Impeachment

Floor Speech

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Mr. CORNYN. Madam President, over the last months, our country has been consumed by a single word, one that we don't use often in our ordinary parlance. That word, of course, is ``impeachment.'' It has filled our news channels, our Twitter feeds, and dinner conversations. It has led to a wide-ranging debate on everything from the constitutional doctrines of the separation of powers to the due process of law--two concepts which are the most fundamental building blocks of who we are as a nation. It has even prompted those who typically have no interest in politics to tune into C-SPAN or into their favorite cable news channels.

The impeachment of a President of the United States is simply the gravest undertaking we can pursue in this country. It is the nuclear option in our Constitution--the choice of last resort--when a President has committed a crime so serious that Congress must act rather than leave the choice to the voters in the election.

The Framers of the Constitution granted this awesome power to the U.S. Congress and placed their confidence in the Senate to use only when absolutely necessary, when there is no other choice.

This is a rare, historic moment for the Members of this Chamber. This has been faced by the Senate only on two previous occasions during our Constitution's 232-year history--only two times previously. We should be extraordinarily vigilant in ensuring that the impeachment power does not become a regular feature of our differences and, in the process, cheapen the vote of the American people. Soon, Members of the Senate will determine whether, for the first time in our history, a President will be removed from office, and then we will decide whether he will be barred from the ballot in 2020.

The question all Senators have to answer is, Did the President commit, in the words of the Constitution, a high crime and misdemeanor that warrants his removal from office or should he be acquitted of the charges made by the House?

I did my best to listen intently to both sides as they presented their cases during the trial, and I am confident in saying that President Trump should be acquitted and not removed from office.

First, the Constitution gives the Congress the power to impeach and remove a President from office only for treason, bribery, and other high crimes and misdemeanors, but the two Articles of Impeachment passed by the House of Representatives fail to meet that standard.

The first charge, as we know, is abuse of power. House Democrats alleged that the President withheld military aid from Ukraine in exchange for investigations of Joe and Hunter Biden. But they failed to bring forward compelling and unassailable evidence of any crime--again, the Constitution talks about treason, bribery, or other high crimes and misdemeanors; clearly, a criminal standard--and thus failed to meet their burden of proof. Certainly, the House managers did not meet the high burden required to remove the President from office, effectively nullifying the will of tens of millions of Americans just months before the next election. What is more, the House's vague charge in the first article is equivalent to acts considered and rejected by the Framers of our Constitution.

That brings us to the second article we are considering--obstruction of Congress. During the House inquiry, Democrats were upset because some of the President's closest advisers--and their most sought-after witnesses--did not testify. To be clear, some of the executive branch witnesses were among the 13 witnesses whose testimony we did hear during the Senate trial. But for those witnesses for whom it was clear the administration would claim a privilege, almost certainly leading to a long court battle, the House declined to issue the subpoenas and certainly did not seek judicial enforcement. Rather than addressing the privilege claims in court, as happened in the Nixon and Clinton impeachments, the Democratic managers moved to impeach President Trump for obstruction of Congress for protecting the Presidency itself from a partisan abuse of power by the House.

Removing the President from office for asserting long-recognized and constitutionally grounded privileges that have been invoked by both Republican and Democratic Presidents would set a very dangerous precedent and would do violence to the Constitution's separation of powers design. In effect, it would make the Presidency itself subservient to Congress.

The father of our Constitution, James Madison, warned against allowing the impeachment power to create a Presidential tenure at the pleasure of the Senate.

Even more concerning, at every turn throughout this process, the House Democrats violated President Trump's right to due process of law. All American law is built on a constitutional foundation securing basic rights and rules of fairness for a citizen accused of wrongdoing.

It is undisputed that the House excluded the President's legal team from both the closed-door testimony and almost the entirety of the House's 78-day inquiry. They channeled personal, policy, and political grievances and attempted to use the most solemn responsibility of Congress to bring down a political rival in a partisan process.

It is no secret that Democrats' crusade to remove the President began more than 3 years ago on the very day he was inaugurated. On January 20, 2017, the Washington Post ran a story with the headline ``The campaign to impeach President Trump has begun.''

At first, Speaker Pelosi wisely resisted. Less than a year ago, she said, ``Impeachment is so divisive to the country that unless there is something so compelling and overwhelming and bipartisan, I don't think we should go down that path because it divides the country.'' And she was right. But when she couldn't hold back the stampede of her caucus, she did a 180-degree about-face. She encouraged House Democrats to rush through an impeachment inquiry before an arbitrary Christmas deadline.

In the end, the articles passed with support from only a single party--not bipartisan. The bipartisanship the Speaker claimed was necessary was actually opposed to the impeachment of the President; that is, Democrats and Republicans voted in opposition to the Articles of Impeachment. Only Democrats voted for the Articles of Impeachment in the House.

Once the articles finally made it to the Senate after a confusing, 28-day delay, Speaker Pelosi tried to have Senator Schumer--the Democratic leader here--use Speaker Pelosi's playbook, and he staged a number of political votes every Member of the Senate knew would fail, just so he could secure some perceived political advantage against Republican Senators in the 2020 election.

What should be a solemn, constitutional undertaking became partisan guerilla warfare to take down President Trump and make Senator Schumer the next majority leader of the U.S. Senate.

All of this was done on the eve of an election and just days shy of the first primary in Iowa.

Well, to say the timing was a coincidence would be laughable. This partisan impeachment process could not only remove the President from office, it would also potentially prevent his name from appearing on the ballot in November. We are only 9 months away from an election--9 months away from the American people voting on the direction of our country--but our Democratic colleagues don't trust the American people, so they have taken matters into their own hands.

This politically motivated impeachment sets a dangerous precedent. This is a very important point. This is not just about President Trump; this is about the Office of the Presidency and what precedent a conviction and removal would set for our Constitution and for our future. If successful, this would give a green light to future Congresses to weaponize impeachment to defeat a political opponent for any action--even a failure to kowtow to Congress's wishes.

Impeachment is a profoundly serious matter that must be handled as such. It cannot become the Hail Mary pass of a party to remove a President, effectively nullifying an election and interfering in the next.

I believe--I think we should all believe--that the results of the next election should be decided by the American people, not by Congress.

The decision to remove a President from office requires undeniable evidence of a high crime. That is the language chosen by the Framers of our Constitution. But despite our colleagues' best attempts, the facts they presented simply don't add up to that standard.

House managers failed to meet their heavy burden of proof that President Trump, beyond a reasonable doubt, committed a crime, let alone a high crime; therefore, I will not vote to convict the President.

I hope our Democratic colleagues will finally accept the result of this trial--just as they have not accepted the result of the 2016 election--and I hope they won't take the advice of Congresswoman Waters, Maxine Waters in the House, and open a second impeachment inquiry. It is time for our country to come together to heal the wounds that divide us and to get the people's work done.

There is no doubt, as Speaker Pelosi observed in March of 2019, that impeachment is a source of division in our country, and it is also a period of great sadness. If this partisan impeachment were to succeed, my greatest fear is it would become a routine process for every President who serves with a House majority of the opposite party, and we would find ourselves in a recurring impeachment nightmare every time we elect a new President.

Our country is deeply divided and damaged by this partisan impeachment process. It is time for us to bring it to a close and to let the wounds from this unnecessary and misguided episode heal.

This statement seeks to supplement the remarks that I made on the Senate floor on Wednesday, February 5, 2020. It includes some of my observations as a former judge on some of the complicated constitutional, legal, and factual issues associated with this impeachment proceeding and its implications for future presidential impeachments. (1) What is the Constitutional standard?

In America, all government derives its power, in the words of the Declaration of Independence, ``from the consent of the governed.'' \1\ This is not just a statement of national policy, but a statement about legitimacy.

Elections are the principal means of conferring legitimacy by the consent of the governed. Impeachments, by the House and tried in the Senate, while conferring authority on 535 Members of Congress to nullify one election and disqualify a convicted President from appearing on a future ballot, exercise delegated power from the governed, much attenuated from the direct consent provided by an election. It seems obvious that an impeachment of a President during an election year should give rise to heightened concerns about legitimacy.

While there was extensive argument on what the Framers intended the impeachment standard to be, suffice it to say, they believed it should be serious enough to warrant removal, and disqualification from future office, of a duly elected President.

The role of impeachments in a constitutional republic like the United States was borrowed, to some extent, from our British forebears. But it was not a wholesale acceptance of the British model, with its parliamentary system where entire governments can be removed on a vote of no confidence, but rather a distinctly Americanized system that purposefully created a strong and co-equal chief executive, elected by the people for a definite term, with a narrowed scope of impeachable offenses for the President.

Under the U.S. Constitution, Presidents may be impeached for ``treason, bribery, and other high crimes and misdemeanors.'' Due to the rarity of presidential impeachments (three in 232 years), the age of some precedents (dating back to the Johnson impeachment of 1868), and the diversity of impeachment cases (and in particular, the significant difference between the impeachment of judges and Presidents), there remains quite a bit of debate about precisely what actions by a President are impeachable.

Some argue a crime is not required, although all previous presidential impeachments charged a crime. Some argue that not all crimes are impeachable, only serious crimes can be ``high'' crimes. Some categories, including ``malversation,'' ``neglect of duty,'' ``corruption,'' ``malpractice,'' and ``maladministration'' were considered and rejected by the Framers.\2\ (2) Abuse of power

The President's lawyers charge that ``abuse of power'' alleged in the first Article of Impeachment is not a crime, much less a ``high'' crime, nor a violation of established law. This argument raises Due Process of Law concerns with regard to notice of what is prohibited. As Justice Antonin Scalia observed shortly before his death in the criminal context, ``invoking so shapeless a provision to condemn someone . . . does not comport with the Constitution's guarantee of due process.'' \3\

Moreover, they argue that ``abuse of power'' is tantamount to ``maladministration,'' which was rejected by the Framers. There is little doubt that a vague and ambiguous charge in an Article of Impeachment can be a generalized accusation into which the House can lump all of their political, policy, and personal differences with a President. This should be avoided.

The House Managers say no crime is required for impeachment, and that abuse of power, which incorporates a host of nefarious acts, is all that is required. No violation of criminal statutes is alleged, nor required they say, and they disagree that abuse of power equates with ``maladministration.'' They point to Alexander Hamilton's statement in Federalist 65 that impeachable offenses are ``those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.'' (3) Obstruction of Congress.

The House Permanent Select Committee on Intelligence issued dozens of subpoenas and heard testimony from 17 witnesses. As to other witness subpoenas issued to members of the Trump Administration, White House Counsel Pat Cipollone argued in his October 8, 2019 letter to Speaker of the House Pelosi that any subpoenas issued before passage of a formal resolution of the House establishing an impeachment inquiry were constitutionally invalid and a violation of due process. The House Managers rely on the Constitution's grant of the ``sole power of impeachment'' to the House and argue that no authorizing resolution was required. Essentially, they argue that under the Constitution the House can run an impeachment inquiry any way the House wants and no one can complain.

No committee of the House was officially delegated the House's impeachment authority until October 31, 2019, when the House passed House Resolution 660 directing ``the Permanent Select Committee on Intelligence and the Committees on Financial Services, Foreign Affairs, the Judiciary, Oversight and Reform, and Ways and Means to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Donald John Trump, President of the United States.''

Neither the House's theory that it could act without a delegation resolution, nor the White House Counsel's argument that subpoenas were void without one was presented to a court during this impeachment inquiry.\4\ In fact, the House intentionally avoided litigation because, as House Manager Adam Schiff stated, it would slow down their inquiry.

One example makes this point. Charles Kupperman was a deputy to former National Security Advisor John Bolton. Other than Bolton himself, Kupperman was one of the officials most likely to have direct knowledge of an alleged quid pro quo on aid to Ukraine. But after the House subpoenaed him last fall, Kupperman went to court and asked for a resolution of the competing claims between the President and the House. Rather than wait for a judicial determination in this interbranch dispute, the House withdrew its subpoena and affirmatively disclaimed any desire to pursue Kupperman's testimony in the future.\5\ The House also decided not to subpoena Bolton or any other key witnesses in the administration.

Instead, the House elected to push through impeachment with an abbreviated period of roughly three months and declared any delay by President Trump, even to seek judicial review, to be obstruction of Congress and a high crime and misdemeanor. The Administration is currently in court challenging demands for witnesses and documents. Just a couple weeks ago, the Supreme Court accepted such cases for review and stayed the lower court decisions ordering the production of President Trump's financial records from third parties.\6\ Still, the House impeached President Trump before the Supreme Court or other federal courts could rule on the merits of claims of presidential privileges and immunities in this impeachment inquiry.

The essence of the House's second Article of Impeachment is that it is Obstruction of Congress to decline to voluntarily submit to the House's inquiry and forgo any claims of presidential privileges or immunities. One interpretation of these facts is that the House simply gave up pursuing the testimony in the interest of speed. While undoubtedly litigation would have delayed for a time the House's impeachment inquiry if they were determined to secure the testimony they initially sought, it is clear that the President, and not the witnesses, would assert claims of executive privilege or absolute testimony immunity to protect the Office of the Presidency. These claims are constitutionally based in the separation of powers, long- recognized by the Department of Justice's Office of Legal Counsel, and repeatedly asserted by both Republican and Democratic Administrations in countless disputes with Congress. And since the House did not pursue the testimony originally subpoenaed, the issue of presidential privileges or immunity was never decided.\7\

But that is not all. Representative Eric Swalwell recently declared that not only should a sitting president be impeached if he or she goes to the courts rather than submit to Congress, but that contesting demands for evidence is actually evidence of guilt on all of the charged offenses. Congressman Swalwell claimed ``we can only conclude that you are guilty'' if someone refuses to give testimony or documents to Congress.\8\ So much for the presumption of innocence and other constitutional rights encompassed by the Constitution's guarantee of Due Process of Law.

It is an odd argument that a person accused of running a red light has more legal rights than a President being impeached. (4) The House's impeachment inquiry

The House Managers argue that since Article 1, Section 2 of the Constitution gives the House the ``sole power of impeachment,'' the President cannot question the procedures as a denial of Due Process of Law or authority by which that House produced the Articles. What they don't explain is how House rules can preempt the Constitution. They can't. As Chief Justice John Marshall wrote in Marbury v. Madison, ``the Constitution is superior to any ordinary act of the legislature, [and] the Constitution, and not such ordinary act, must govern the case to which they both apply.'' \9\

While the Constitution gives the House the ``sole power to impeach'' it gives the Senate the ``sole power to try all impeachments.'' Some have analogized the House's role to a grand jury in criminal cases. Generally speaking, a grand jury may issue an indictment, also known as a ``true bill,'' only if it finds, based upon the evidence that has been presented to it, that there is probable cause to believe that a crime has been committed by a criminal suspect.

But impeachment is not, strictly speaking, a criminal case, even though the Constitution speaks in terms of ``conviction'' and the impeachment standard is ``treason, bribery, or other high crimes and misdemeanors.'' Contrast that with Article 1, Section 3, Clause 7: ``the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.'' In other words, the constitutional prohibition of double jeopardy does not apply.

Neither are Senators jurors in the usual sense of being ``disinterested'' in the facts or outcome. Senators take the following oath: ``Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, President of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God?''

Hamilton wrote in Federalist 65 the Senate was chosen as the tribunal for courts of impeachment because:

``Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?''

Because impeachment is neither civil nor criminal in the usual sense, it must be something different. President Trump's counsel referred to the Senate role as sitting in a ``High Court of Impeachment,'' and ``Democracy's ultimate court.'' Hamilton, in Federalist 65, called it ``a method of national inquest.''

One of most significant disputes in the Senate impeachment trial of President Trump was the duty of the House to develop evidence during its impeachment inquiry and the duty of the Senate when new evidence is sought by one or both parties during the trial. In addressing this issue, it is helpful to remind ourselves that the American system of justice is adversarial in nature. That is, it is a system that ``resolves disputes by presenting conflicting views of fact and law to an impartial and relatively passive arbiter, who decides which side wins what.'' \10\ This system ``consists of a core of basic rights that recognize and protect the dignity of the individual in a free society.'' \11\

The rights that comprise the adversary system include . . . the rights to call and to confront witnesses, and the right to require the government to prove guilt beyond a reasonable doubt. . . . These rights, and others, are also included in the broad and fundamental concept [of] due process of law--a concept which itself has been substantially equated with the adversary system.'' \12\

The adversarial nature of these proceedings means that the House Managers were obligated to develop their case, including the evidence, in the House inquiry, and not rely on the Senate to do so. In typical court proceedings, the failure of the prosecutor to present sufficient evidence at trial results in dismissal, not in open-ended discovery or a re-opened investigation.

President Trump's lawyers argued that there were three main errors in the House proceedings:

(1) The House did not initially authorize the impeachment inquiry, thus delegating its ``sole power'' to the Intelligence Committee, which issued dozens of subpoenas the President deemed invalid;

(2) Numerous due process violations during the Intelligence Committee's proceedings, including denial of notice, counsel, cross examination, and the opportunity to call witnesses;

(3) And, finally, that as an interested fact witness regarding Intelligence Committee contacts with the whistleblower, Chairman Schiff could not be said to have fairly conducted the House investigation.

Again, the House Managers argue that the method by which the Articles of Impeachment were approved in the House cannot be challenged in the Senate trial given the House's ``sole power to impeach.''

Ominously, the President's lawyers argue that whatever precedent was set by the Senate in this trial would be the ``new normal'' and govern not just this trial but all impeachment trials in the future. They also argue that to make impeachment ``too easy'' in the House will result in more frequent presidential impeachments being approved by this and future Houses, which the Senate would then be obligated to try. Similarly, they argue that the Senate should not reward the failure of the House to litigate questions of presidential privileges and immunities in their impeachment inquiry and transfer that burden to the Senate. An important difference between the House and Senate is that House inquiries can be delegated to committees while the House conducts other business; not so in the Senate, which must sit as a court of impeachment until the trial is completed.

Thus, during a Senate impeachment trial, absent unanimous consent--unlikely given the contentious nature of the proceedings--the Senate is precluded from any other business, even during delays while executive privilege and similar issues are litigated in the courts. Given that the House chose to not seek judicial enforcement of subpoenas during its impeachment inquiry because of concerns about delay, the question is do they have a right to do so during the Senate trial? If so, the President's lawyers claim, such an outcome would significantly protract a Senate trial and permanently alter the relationship between the House and Senate in impeachment proceedings. Indeed, there is a strong textual and structural argument that the Constitution prohibits the Senate from performing the investigative role assigned to the House.

The House Managers contend that Chief Justice John Roberts could rule on questions of privilege while presiding over the impeachment trial, avoiding delay during litigation, but the Chief Justice made clear his was not a judicial role in the usual sense.\13\ When the issue of whether the Chief Justice would be a tie-breaking vote came up during the trial, he said: ``I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed.'' So it is that the Senate, not the Chief Justice presiding in an essentially ceremonial role during impeachment trials, determines disputed issues. This conclusion is further supported by the rule that a majority of Senators are empowered to effectively ``overrule'' an initial determination by the presiding officer. In the words of Senate Impeachment Rule Seven: ``The presiding officer may, in the first instance, submit to the Senate, without a division, all questions of evidence and incidental questions; but the same shall, on the demand of one-fifth of the members present, be decided by yeas and nays.'' The unseemliness of imposing this role on the Chief Justice is obvious and should be avoided. (5) The Facts

Of course, the main factual contentions of the House Managers involve President Trump's interest in an investigation of Hunter and Joe Biden's role in Ukraine. They allege the President's ``corrupt'' motive to dig up dirt on a potential political rival is an abuse of power. The President's lawyers argue that it is clearly within the President's authority to investigate corruption and leverage foreign aid in order to combat it. Even if it incidentally helps the President electorally, they argue it is not a ``high crime and misdemeanor.''

But there are more basic factual conundrums. Any investigations discussed in the July 25 conversation between Ukrainian President Volodymyr Zelensky and President Trump never occurred. And the foreign aid, including lethal defensive aid and weapons, was paused for just a short time and delivered on September 11, 2019, before the deadline of September 30.

The abuse of power alleged was based on desired investigations and the withholding of foreign aid. But neither, ultimately, occurred. This is similar to an ``attempted'' offense under the criminal law. Indeed, the law criminalizes a host of attempted offenses. But the Articles of Impeachment do not charge President Trump with any crimes, including any ``attempted'' offenses. (6) Burden of Proof

President Trump's counsel argued that the appropriate burden of proof in this quasi-criminal trial is ``proof beyond a reasonable doubt.'' This point was not seriously contested by the House Managers who repeatedly claimed the evidence in support of the Articles of Impeachment was ``overwhelming.'' Manager Jerry Nadler went further and claimed, repeatedly, that the evidence produced was ``conclusive'' and ``uncontested.'' Manager Zoe Lofgren argued that Senators could use, literally, any standard they wished.

This is significant on the issue of the President's motive in seeking a corruption investigation from President Zelensky, one that included former Vice President Biden and his son, Hunter, and the company on whose board he served, Burisma. The House Managers argued, repeatedly, that President Trump did not care about Ukrainian corruption or burden sharing with allies and that his sole motive was to get information damaging to a political rival, Joe Biden.

President Trump's lawyers contend that he has a record of concerns about burden sharing with allies, as well as corruption, and produced several examples. At most, they say, his was a mixed motive--partly policy, partly political--and in any event it was not a crime and thus not impeachable.

Therefore, the question arises: did the House Managers prove beyond a reasonable doubt that the sole motive for pausing military aid to Ukraine was for his personal benefit? Or, did they fail to meet their burden? Conclusion

Ultimately, the House Managers failed to prove beyond a reasonable doubt that President Trump's sole motive for seeking any corruption investigation in Ukraine, including of Hunter Biden, was for a personal political benefit. This is particularly true given the evidence of President Trump's documented interest in financial burden sharing with allies, and the widely shared concerns, including by the Obama/Biden Administration, with corruption in Ukraine and the need to protect American taxpayers.

Even if President Trump had mixed motives--a public interest combined with a personal interest--the fact is the investigations never occurred and the aid to Ukraine was paused but delivered on schedule.

Moreover, none of the above conduct rises to the level of a ``high crime and misdemeanor.'' The first article, Abuse of Power, which charges no crime or violation of existing law is too vague and ambiguous to meet the Constitution's requirements. It is simply a conclusion into which any disagreeable conduct can be lumped.

Finally, the second article, Obstruction of Congress, cannot be sustained on this record. The President's counsel argued persuasively that its subpoenas were largely unauthorized in the absence of a House resolution delegating its authority to a House committee. What's more, the House never sought to enforce its subpoenas in the courts, essentially giving up efforts to do so in favor of expediting the House impeachment inquiry. The desire to meet an arbitrary deadline before Christmas was prioritized over a judicial determination in the interbranch dispute. endnotes

1. See Declaration of Independence (``We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their powers from the consent of the government.'')

2. See The Records of the Federal Convention of 1787 (Max Farrand, ed., 1911).

3. Johnson v. United States, 135 S.Ct. 2551, 2560 (2015). Chief Justice Roberts similarly relied on Justice Scalia's views when he raised due process concerns in the context of an amorphous definition of corruption in the criminal prosecution of public officials. McDonnell v. United States, 136 S.Ct. 2355, 2373 (2016).

4. A variation of these arguments came up in active litigation related to the House's access to testimony and evidence connected with Special Counsel Mueller's investigation. The district courts rejected the White House Counsel's position. See House of Representatives v. McGahn, No. 1:19-cv-02379-KBJ, 2019 WL 6312011 (D.D.C. Nov. 25, 2019) and In re Application of House of Representatives for Release of Certain Grand Jury Materials, No. 1:19-gj-00048, 2019 WL 5485221 (D.D.C. Oct. 25, 2019). But those decisions are now on appeal, and the D.C. Circuit heard argument in those cases on January 3, 2020.

5. See Kupperman v. House of Representatives, 1:19-cv- 03224-RJL, 2019 WL 729359 (D.D.C. Dec. 30, 2019).

6. See Order of Supreme Court dated December 13, 2019 granting certiorari in Trump v. Mazars USA, 940 F.3d 710 (D.C. Cir. 2019); Trump v. Deutsche Bank, 943 F.3d 627 (2d Cir. 2019), and Trump v. Vance, 941 F.3d 631 (2d Cir. 2019). The Supreme Court will hear argument in these cases on March 31, 2020.

7. Issues associated with executive privilege were litigated and resolved in the courts well in advance of the Nixon and Clinton impeachments.

8. See December 17, 2019 Interview of Congressman Eric Swalwell by CNN's Wolf Blitzer (``Unless you send those [witnesses] to us, we can only conclude that you are guilty, because in America, innocent men do not hide and conceal evidence. In fact, . . . they do just the opposite, they are forthcoming and they want to cooperate, and the President is acting like a very guilty person.'')

9. See Marbury v. Madison, 5 U.S. 137, 138 (1803) (``An act of congress repugnant to the constitution cannot become a law.'')

10. Monroe H. Freeman, ``Our Constitutionalized Adversary System,'' 1 Chapman Law Rev. 57, 57 (1998). Justice Scalia noted that the adversarial system is founded on ``the presence of a judge who does not (as the inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties.'' McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991).

11. Id.

12. Id.

13. As even one of the witnesses who testified in the House has recognized, the Constitution designates the Chief Justice to serve as presiding officer of the Senate for presidential impeachments because the Framers understood the obvious conflict of interest and tension in allowing the Vice President to preside over the trial of the President. Michael Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Texas Law Review 1, 98 (1989).

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