Trial Memorandum of President Donald J. Trump
January 20, 2020

The Articles of Impeachment now before the Senate are an affront to the Constitution and to our democratic institutions.

The Articles themselves—and the rigged process that brought them here—are a brazenly political act by House Democrats that must be rejected. They debase the grave power of impeachment and disdain the solemn responsibility that power entails. Anyone having the most basic respect for the sovereign will of the American people would shudder at the enormity of casting a vote to impeach a duly elected President.

By contrast, upon tallying their votes, House Democrats jeered until they were scolded into silence by the Speaker.

The process that brought the articles here violated every precedent and every principle of fairness followed in impeachment inquiries for more than 150 years.

Even so, all that House Democrats have succeeded in proving is that the President did absolutely nothing wrong.

All of this is a dangerous perversion of the Constitution that the Senate should swiftly and roundly condemn.

To view the full trial memorandum click <Source: White House>.

EXECUTIVE SUMMARY (Excerpt)

After focus-group testing various charges for weeks, House Democrats settled on two
flimsy Articles of Impeachment that allege no crime or violation of law whatsoever—much less “high Crimes and Misdemeanors,” as required by the Constitution. They do not remotely approach the constitutional threshold for removing a President from office. The diluted standard asserted here would permanently weaken the Presidency and forever alter the balance among the branches of government in a manner that offends the constitutional design established by the Founders.

House Democrats jettisoned all precedent and principle because their impeachment inquisition was never really about discovering the truth or conducting a fair investigation. Instead, House Democrats were determined from the outset to find some way—any way—to corrupt the extraordinary power of impeachment for use as a political tool to overturn the result of the 2016 election and to interfere in the 2020 election.

All of this is a dangerous perversion of the Constitution that the Senate should swiftly and roundly condemn. 

I. The Articles Fail Because They Do Not Identify Any Impeachable Offense.

A. House Democrats’ Theory of “Abuse of Power” Is Not an Impeachable Offense.

House Democrats’ novel theory of “abuse of power” improperly supplants the standard of “high Crimes and Misdemeanors” with a made-up theory that would permanently weaken the Presidency by effectively permitting impeachments based merely on policy disagreements.

B. House Democrats’ Theory of “Obstruction of Congress” Is Not an Impeachable Offense.

House Democrats’ “obstruction of Congress” claim is frivolous and dangerous. House Democrats propose removing the President from office because he asserted legal rights and privileges of the Executive Branch against defective subpoenas—based on advice from the Department of Justice. Accepting that theory would do lasting damage to the separation of powers.

II. The Impeachment Inquiry in the House Was Irredeemably Flawed.

A. House Democrats’ Inquiry Violated All Precedent and Due Process.

1. The process that resulted in these Articles of Impeachment was flawed from the start. Since the Founding of the Republic, the House has never launched an impeachment inquiry against a President without a vote of the full House authorizing it.

And there is good reason for that. No committee can investigate pursuant to powers assigned by the Constitution to the House— including the “sole Power of Impeachment”—unless the House has voted to delegate authority to the committee.

Here, it was emblematic of the lack of seriousness that characterized this whole process that House Democrats cast law and history aside and started their purported inquiry with nothing more than a press conference. On that authority alone, they issued nearly two dozen subpoenas that OLC [White House Office of Legal Counsel] determined were unauthorized and invalid. The full House did not vote to authorize the inquiry until five weeks later when it adopted House Resolution 660 on October 31, 2019. That belated action was a telling admission that the process was unauthorized.

2. Next, House Democrats concocted an unheard of procedure that denied the President any semblance of fair process. The proceedings began with secret hearings in a basement bunker before three committees under the direction of Chairman Schiff of the House Permanent Select Committee on Intelligence (HPSCI). The President was denied any right to participate at all. He was denied the right to have counsel present, to cross examine witnesses, to call witnesses, and to see and present evidence. Meanwhile, House Democrats selectively leaked distorted versions of the secret testimony to compliant members of the press, who happily fed the public a false narrative about the President.

Then, House Democrats moved on to a true show trial as they brought their hand-picked witnesses, whose testimony had already been set in private, before the cameras to present prescreened testimony to the public. There, before HPSCI, they continued to deny the President any rights. He could not be represented by counsel, could not present evidence or witnesses, and could not cross examine witnesses.'

This process not only violated every precedent from the Nixon and Clinton impeachment inquiries, it violated every principle of justice and fairness known to our legal tradition. For more than 250 years, the common law system has regarded cross-examination as the “greatest legal engine ever invented for the discovery of truth.” House Democrats denied the President that right and every other right because they were not interested in the truth.

Their only interest was securing an impeachment, and they knew that a fair process could not get them there. When the impeachment stage-show moved on to the Judiciary Committee, House Democrats again denied the President his rights. The Committee had already decided to forego fact-finding and to adopt the one-sided record from HPSCI’s ex parte hearings. Worse, Speaker Nancy Pelosi had already instructed the Committee to draft articles of impeachment. The only role for the Committee was to ram through the articles to secure a House vote by Christmas. There could not have been a more blatant admission that evidence did not matter, the process was rigged, and impeachment was a pre-ordained result.

All of this reflected shameful hypocrisy from House Democrat leaders, who for decades had insisted on the importance of due process protections in an impeachment inquiry. Chairman Nadler himself has explained that a House impeachment inquiry “demands a rigorous level of due process.”

To view the full trial memorandum click <Source: White House>.