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Impeachment Precedent

I. Introduction

President Trump and congressional Republican leaders claim that the President was denied a fair opportunity to defend himself in the first of the two House impeachment proceedings against him. President Trump said, “We’re not entitled to lawyers. We’re not entitled to witnesses. We’re not entitled to anything in the House.” Senate Judiciary Committee Chairman Lindsey Graham introduced a resolution stating that the House has “abandon[ed] more than a century’s worth of precedent and tradition in impeachment proceedings.” These assertions, however, find no support in either the rules or practices applied during the House impeachment proceedings against President Trump. 

To the contrary, the rules and practices followed in the House inquiry mirror those governing the presidential impeachment inquiries for President Richard Nixon in 1973-74 and President William Clinton in 1998-99. In all three impeachment proceedings, the House Judiciary Committee allowed the President to have counsel attend hearings, to file written briefing and present oral argument, to suggest relevant witnesses and identify additional evidence, and to question witnesses on relevant topics. In all three impeachment proceedings, the primary fact-finding investigations occurred outside of the House Judiciary Committee. And in all three impeachment proceedings, the entities leading the fact-finding investigations followed their normal procedures and did not extend any special rights of participation to the President.

The main points of divergence from the prior impeachment precedent stem from President Trump’s conduct, not Congress’. In contrast to the approach taken by President Nixon and President Clinton, President Trump refused the invitation to participate in the House Judiciary Committee proceedings. Further, unlike either Presidents Nixon or Clinton, President Trump instructed his administration to refuse to cooperate in the fact-finding investigation.

II. The Nixon Impeachment

On February 6, 1974, the House explicitly authorized the House Judiciary Committee’s impeachment investigation on President Nixon. The House Judiciary Committee took into account fact-finding that had been conducted by other bodies. This included the Senate Select Committee on Presidential Campaign Activities, which had been established a year earlier on February 7, 1973, and Special Prosecutor Leon Jaworski, who delivered his “roadmap” to the Committee in March 1974. The Judiciary Committee recommended articles of impeachment on July 27, 29, and 30, 1974, but the House never voted on them because President Nixon resigned on August 9, 1974.

A. The Fact-Finding Investigations

President Nixon cooperated extensively, though not completely, with the fact-finding investigations that preceded the impeachment proceedings in the House Judiciary Committee. President Nixon publicly waived executive privilege with respect to his aides’ testimony on May 22, 1973. As a result, the following current and former aides and cabinet members for President Nixon testified publicly before the Senate Select Committee:

Even President Nixon’s former Vice President, Spiro Agnew, was interviewed by the Senate Select Committee.  

Likewise, President Nixon cooperated extensively, but not completely, with the Special Prosecutors’ investigation. The President’s aides testified before the grand jury, and he permitted the Special Prosecutors’ office to gather significant amounts of documentary evidence through subpoenas and voluntary document requests. 

President Nixon did object to requests to disclose information about conversations he had with his advisors. Specifically, he attempted to quash subpoenas from the Select Committee and the Special Prosecutor that sought tape recordings of these conversations. He fought the Select Committee’s requests up to the D.C. Circuit, which rejected the Select Committee’s claim largely because, by the time of the court’s ruling in May 1974, the Special Prosecutor had already provided the requested tapes to the House Judiciary Committee, which made the Select Committee’s oversight need “merely cumulative.” As for the Special Prosecutors’ investigations, the President fought disclosure of certain documents and tapes before the Supreme Court, where he lost in a unanimous decision.  

President Nixon was not given any special rights to participate in the investigation by the Senate Select Committee. He also had no rights to call or cross-examine witnesses in the Special Prosecutors’ investigations.

B. The House Judiciary Committee Proceedings 

In the Nixon impeachment inquiry before the House Judiciary Committee, the Committee unanimously approved a set of procedures that permitted the President’s counsel, James St. Clair, to participate.  There were limits, however, on the President’s participation. President Nixon offered to answer written interrogatories under oath and to meet with and be questioned by the Chair and Ranking Member of the Committee, but the Committee declined to allow the President to participate in the process in these ways.  

Unlike the proceedings before the House Judiciary Committee in the cases of Presidents Clinton and Trump, most of the proceedings before the House Judiciary Committee in the Nixon impeachment occurred in executive sessions that were closed to the public and the media. These executive sessions began with presentations in May and June 1974 of “Statements of Information.” The first set of statements were presented by the Judiciary Committee staff and they summarized the evidence it had collected. This included the information gathered by the Senate Select Committee, including its computerized files, which the Select Committee voted to transfer to the Judiciary Committee. It also included the Watergate Grand Jury’s Report and Recommendation (and supporting documents), which Special Counsel Jaworski had received permission from the court to transfer to the Judiciary Committee.  

The President’s lawyer, Mr. St. Clair, attended the Judiciary Committee’s executive sessions during which the Committee heard the staff’s presentations. He then was given two days to present his own Statements of Information to the Committee. 

After the presentations by staff and Mr. St. Clair, the Committee received hearing testimony from nine witnesses in executive session in July 1974. These included five witnesses suggested by President Nixon. President Nixon had initially requested six witnesses, but the Committee did not call his former Chief of Staff, H.R. Haldeman, who had notified the Committee that he was considering invoking the Fifth Amendment. When the Committee called witnesses, it permitted Mr. St. Clair to ask questions of them “pursuant to the rules of the Committee.” 

In addition to the staff presentations and hearings, the Judiciary Committee sought transcripts and recordings of conversations involving the President, and issued eight subpoenas to obtain these records. President Nixon refused to comply at all with five of the eight subpoenas the Judiciary Committee sent him. For the other three, he produced some documents.  For example, President Nixon produced transcripts of 31 of the 42 taped conversations the Committee had sought in the first subpoena. He also invited the Chairman and Ranking Member (without staff assistance) to listen to portions of the tapes at the White House to verify the edited transcripts.  

The last step in the process before voting on the articles of impeachment involved closing arguments. These also occurred in executive session. On July 18, 1974, the Committee heard an oral summation and received a written closing brief from the President’s counsel. The Committee majority and minority staff then presented to the Committee final “summaries of information” based on the evidence and arguments the Committee had heard.  

The Committee’s markup of the articles of impeachment began on July 24, 1974.  On July 27, 29, and 30, 1974, the House Judiciary Committee recommended three articles of impeachment against President Nixon (obstruction of justice, abuse of power, and contempt of Congress). Unlike the prior proceedings, the markup of the articles of impeachment occurred in public session.  

C. Nixon’s Resignation

The articles of impeachment were never considered on the House floor. On July 24, 1974, the Supreme Court’s unanimous decision United States v. Nixon upheld Special Prosecutor Jaworski’s efforts to obtain the “smoking gun” tapes. After the Supreme Court decision, the President released the transcripts of these tapes to the public on August 5, 1974. This release precipitated his resignation on the evening of August 8, 1974 (effective the next day).

III. The Clinton Impeachment

The House formally initiated an impeachment inquiry in the Judiciary Committee on October 8, 1998. The House Judiciary Committee proceedings took into account the fact-finding investigation conducted by Independent Counsel Ken Starr, who had delivered his referral concerning the actions of President Clinton to the House of Representatives on September 9, 1998. On December 12, 1998, the House Judiciary Committee reported out four proposed articles against President Clinton: (1) perjury before a grand jury, (2) perjury in a civil case, (3) obstruction of justice, and (4) abuse of office. The House of Representatives voted to impeach the President on two articles (perjury before a grand jury and obstruction of justice) on December 19, 1998. The Senate received the House Managers on January 7, 1999, and ultimately voted to acquit on both articles 36 days later, on February 12, 1999.

A. The Fact-Finding Investigation

In the case of the Clinton impeachment, the fact-finding investigation was done by Independent Counsel Starr. Mr. Starr’s investigation expanded to include the Monica Lewinsky matter on January 16, 1998, almost four years after Independent Counsel Starr was appointed by the D.C. Circuit to investigate the Whitewater Land Company, and ended on September 9, 1998, when Mr. Starr submitted a 445-page report and 18 boxes of supporting material to the House of Representatives. Under the Independent Counsel statute, Mr. Starr was required to advise the House of “any substantial and credible information [he received] that may constitute grounds for an impeachment.”

President Clinton cooperated extensively with the fact-finding investigation by Mr. Starr.  The following aides to President Clinton testified after being summoned by Independent Counsel Starr’s investigators:

In fact, President Clinton testified before Mr. Starr’s Grand Jury on August 17, 1998.

President Clinton’s administration likewise provided documents (including from the White House, the Department of Defense, the United States Secret Service, and the United States Mission to the United Nations) to Mr. Starr’s investigators. 

As in the case of the Nixon impeachment, President Clinton was given no rights to call or cross- examine witnesses during the fact-finding investigation.  

B. The House Judiciary Committee Proceedings

One month after receiving Mr. Starr’s report, the House passed a resolution on October 8, 1998, initiating impeachment proceedings in the House Judiciary Committee. As in the case of the Nixon impeachment, the Judiciary Committee adopted rules providing the President with the opportunity to participate in the committee proceedings. These included permission for the President’s counsel to attend hearings, request and question witnesses at the hearings, and address the Committee. But as in the case of the Nixon impeachment, there were also limits on the President’s participation. In particular, the President’s counsel was not permitted to participate in Committee depositions.

The Judiciary Committee held 4 days of public hearings. During these hearings, the Committee took hearing testimony from 17 witnesses. One witness was Independent Counsel Kenneth Starr. The other 16 witnesses were suggested by the White House and addressed matters such as how Mr. Starr conducted the investigative process, the historical threshold for impeachment, and whether the Committee should use impeachment in the instance under consideration. The President’s counsel, David Kendall, questioned the Independent Counsel at the hearings.  

In the same time frame, the Judiciary Committee examined related topics, holding a hearing on December 1, 1998, to explore “The Consequences of Perjury and Related Crimes,” and a Subcommittee on the Constitution hearing on November 9, 1998, regarding the “Background and History of Impeachment.” President Clinton’s counsel did not participate in these two related hearings. 

In addition to these public hearings, the Committee deposed two witnesses as part of an investigation into whether the President and his allies pressured Kathleen Willey to lie about an alleged sexual assault by the President. These two witnesses were Daniel Gecker (Ms. Willey’s lawyer) and Nathan Landow (a Democratic Party fundraiser who was alleged to have attempted to influence Ms. Willey’s testimony, and who invoked his Fifth Amendment rights when summoned by the Committee). President Clinton’s counsel was not allowed to participate in the depositions.  

President Clinton cooperated personally in the Committee’s inquiry.  The Committee sent President Clinton 81 Requests for Admission to be answered under oath. President Clinton provided answers to these requests.   

The Committee mark up of the articles of impeachment began on the evening of December 10, 1998. On December 11, 1998, the Committee finished opening statements, and voted to report out the first three proposed articles of impeachment (perjury before a grand jury, perjury in a civil case, and obstruction of justice). On December 12, 1998, the Committee voted to report out the fourth and final proposed article of impeachment (abuse of power). It also declined to recommend the House consider a formal censure of the President.

C. House Floor Proceedings

The House took up the Judiciary Committee’s proposed articles of impeachment on December 18, 1998. On December 19, 1998, the House passed H. Res. 611, impeaching President Clinton on the first and third articles recommended by the Judiciary Committee (perjury before a grand jury and obstruction of justice). 

The House then considered and approved H. Res. 614, providing for the appointment of 13 impeachment managers and charging them with the responsibility of presenting the articles before the Senate. Because the Senate did not take up the articles until after the swearing in of the 106th Congress, the House reappointed the 13 managers on January 6, 1999.

D. Senate Impeachment Proceedings

The Senate received the articles from the House Managers on January 7, 1999.  Initially, the Senate operated under the Senate’s standing Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials. The Senate adopted S. Res. 16 by unanimous consent on January 8, 1999, to give additional structure to the proceedings. 

S. Res. 16 provided a timeline and instructions to the House Managers and the President’s counsels for filing certain motions, submitting substantive briefs, and presenting opening arguments. The resolution then provided time for questioning from the majority and minority—who took turns submitting questions to the presiding Chief Justice to ask to the House Managers and the President’s counsels. After this question and answers stage, S. Res. 16 permitted the Senate to consider a motion to dismiss and motions to add to the record through calling witnesses and providing documents.

After receiving the written submissions, hearing the presentations, and proceeding through questions and answers, the Senate debated and rejected a motion to dismiss the impeachment. It then approved the House manager's motion to: (a) subpoena three witnesses for testimony in depositions; and (b) accept additional documentary evidence and written testimony into the record. The Senate adopted S. Res. 30 to provide specific procedures for taking these depositions and resolving any resulting disputes. The Senate then received testimony from Monica Lewinsky; Senior Advisor to the President Sidney Blumenthal; and close personal advisor to the President, Vernon Jordan. After reviewing their deposition testimony, the Senate declined a request to hear live testimony from Monica Lewinsky, but it unanimously accepted the three witnesses’ testimonies into the record.

After one final presentation of the evidence by the House Managers and the President’s counsel, the Senate entered closed session for deliberation on February 9, 1999. It voted to acquit the President on both articles on February 12, 1999, after three days of closed-door deliberation.

IV. The First Trump Impeachment

The House formally endorsed the first impeachment inquiry into President Trump with the adoption of H. Res. 660 on October 31, 2019. As it was directed in the resolution, the House Permanent Select Committee on Intelligence conducted the fact-finding investigation in coordination with the Committees on Oversight and Reform and Foreign Affairs, issuing a report on December 3, 2019. The House Judiciary Committee took into account the findings of these investigatory Committees and reported out two articles of impeachment on December 13, 2019: abuse of power and obstruction of Congress. The House approved both articles of impeachment on December 18, 2019.

A. The Fact-Finding Investigation

As in the case of the Nixon and Clinton impeachment inquiries, the primary fact-finding investigation occurred prior to the proceedings in the Judiciary Committee. The House Intelligence Committee led this investigation. The procedures followed by the House Intelligence Committee did not differ in any significant way from the procedures followed during the fact-finding investigations that preceded the Nixon and Clinton impeachments. The principal difference between the Trump fact-finding investigation and the fact-finding investigations in the Nixon and Clinton impeachment inquiries was the categorical refusal of President Trump to cooperate.  

During the fact-finding investigation, the three Committees sought the testimony of dozens of witnesses. In response, the President’s counsel wrote the chairs of the three Committees, asserting that the House’s motives were “illegitimate” and that “President Trump cannot permit his Administration to participate in this partisan inquiry under these circumstances.” Consistent with this directive, the heads of the relevant departments instructed their employees not to comply with Committee requests and subpoenas for testimony. For example, the Under Secretary of State for Management sent letters to attorneys for Ambassador Marie Yovanovitch and Deputy Assistant Secretary of State George Kent “instructing [them], consistent with Mr. Cippolone’s letter, not to appear.” These directives violated multiple federal laws that protect the right of federal employees to communicate with Congress.  

Seventeen current and former public servants chose to follow Congress’ lawful subpoenas, rather than the illegal directives, and appeared before the Committees for depositions (all of which have since been released to the public):

  • Marie Yovanovitch, former Ambassador to Ukraine
  • Michael McKinley, former Senior Advisor to the Secretary of State
  • Kurt Volker, former US Special Representative for Ukraine Negotiations
  • Gordon Sondland, Ambassador to the European Union
  • Bill Taylor, chargé d’affaires for Ukraine
  • George Kent, Deputy Assistant Secretary for European and Eurasian Affairs
  • Lt. Col. Alexander Vindman, National Security Council
  • Dr. Fiona Hill, former Deputy Assistant to the President and Senior Director for Europe and Russia, National Security Council 
  • Laura Cooper, Deputy Assistant Secretary of Defense for Russian, Ukrainian, and Eurasian Affairs
  • Catherine Croft, Foreign Service Officer and advisor to Ambassador Kurt Volker
  • Christopher Anderson, Foreign Service Officer and advisor to Ambassador Kurt Volker
  • Timothy Morrison, Deputy Assistant to the President and Senior Director for Europe and Russia, National Security Council
  • Jennifer Williams, Senior Adviser on Europe and Russia to the Vice President
  • David Holmes, Foreign Service Officer
  • David Hale, Under Secretary of State for Political Affairs
  • Mark Sandy, Deputy Associate Director for National Security Programs, Office of Management and Budget
  • Philip Reeker, Acting Assistant Secretary of State, Bureau of European and Eurasian Affairs

Twelve witnesses, however, followed the directive from President Trump and the agencies and refused to participate in the inquiry, including ten who did so in defiance of congressional subpoenas:

  • Mick Mulvaney, Acting White House Chief of Staff
  • Robert B. Blair, Assistant to the President and Senior Advisor to the Chief of Staff
  • Ambassador John Bolton, former National Security Advisor
  • John A. Eisenberg, Deputy Counsel to the President for National Security Affairs and Legal Advisor, National Security Council
  • Michael Ellis, Senior Associate Counsel to the President and Deputy Legal Advisor, National Security Council
  • Preston Wells Griffith, Senior Director for International Energy and Environment, National Security Council
  • Dr. Charles M. Kupperman, former Deputy Assistant to the President for National Security Affairs, National Security Council
  • Russell T. Vought, Acting Director, Office of Management and Budget
  • Michael Duffey, Associate Director for National Security Programs, Office of Management and Budget
  • Brian McCormack, Associate Director for Natural Resources, Energy, and Science, Office of Management and Budget 
  • T. Ulrich Brechbuhl, Counselor, Department of State
  • Secretary Rick Perry, Department of Energy

The Intelligence Committee held seven hearings to receive public testimony from 12 of the 17 witnesses who testified in depositions. These seven hearings were held over five days from November 13, 2019 through November 21, 2019. 

The Committees also sought documents from the Trump Administration, making 71 specific, individualized requests or demands for records. Document requests and subpoenas were issued to the White House, the Office of the Vice President, the Office of Management and Budget, the Department of State, the Department of Defense, and the Department of Energy. None of these entities provided a single responsive document

The Intelligence Committee, in consultation with the Oversight and Foreign Affairs Committee, prepared a final Trump-Ukraine Impeachment Inquiry Report, which the Intelligence Committee submitted to the Judiciary Committee on December 3, 2019.

B. The House Judiciary Committee Proceedings

H. Res. 660 directed that the proceedings in the House Judiciary Committee follow procedures established by the chair of the Committee on Rules “to allow for the participation of the President and his counsel.” The procedures promulgated by the Rules Committee chair provided the President the opportunity to review the materials that the investigating Committees delivered to the Judiciary Committee, attend the Judiciary Committee’s hearings, object to the admissibility of testimony or evidence, and ask relevant questions at the hearings. Further, the procedures allowed the President to proffer a concluding presentation.

The Judiciary Committee sent President Trump a letter on November 26, 2019, and a letter on November 29, 2019, advising him of his rights to participate in the Committee’s inquiry. The President’s counsel sent the Committee letters on December 1, 2019 and December 6, 2019, declining the offer to participate.   

The Committee held two days of hearings. First, on December 4, 2019, the Committee heard from four experts on the constitutional grounds for presidential impeachment. One of the witnesses at this hearing was requested by the minority.   

The Committee then held a hearing on December 9, 2019, to receive the findings of the Intelligence, Oversight and Reform, and Foreign Affairs Committees. In that hearing, the Judiciary Committee first heard presentations from Judiciary Committee majority and minority counsel. Then the majority and minority counsels for the House Intelligence Committee testified about the findings from the fact-finding investigation.  

On December 11, 2019, the Committee commenced the markup of the articles of impeachment. On December 13, 2019 the Committee voted to report out two proposed articles of impeachment: abuse of power and obstruction of Congress. The Committee published a report to accompany its proposed articles of impeachment on December 16, 2019.

C. House Floor Proceedings

The House took up H. Res. 755 on December 18, 2019, voting to impeach President Trump on both articles: abuse of power and obstruction of Congress. 

Out of concern for the fairness of the Senate trial, the Speaker of the House delayed introducing H Res. 798 (appointing seven impeachment managers and instructing them to exhibit the articles in the Senate) until January 15, 2020.

D. Senate Impeachment Proceedings

The Senate’s standing Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials applied as the backdrop rules for President Trump’s trial.

On a party-line vote early in the morning of January 22, 2020, the Senate supplemented these procedures with Senate Resolution 483 (containing rules controlling opening statements, questioning of the parties, and setting out when the Senate could address particular motions). The Senate rejected all eleven proposed amendments the Democratic minority offered for this resolution.

Under Resolution 483, the parties were given up to 3 days in which to make opening presentations not to exceed 24 hours. The Senators then submitted questions and answers to the parties through the Chief Justice for 16 hours.

On January 31, after 4 hours of presentations on the matter, the Senate voted down the House's request to consider subpoenaing any new witnesses or evidence by a margin of 51-49.

It then agreed to Senate Resolution 488 for handling the end of the trial on a party-line vote (voting down four proposed amendments to the Resolution offered by Democrats). This Resolution provided for four hours of closing arguments by the parties, and then floor statements by the Senators to conclude on February 5. In contrast to the Clinton impeachment trial and all other preceding Senate impeachment trials, the Senate completed the Trump impeachment proceedings without taking any new testimony from witnesses.