it cripples the officeholder’s
ability to govern effectively and attempts to cast a pall over his legitimacy, a pall which is lifted
only by conviction or acquittal. When the officeholder is the President of the United States, a
delayed impeachment is particularly harmful, because undermining a President’s constitutional
authority, even temporarily, creates serious risks to national security and the separation of
powers.
In Federalist No. 65, Alexander Hamilton told the ratifying public that a delayed
impeachment trial would be detrimental to the nation because it would cause “prolonged
inaction” by those impeached, which may be viewed as a desirable tool of “persecution” by an
“intemperate or designing majority in the House of Representatives.” Speaker Pelosi’s monthlong
delay in delivering the articles of impeachment is a stark illustration of the concerns
expressed in Federalist No. 65. The Articles, hanging like a Sword of Damocles over President
Trump’s head, weaken the United States internally and externally. This political gamesmanship
has been far more damaging to national security than apportioning aid to Ukraine.
In Federalist No. 66, Hamilton told the American public that they could “count upon
[Senators’] in pride, if not upon their virtue” in exercising the power to try impeachments. The
Framers presupposed that Senators’ institutional pride would not allow them to tolerate an
impeachment that wastes the Senate’s or the nation’s time. We beseech the Senate to resist the
House’s attempt to lower the bar of impeachment by espousing theories that inherently
undermine separation of powers with its consequent weakening of our entire republican
democracy.
Conclusion
Because the legal theories underlying both Articles I and II are both legally flawed and
factually insufficient, are inherently destructive of separation of powers, and are contrary to the
Framer’s vision of the impeachment power, the Senate should explicitly reject them. Even more
importantly, it should reject them to protect the institution of the Presidency and the Constitution
from such a dangerous precedent for future generations. The Senate should not adopt the
specious and legally vacuous theories of “corrupt motives” and “unilateral control.” Both
theories present the same destructive seed of thought: that a President may be removed from
office for exercising his lawful constitutional privilege and authority.
This partisan political effort undermines the democratic process, both now and in the
future. The House unilaterally re-writes the constitution, without the people’s consent to amend
it. It weaponizes a process that should only be initiated in exceedingly rare circumstances and
never for partisan purposes. This purely partisan attack on President Trump will damage
democracy in America in the worst possible way: it will forever weaken the separation of
powers–the very edifice upon which our democracy stands.
If the Senate does not reject the politically-motivated, manufactured theories upon which
the impeachment articles are based, the House will be emboldened to base future impeachment
efforts upon the same vague, boundless, and destructive theories. Indeed, because congressional
precedents establishing the contours of impeachable conduct are wholly insulated from judicial
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review, it is imperative that the Senate’s basis for rejecting the articles against President Trump
be clear for future generations. We, therefore, urge the Senate to reject the Articles of
Impeachment.
Sincerely,
Alan Wilson
Attorney General of South Carolina
Jeff Landry
Attorney General of Louisiana
Sean Reyes
Attorney General of Utah
Steve Marshall
Attorney General of Alabama
Kevin Clarkson
Attorney General of Alaska
Leslie Rutledge
Attorney General of Arkansas
Ashley Moody
Attorney General of Florida
Chistopher M. Carr
Attorney General of Georgia
Curtis Hill
Attorney General of Indiana
Derek Schmidt
Attorney General of Kansas
Daniel Cameron
Attorney General of Kentucky
Douglas Peterson
Attorney General of Nebraska
Lynn Fitch
Attorney General of Mississippi
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Eric Schmitt
Attorney General of Missouri
Tim Fox
Attorney General of Montana
Dave Yost
Attorney General of Ohio
Mike Hunter
Attorney General of Oklahoma
Jason Ravnsborg
Attorney General of South Dakota
Herbert H. Slatery, III
Attorney General of Tennessee
Ken Paxton
Attorney General of Texas
Patrick Morrisey
Attorney General of West Virginia