Page:Impeachment of Donald J. Trump, President of the United States — Report of the Committee on the Judiciary, House of Representatives.pdf/171

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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.^[1] He also claims that he cannot be investigated—under any circumstance—by state or federal law enforcement while in office.^[2] 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.^[3] 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.^[4] He defies binding Congressional subpoenas on topics of national importance based on his own determination that they lack a legitimate purpose,^[5] and then he sues to block third

↑ 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.
↑ 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 . . . .").
↑ 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.").
↑ 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).
↑ 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").

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[1] 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.

[2] 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 . . . .").

[3] 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.").

[4] 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).

[5] 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").

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