THE WHITE HOUSE
WASHINGTON
October 8, 2019
The Honorable Nancy Pelosi
Speaker
House of Representatives
Washington, D.C. 20515
The Honorable Eliot L. Engel
Chairman
House Foreign Affairs Committee
Washington, D.C. 20515
Dear Madam Speaker and Messrs. Chairmen:
The Honorable Adam B. Schiff
Chairman
House Permanent Select Committee on
Intelligence
Washington, D.C. 20515
The Honorable Elijah E. Cummings
Chairman
House Committee on Oversight and Reform
Washington, D.C. 20515
I 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 maimer that violates fundamental fairness
and constitutionally mandated due process.
For 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
tlu·eatening 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 eve1y 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.
Put 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 ifwe don't impeach the President, he will get
reelected." 1 Your highly partisan and unconstitutional effort tlu·eatens 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).
Speaker Pelosi, and Chairmen Engel, Schiff, and
Cummings
Page 2
For his part, President Trump took the unprecedented step of providing the public
transparency hy 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 Schiffs 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 all up.
In addition, information has recently come to light that the whistleblower had contact
with Chairman Schiffs 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 "investigator."
For 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.
Your 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,
20 I 9).
3 Press Release, Nancy Pelosi, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019).
Speaker Pelosi, and Chairmen Engel, Schiff, and
Cummings
Page 3
history of the Nation,4 and lacks the necessary authorization for a valid impeachment
proceeding. 5
The Committees' inquity 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.
These 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.
4 Since the Founding of the Republic, under unbroken practice, the House has never undetiaken the solemn
responsibility of an impeachment inquiry directed at the President without first adopting a resolution authorizing
a committee to begin the inquity. 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,
I 05th Cong. (1998); H.R. Res. 525, I 05th Cong. (1998); III Hinds' Precedents §§ 2400-02, 2408, 2412. 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 then satisfied that requirement by adopting
H.R. Res. 803, 93rd Cong. (1974),
5 Chairman 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. HI 0018 (daily ed. Oct. 8, 1998) (statement of Rep. Jerrold Nadler). Here, the House has dispensed
with any vote and any debate "t {II/,
6 Press Release, Nancy Pelosi, Transcript of Pelosi Weekly Press Conference Today (Oct. 2, 2019).
7 Examining the A/legations of Misconduct Against IRS Commissioner John Koskinen (Part II): Hearing Before
the H. Comm. on the J11diciG1J', 114th Cong. 3 (2016) (statement of Rep. Jerrold Nadler); Background and
HistoJJ' of Impeachment: Hearing Before the Subcomm. on the Co11stitutio11 of the H. Comm. on the Judiciary,
105th Cong. 17 (1998) (statement of Rep, Jerrold Nadler).
8 See, e.g., Watkinsv. United States, 354 U.S. 178,188 (1957); Quinnv. United States, 349 U.S. 155,161 (1955).
9 See Hastings v. United Stales, 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).
10 See, e.g., III Hinds' Precedents § 2445.
Speaker Pelosi, and Chairmen Engel, Schiff, and
Cummings
Page4
To 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.
In 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.
As 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
obstrnction." 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
The 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 instrncted not to appear or not to provide particular testimony before
Congress based on privileges or immunities of the Executive Branch cannot be punished for
11 H.R. Res. 581, 105th Cong. (1998); H.R. Res. 803, 93rd Cong. (1974).
12 Letter from Eliot L. Engel, Chairman, House Committee on Foreign Affairs, et al., to George P. Kent, Deputy
Assistant Secretary, U.S. Department of State I (Sept. 27, 2019).
13 See Letter from Eliot L. Engel, Chairman, House Committee on Foreign Affairs, et al., to John J. Sullivan,
Deputy Secretary of State 2-3 (Oct. I, 2019).
Speaker Pelosi, and Chairmen Engel, Schiff, and
Cummings
Page 5
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-arm 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 Americans.
II.
The Invalid "Impeachment Inquiry" Plainly Seeks To Reverse the Election of 2016
and To Influence the Election of 2020.
The effort to impeach President Tnnnp-----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.
Democrats themselves used to recognize the dire implications of impeachment for the
Nation. For example, in the past, Chairman Nadler has explained:
The 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
impeaclnnent supported by one of our major political parties and opposed by
another. Such an impeachment will produce divisiveness and bitterness in our
14 See, e.g., Testimonial Immunity Before Congress a/the Former Counsel to the President, 43 Op. O.L.C. _, * 19
(May 20, 2019); Prosecution/or Contempt a/Congress of an Executive Branch Official Who Has Asserted a
Claim of Executive Privilege, 8 Op. O.L.C. IO I, I 02, 140 (l 984)("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,,,)
15 At/empted Exclusion of Agency Counsel fi'om Congressional Depositions of Agency Employees, 43 Op. O.L.C.
_, * 1-2 (May 23, 2019).
16 See President Donald J. Tmmp, Statement by the President on Signing the Consolidated Appropriations Act,
2019 (Feb. 15, 20 19); Authority of Agency Officials To Prohibit Employees From Providing !,?formation to
Congress, 28 Op, O.L.C. 79, 80 (2004).
17 See 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 .... ").
Speaker Pelosi, and Chairmen Engel, Schiff, and
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Page 6
politics for years to come, and will call into question the very legitimacy of
our political institutions. 18
Unfortunately, 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.
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. 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
Perhaps 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).
19 The Federalist No. 65 (Alexander Hamilton).
20 See id.
21 Press Release, Nancy Pelosi, Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 20 19).
22 President Trump Meeting with Ukrainian President, C-SPAN (Sept. 25, 2019).
23 Statement of Kerri Kupec, Director, Office of Public Affairs, Dept. of Justice (Sept. 25, 2019) ("[T]he
Department's Criminal Division reviewed the offieial reeord of the eall and determined, based on the faels and
applieable law, that !here was no eampaign finance violation and that no further aetion was warranted.").
24 See Whistleblower Disclosure: Hearing Before the H Select Comm. 011 Intel., I 16th Cong. (Sept. 26, 2019)
(statement of Rep. Adam Schiff).
Speaker Pelosi, and Chairmen Engel, Schiff, and
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powerfully 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.
The real problem, as we are now learning, is that Chairman Schiffs 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
Now, 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.
All 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.
*
*
*
Given that your inquiry lacks any legitimate constitutional foundation, any pretense of
fairness, or even the most elementary due process protections, the Executive Branch carmot 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.
Your 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 Adam Schiff, MSNBC (Sept. l 7, 2019).
26 Julian Barnes, et al., Schiff Got Early Acco1111t of Acc11satio11s as Whistle-Blower's Co11cerns Grew, N.Y. Times
(Oct. 2, 20 l 9).
27 Glenn Kessler, Schiff's False Claim His Co111111i//ee Had Not Spoke11 to the Whistleblower, Wash, Post (Oct. 4,
2019).
Speaker Pelosi, and Chairmen Engel, Schiff, and
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Page 8
as a matter of the established oversight process. 28 Respectfolly, 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 appropriate."29 The 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.
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. 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.
cc:
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
28 Letter from Elijah E. Cummings, Chairman, House Committee on Oversight and Government Reform, et al., to
John Michael Mulvaney, Acting ChiefofStaffto the President 3 (Oct. 4, 2019).
29 Id. at I.
)
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